Powers of compulsion and the privilege against penalties

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 express provision is made in relation to the separate and distinct privilege against self incrimination. His Honour found at [135] – [195] that:

  • the Coroner’s Court is a court of record, so it is not a non-curial setting for the purposes of penalty privilege analysis;
  • there is a tension in the dicta of the High Court as to the applicability of the penalty privilege in non-curial settings which did not need to be decided in this case;
  • the will of parliament is an abstract concept and is not ascertained by speculating about what was probably going through parliamentarians’ minds (at [175]);
  • it is wrong to say that where specific exceptions by reference to common law privileges are given by statute to a statutory obligation to comply with a power of compulsion, other statutory privileges should be taken by implication to have been abrogated;
  • rather, it is correct to start from the proposition that common law privileges are not intended to be abrogated otherwise than by clear words or necessary intendment;
  • s. 23 of the Coroners Act 2003 (SA) (reproduced below) did not impliedly abrogate the privilege against penalties: parliament legislated specifically in relation to the privilege against self-incrimination out of an abundance of caution ([183]), and the fact that it did not also do so in relation to the penalty privilege is neither here nor there.

A second set of reasons, including in relation to costs is at [2020] SASC 77.

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All the High Court Cases About Lawyers

Here is my preliminary attempt at consolidating all the High Court cases about lawyers in one place. If I’ve missed any, let me know; it’s a work in progress.

Re Coleman (1905) 2 CLR 834; [1905] HCA 19 The Court gave the following judgment, about a NSW solicitor who had attempted to engage in what sounds like a fraudulent scheme to defeat a client’s creditor and been suspended from practice for 12 months: ‘This is not a case in which special leave to appeal should be granted. Looking at all the circumstances of the case we can see no reason to doubt that the decision of the Supreme Court was substantially correct. That Court was of opinion that the applicant had been guilty of professional misconduct which merited punishment, and we see no reason to differ from them. That being so, it is difficult to see how we can properly interfere with the exercise of the Court’s discretion in inflicting punishment upon one of its own officers. In such cases the nature of the punishment is a matter entirely within the discretion of the Supreme Court itself.’

The decision has been cited only in Re Daley, below.

McLaughlin v Daily Telegraph Newspaper (1906) 4 CLR 548; [1906] HCA 78

Re Daley (1907) 5 CLR 193; [1907] HCA 32 The Court declined to grant to a Sydney solicitor special leave to appeal against his suspension from practice for 18 months for making a fraudulent representation to counsel to induce him to accept a brief for which he went unpaid. The Court, applied Re Coleman, reiterating it was a matter for the Supreme Court of NSW.

The decision has been cited only by Tasmanian cases, as an illustration of the use of the word ‘punishment’ to describe the orders made in disciplinary proceedings.

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Cases applying Barwick’s Case, and related legislative developments

In a recent post, I provided a case note of the High Court’s decision in Barwick v Law Society of NSW (2000) 169 ALR 236. This rather workmanlike post looks at decisions which have applied it, and Barwick-related legislative developments in NSW and elsewhere not replicated in Victoria, which have sought to undo the strictness of Barwick, some but not all of which are now with us in Victoria through the Legal Profession Uniform Law.

But it notes that Melbourne’s legislators have in the main signally not taken up the NSW penchant for passing provisions ever more generous to the State with regard to allowing matters to be prosecuted whether or not they were the subject of a complaint or an investigation which was authorised by the relevant legislation and played by the rules.

Perhaps that is because in relation to these questions the practitioners of Victoria — my clients excluded of course — have been inexplicably more supine than, or the Victorian disciplinary tribunals not as punctilious as, their Sydney counterparts such that the need for the provisions has not impressed itself on the minds of our parliamentarians.

But perhaps it is because Victoria thinks that in the context of the battle between the vast resources of the state and a citizen faced with prosecution in which costs of scores and hundreds of thousands of dollars are regularly ordered, against which the citizen may not obtain any insurance if s/he is a solicitor, the State should be encouraged to play by the book by the prospect of its prosecutions falling over if they don’t. After all, if the first prosecution falls over, they can usually go back and do it again, playing by the book.

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What can barristers charge for?

As I mentioned in a couple of recent blog posts (here and here), I gave a talk to the Junior Bar Conference in 2017, so what follows is a few years old now. Youngsters were invited to ask questions in advance by some secret process, and one anonymous young thing asked the question ‘What can barristers charge for?’, which I thought to be an odd question indeed. But being an earnest fellow, I answered it. As follows:

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2019: Not Such a Good Year (Environment, Part I)

Coming up soon is my summary of 2019 from an environmental perspective (awful, worse than ever). It was the world’s second hottest year, Australia’s hottest and driest year ever, the ocean’s hottest year. And Australia’s greenhouse emissions kept on going up. But there was some good-ish news, generally in the form of proposals and predictions, which I should get out of the way first before returning to curmudgeonliness.

