Commissioner’s unexplained delay reduces penalty for serious misconduct

Speaking of the need for speed as Justice Heydon and I were on this blog yesterday, there are two other instances worthy of reporting.

First, the High Court has recently considered the need for speed in criminal proceedings, and were not nearly as excited about it as in commercial litigation. This time, they rolled the court below for saying that enough delay was enough and staying a criminal prosecution that had hung around for too long, resulting in the loss of exculpatory evidence.  The decision in R v Edwards [2009] HCA 20 might have application by analogy in disciplinary cases. It is blogged about at Quis Custodiet Ipsos Custodes, and there is a short note in the latest Law Institute Journal.

Secondly, delay by the Legal Services Commissioner has had a consequence in a serious disciplinary prosecution.  Parliament requires the Bureau de Spank to conduct their investigations ‘as expeditiously as possible’, and to give the complainant progress reports at least 6 monthly: s. 4.4.12, Legal Profession Act, 2004.  If the Commissioner complies with these injunctions, the degree of expedition which is possible is not always great.  In fact, sometimes the rate at which investigations progress is astonishing.  So glacial can progress be that the possibility that climate change sceptics might actually have some kernel of truth buried away beneath all of their hot air (-not) begins to nag at you.  There is a letter in the latest Law Institute Journal complaining about the Commissioner’s April 2009 response to a solicitor’s September 2008 letter (August 2009, p. 10).

An unexplained period of apparent inactivity of 18 months was taken into account in favour of the lawyer prosecuted for misconduct in Legal Services Commissioner v ER [2009] VCAT 1445.  This is a factor which might be brought to bear in many a plea in a disciplinary prosecution.  What Judge Ross’s tribunal said on this issue is:

74 Mr [R] contends that the determination of this matter has been delayed as a consequence of the Applicant’s inaction.  In particular the Respondent refers to the delay from 18 April 2007 and until 29 September 2008.

75 The reference to 18 April 2007 arises because this is the date on which Mr [R]’s lawyers sent a letter to the Commissioner setting out a range of matters which the Commissioner was asked to take into account in deciding what action, if any, should be taken under s 151 of the 1996 Act (the Nicholson’s letter).  Section 151 deals with what happens after an investigation into a complaint is completed.  Subsection 151(2) provides, relevantly, that an RPA must bring a charge to the Tribunal against the legal practitioner the subject of the investigation if satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of misconduct.

76 The Respondent says that during the period of about 18 months from 18 April 2007 until 29 September 2008 neither he nor his solicitor heard from Professional Standards or the Applicant.  It is submitted that this delay remains unexplained and inexplicable.

77 The Commissioner’s written submissions of 13 May 2009 address the issue of delay and assert that the bulk of the delay in this matter has been caused by Mr [R] raising unmeritorious arguments in his defence which have necessitated investigation and consideration by the Commissioner.

78 We accept that a number of the propositions advanced on Mr [R]’s behalf in the Nicholson’s letter of 18 April 2007, lacked merit.  We also accept that the matters raised would have necessitated investigation and consideration by the Commissioner.  But while these matters could reasonably be expected to take some time, perhaps a period of up to six months, we are not persuaded that VCAT Reference No. they adequately explain the delay of about 18 months between 18 April 2007 and 29 September 2008.

79 It follows that the Applicant has been responsible for a delay of 12 months in having these matters determined.  The fact that the Respondent’s actions may have contributed to an additional delay (ie. over and above this 12 months) is not to the point.  The Respondent only relies on the delay occasioned by the Commissioner’s inaction.

80 The 12-month delay attributable to the Commissioner is a mitigating factor [footnote: R v Kane [1974] VR 759 at 767; see generally Fox, RG, ‘Criminal Delay as Abuse of Process’ (1990) 16 Monash University Law Review 64] and we have taken it into account in determining an appropriate penalty.’

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