The Australian Professional Liability Blog
Stephen Warne on professional negligence, regulation and discipline around the world
Justice Blue’s clear and thorough reasons in Bell v Deputy Coroner of South Australia [2020] SASC 59 usefully rehearse and summarise the law relating to the privilege against penalties, its application in non-curial settings, and the circumstances in which an intention will be imputed to parliament to abrogate the privilege, including in the situation where …
Continue reading “Powers of compulsion and the privilege against penalties”
There is an old and well established privilege, the privilege against penalties, which is a relative of the privilege against self-incrimination. It entitles solicitors facing disciplinary prosecution to stay silent throughout the proceedings until the end of the Commissioner’s case unless the Tribunal makes an order requiring provision of written grounds and an outline of …
Continue reading “Legal Services Commissioner seeks to overturn privilege against penalties”
I have been banging on about the privilege against penalties for a long time. VCAT used routinely to require respondents in disciplinary proceedings to submit witness statements prior to the final hearing. Then the Court of Appeal admonished it for doing so in Towie v Medical Practitioners Board of Victoria [2008] VSCA 157. (That case stands for …
Continue reading “VCAT’s Legal Practice List and the Privilege Against Penalties”
In Legal Profession Complaints Committee v PJO’H [2011] WASAT 95 (S), delivered on 20 February 2012 and not yet on Austlii, the Tribunal helpfully reviewed the penalties awarded in the gross overcharging cases over the years before suspending the respondent from practice for 6 months (the Committee wanted 18). Two other things are notable about …
There are still disciplinary cases coming through the system in respect of conduct which occurred before 12 December 2005, the date on which the Legal Profession Act, 2004 commenced. Back in those days, the maximum fines the Legal Profession Tribunal could render under the Legal Practice Act, 1996 were $1,000 for unsatisfactory conduct and $5,000 …
Continue reading “Disciplinary penalties for pre-2006 conduct”
Graymarshall Pty Ltd v Department of Environment, Climate Change & Water [2010] NSWLEC 54 is a decision of NSW’s Land and Environment Court about the application of the privilege against penalties (related to, but separate from, the privilege against self-incrimination). A regulator issued a notice compelling the production of information to a company. The statute …
Continue reading “Penalties privilege and the corporate interrogee”
In Victoria v Villan [2022] VSCA 106, the Court of Appeal gave guidance to practitioners in relation to the treatment of non-party witnesses in civil cases where the criminal prosecution of the witness is on the cards, after self-incrimination issues derailed a jury trial in a historical sexual abuse case, occasioning its stay. Given that …
Continue reading “How to interview a witness who might be a defendant”
I had to review the penalties for rudeness by lawyers recently, and what I found is that the usual penalty is a reprimand, even for very rude recidivists. That is not surprising, since a reprimand is a serious professional sanction, not to be equated with a slap over the wrist: Peeke v Medical Board of …
In Arya v TD [2020] VCAT 923, Member Tang, a former President of the Law Institute now a full-time member of VCAT, had to decide what were the fair and reasonable costs (in the Legal Profession Uniform Law sense of that phrase) of more than 11 hours’ work by a Victorian barrister of 18 years’ …
Update: The Bill became legislation when royal assent was given on 17 September 2019. Original post: There is a bill before the Victorian parliament, the Legal Profession Uniform Law Application Amendment Bill 2019. What the last few sections propose to do, rather sotto voce, is ‘validate’ retrospectively everything the Victorian Legal Services Commissioner has done …
Continue reading “The great transitional provisions debacle #1”
Nothing is quite as un-fun as argument about transitional provisions, but it is often unavoidable, since disciplinary tribunals are usually creatures of statute, and if the new or the old statute is mistakenly invoked, the Tribunal may purport to exercise jurisdiction which it does not have, with the result that its orders will be nullities …
In the Legal Profession Uniform Law (Vic), there are simple prohibitions, prohibitions breach of which are punishable by civil penalties, and criminal offences punishable by fines and jail. The civil penalty provisions are new to the LPUL compared with the previous legislation. What does it all mean?
Russo v Legal Services Commissioner [2016] NSWCA 306 was the subject of my previous post. The Court engaged in a comparatively sophisticated review of disciplinary outcomes in like cases. The purposes of this post is to reproduce that review and comment on the variables which ought to be taken into account in any proper survey of past outcomes. To …
Continue reading “NSWCA surveys fines in NSW lawyers’ discipline decisions over a decade”
Salvatore Russo, a solicitor of 29 years’ standing, was struck off NSW’s roll of solicitors on 16 April 2016 by NCAT. He had received payment from his client for counsel’s fees but not paid counsel for years. Then he was high-handed in response to the client’s entreaties when counsel sued the client directly. The Court of Appeal found …
Continue reading “NSW solicitor who didn’t pay counsel’s fees struck back on”
Parliament is considering a bill to re-instate the disciplinary register, and to prohibit the Bureau de Spank from trumpeting its successes before the respondent practitioners’ appeal rights are exhausted: Legal Profession Uniform Law Application Amendment Bill 2016 (Vic.). Cl. 150E of the Bill proposes to prohibit the Legal Services Board from providing to the public information about disciplinary …
In my last post, I briefly surveyed VCAT’s approach to the Barbaro principle in disciplinary proceedings against solicitors. I just came across a presentation given by the Supreme Court’s Justice Garde, VCAT’s President which touches on this issue. The presentation is titled ‘Alternative Dispute Resolution – Can it work for Administrative Law?’. It was given …
Continue reading “VCAT’s President’s extra-judicial views on Barbaro in VCAT disciplinary hearings”
The Federal Court has given a landmark decision about regulatory prosecutions. In federal jurisdictions and state jurisdictions which follow the new decision, professional disciplinarians like ASIC and Legal Services Commissioners will no longer be able to enter into plea bargains in the expectation that the court or tribunal hearing them will rubber stamp the agreed …
I wrote about the test case on the application of penalties privilege to disciplinary prosecutions of solicitors brought by the Legal Services Commissioner here. Now the Commissioner has made another novel application in the same case, which usefully provides some law on the appropriateness of prosecution applications for summary judgment in disciplinary prosecutions (Legal Services …
Continue reading “Summary judgment in a disciplinary prosecution?”
Update, 17 October 2014: K-R v Council of the Law Society of New South Wales [2014] NSWCATOD 115 provides an example of poor decision making when a disciplinary investigation was resolved by a reprimand imposed by the NSW Law Society instead of by disciplinary prosecution in NCAT (NSW’s VCAT). The Council got the law wrong, and got another thing …
Continue reading “To accept a reprimand or not to accept a reprimand?”
Young v Hones (No 3) [2014] NSWSC 499 is a decision about the costs of a lawyers’ negligence claim which was defeated by advocates’ immunity. It and the (No 2) decision are interesting because: 1. The Court determined the immunity point against the plaintiff in the trial of a preliminary question, having previously dismissed the lawyers’ …