1. The distinguished University of Melbourne economist, Professor Ross Garnaut, had Super-Power published by Black Inc. He was Prime Minister Hawke’s economic adviser, and a former Chairman of a bank and a gold miner, so he’s not exactly a communist. As Australia’s ex-Ambassador to China, he knows that country well too. The book is perfectly briefly summarised on the 7am podcast here (or in a less digestible one hour lecture by Prof Garnaut here). He says:

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2019: Not Such a Good Year (deaths)

I had a good enough 2019. I enjoyed interesting work, went on a trip to Singapore, Bangalore, Mysore, and Mangalore (no kidding), spent a magical Easter in Mallacoota where I have holidayed since I was a schoolboy, and enjoyed an eccentric roadtrip involving a lot of wheat and barley which took in Tittybong, Rainbow, Warne, Brim, Sea Lake and my favourite pub, the Victoria Hotel in Dimboola. Furthermore, it was suddenly insanely cool to play the flute. Jean-Pierre Rampal and James Galway could only marvel at the excessive fame of Time’s entertainer of the year, the classically trained flautist Lizzo who, it is said, also twerks, raps and sings, and is apparently an icon of a year which suddenly saw full figured women come into their own.

But 2019 did not treat well Cardinal Pell, Julian Assange and other journalists, the climate problem, China, forests, or white leftist politics.

Three interviews were notably illustrative. First, Andrew Bolt’s hectoring but nevertheless excruciating interview of Gladys Liu, the Hong Kong born federal member for Chisholm, who professed to have no recollection of her long associations with Chinese Communist Party fronts, and seemed not to want plainly to condemn the building of military bases in the middle of the South China Sea. It was part of an annus horribilis for China’s image abroad.

Second, Emily Maitlis’s interview of the Queen’s child, Prince Andrew, reminiscing about his friendship with the late alleged gigolo Geoffrey Epstein, which got him sacked from royal duties.

Third, the former accountant and former Deputy Prime Minister Barnaby Joyce’s interview of himself in his Christmas message, bizarrely predicting in relation to the climate emergency of which he is an architect that if we don’t respect ‘the higher authority, beyond our comprehension, right up there in the sky,’ ‘then we’re just fools, we’re going to get nailed’. The climate change enthusiast got 55% of the primary vote in his rural seat in this year’s federal election. Presumably his former media adviser and, as of 2019, mother of the 6th Barnababy, was not consulted about the Christmas message.

In response to Mr Joyce’s video, God sent the apocalypse and Prime Minister Morrison secretly went on Hawaiian holiday, (Fiji, where he holidayed in May was presumably no longer an option since he seriously pissed them off in August), before fleeing back to the Canberra bubble when the holiday was outed, sent in the armed forces and reservists to the initial displeasure of the firies, and promptly made a political tv ad celebrating what he had only been dragged reluctantly into by public opinion.

First, though, the deaths of 2019. Australian icons passed on: Bob Hawke, who latterly amassed a wealth of more than $50 million as a China consultant, Tim Fischer, Margaret Fulton, Clive James, Les Murray, Dimmey’s (aged 166), the Uluru climb (35 climber deaths later).

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Lawyers who are ‘law practices’: a distinction between the private and the professional hats?

The other day, the Supreme Court granted an application to dismiss a summons for taxation on the basis that, as a solicitor in sole practice, the applicant was a ‘commercial client’, to whom the costs provisions of the LPUL (including the right to seek taxation as between solicitor and own client) did not apply.

In the course of doing so it rejected an argument that she was not a commercial client because, in seeking representation in her matrimonial dispute, she was not wearing her professional hat; she was just a woman who needed a family lawyer who happened to be a solicitor.

Often enough, I come across lawyers who see distinctions between themselves and their law practices, even though they are sole traders. I have seen individuals purport to retain themselves qua law practice, and think they have to give costs disclosure to themselves. Sole traders sometimes refer in correspondence to ‘our Mr Soandso’, writing in the first person plural. One memorable former practitioner, who worked out of his home and had no staff, called his firm ‘Horak, Frankovich, Rose & Cross, Lawyers and Public Notaries’.

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Barwick v Law Society of NSW: a case note

Sir Garfield’s eldest son Ross convinced the High Court to prohibit his further prosecution in a disciplinary tribunal. Though there had been no procedural unfairness to him, a disciplinary investigation by the Law Society hadn’t followed the rules, such that the Tribunal did not have jurisdiction: Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 169 ALR 236. His counsel was Major-General Paul le Gay Brereton, now a judge of the Supreme Court of NSW. In this companion post, I consider the legislative developments in relation to the provisions in question post-Barwick, in NSW, and the authorities which have applied Barwick.

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This time it’s the NSW bureaux bungling: the Great Delegation Debacle #2

Update, 6 December 2019: The Justice Legislation Amendment Act (No 2) 2019 (NSW) was assented to on 22 November 2019. Clause 1.16 of the Schedule is what you want to look at. The whole scheme the NS Welsh devised is purer than the Victorian one: their proceedings were dismissed, and costs orders made. The validating legislation allows those proceedings to be recommenced within 6 months, but the costs orders made upon dismissal stand.

Original post: Oh dear, I can feel another bit of retrospective cock-up fix-up blowing through parliament, the NSW parliament this time. Imagine how excited the pollies must be to be diverted from the drought to pass retrospective legislation which has to go through pesky scrutiny of bills committees, because the peak body of NSW Lawyers and the regulator of NSW Lawyers couldn’t draft and read a delegation properly.

A retired judge sitting in NCAT has determined that own motion investigations under the LPUL by delegates of NSW’s Legal Services Commissioner, e.g. the Council of the Law Society of NSW, have been procedurally irregular because of the terms of the relevant delegation, robbing NCAT of jurisdiction in two cases which have fallen over and probably revealing past decisions to have been nullities notwithstanding that the point was not taken in them.

The leading decision is Council of the Law Society of NSW v DXW [2019] NSWCATOD 101, a decision of the Hon. Frank Marks, a Principal Member. He said, in a nutshell: to have a valid prosecution, you must have a complaint made to the Commissioner or an own motion investigation commenced by the Commissioner. Here there was no complaint, because the Law Society was not a delegate of the Commissioner’s power to make a complaint to himself, i.e. commence an own motion investigation, but had purported to make a complaint to itself, then investigate it, then decide to prosecute it and then prosecute it, all while the Commissioner apparently went about his other business. No complaint, no jurisdiction, case dismissed.

Council of the Law Society of NSW v Judah [2019] NSWCATOD 135 simply applies DXW and is noteworthy principally because the Tribunal of Deputy President Westgarth and two others awarded costs of the proceeding to the practitioner, finding that the commencement of the ‘proceedings otherwise than in conformity with the provisions of the Uniform Law’ was a ‘special circumstance’ which justified the costs order against the Commissioner.

As to the Great Delegation Debacle #1, see this blogpost. I tell, you, whenever you’re litigating against Legal Services Commissioners, you should always call for and inspect the instruments of delegation by which various actors in the disciplinary process acted. The delegations are sometimes set out in the Commissioners’ annual reports, and the current delegations by the VLSC are here. Sometimes, they get them wrong (watch this space…).

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The Great Transitional Provisions Debacle #2

The Legal Profession Uniform Law commenced in Victoria and NSW on 1 July 2015. The Legal Profession Act 2004, which created the statutory office of Legal Services Commissioner was repealed at the same time, though transitional provisions gave the Act, and the office, ongoing operation. As explained by my last post, the new statutory office of Victorian Legal Services Commissioner was created. The Legal Services Commissioner was to tidy up part-complete complaints and disputes unless regulations specified a substitute (e.g. the Victorian Legal Services Commissioner). No such regulation was made until just the other day. Michael McGarvie retired. Fiona McLeay was appointed Victorian Legal Services Commissioner in February 2018.

All new complaints were to be made to the Victorian Legal Services Commissioner, or so it seemed. Transitional provisions are found in Schedule 4 of the LPUL. Clause 27 appears to state specifically what is to happen in the case of a complaint first made post-LPUL about pre-LPUL conduct, whether the complaint is characterised as a simple consumer matter, a consumer matter which is a costs dispute, a disciplinary matter, or some combination of those things. It commences:

This clause applies to conduct that– (a) happened or is alleged to have happened before the commencement day; and (b) could have been, but was not, the subject of a complaint (or, if relevant, a request for dispute resolution).

If that condition is satisfied, the investigation may be commenced under the LPUL. Then the LPUL applies ‘with the necessary modifications’, so long as ‘an investigation of the relevant kind could have been commenced under the [Legal Profession Act 2004] in relation to the conduct had the old legislation not been repealed.’ The Victorian Legal Services Commissioner can’t take disciplinary action which is more onerous than the Legal Services Commissioner could have taken under the 2004 Act. Whatever ‘disciplinary action’ means, it is unlikely to refer to action taken in or following an investigation of or attempt to resolve a complaint to the extent that the Commissioner characterises it as a ‘consumer matter’, rather than a ‘disciplinary matter’.

The language is a bit vague because it had to deal with the transition between two different states’ Acts which were repealed and substituted with the LPUL. Perhaps it is that vagueness which has had an unfortunate result. That result is that the Costs Court has made a ruling which the Victorian Legal Services Commissioner interprets as depriving her of LPUL jurisdiction to deal with complaints she characterises as consumer matters where the conduct in question pre-dates 1 July 2015 and perhaps even where the conduct in question post-dates 1 July 2015 but is in relation to a matter in which instructions were first taken before 1 July 2015.

The consequence is that since the Costs Court’s decision, consumers with complaints about their lawyers’ pre-1 July 2015 conduct have been deprived of rights they might reasonably think parliament intended to bestow on them, including the right to have expert, costs-free, extra-curial determination by the Victorian Legal Services Commissioner of costs disputes and negligence claims, the right to have consumer matters ‘investigated’, and the right to go to the Commissioner’s office with disputes where the total fees are up to $100,000 or more, instead of only disputes where the fees are up to $25,000.

The LPUL wrought big changes in this space in Victoria. Previously, the Legal Services Commissioner could only attempt to resolve what were called under the Legal Profession Act 2004 ‘civil complaints’ (the species of which were ‘costs dispute’, ‘pecuniary loss dispute’, and ‘other genuine dispute’). if he failed, the parties had to fund and bring VCAT proceedings themselves, exposing themselves to the risk of an adverse costs order. Under the LPUL, the Victorian Legal Services Commissioner is made into a decision maker, the go to decision maker for disputes about comparatively small amounts of fees ($10,000 or less).

The Commissioner must deal with all complaints properly made: s. 315. She can investigate and deal with complaints which she characterises as costs disputes where the total fees are less than $100,000 or where the fees which are in dispute are $10,000 or less excluding GST. She can make determinations in relation to disputed costs of up to $10,000 plus GST. (It is not the case that her dispute resolution and investigation powers are available only where the total fees are $10,000 or less or the amount of fees in dispute is less than $10,000. All that is limited is her power to make a binding decision. Investigation using her powers of compulsion, and expert free dispute resolution services are still of enormous benefit to punters even if, at the end of those processes, they still have to go off to the Costs Court or VCAT to have their costs dispute determined.)

The purpose of this post is to consider the Costs Court’s decision, Sullivan v Snodgrass, unreported, 23 October 2017 (I can send you a copy), and the Victorian Legal Services Commissioner’s interpretation of it. I conclude that there are arguments to be made against the finding made by the Costs Court, and in any event, the Court’s reasoning can have operation only in relation to post-1 July 2015 complaints about legal costs because the reasoning depends on cl. 18 of the transitional provisions, and that clause only preserves the operation of provisions relating to legal costs. Even while the Costs Court’s decision stands, the Commissioner would appear to have full power under the LPUL to investigate, attempt to resolve, and determine post-1 July 2015 complaints about pre-1 July 2015 conduct except to the extent that the complaint falls within the 2004 Act’s provisions about civil complaints which are costs disputes. Very likely, the Victorian Legal Services Commissioner could circumvent this finding of the Costs Court by characterising a post-1 July 2015 complaint about a matter in which instructions were first given before 1 July 2015 as a disciplinary complaint.

Why the powers that be didn’t fix this problem while they were fixing the Great Transitional Provisions Debacle #1 is a mystery to me.

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The great transitional provisions debacle #1

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 since the 1 July 2015 commencement of the LPUL and repeal of the Legal Profession Act 2004 (Vic) in relation to investigations which commenced before that date. It also seeks to validate retrospectively orders made by VCAT in disciplinary prosecutions in matters arising from such investigations brought by the VLSC instead of the predecessor office, the Legal Services Commissioner (LSC). The relevant provisions are even going to commence retrospectively, on the date of the Bill’s second reading (Weird! Why?).

You’re probably sick of my fascination with transitional provisions by now, but this is actually quite the silent snafu which just shows why everyone should sweat over transitional provisions. Usually I curse those who draft these damned bits of legislation, but not this time. For once the drafters made their intentions clear in clauses 26 and 27 of the transitional provisions. It’s just that, presumably, nearly everyone assumed they intended something else, and read the transitional provisions with that bias.

If a person without standing (e.g. the VLSC) sought to invoke VCAT’s 2004 Act jurisdiction, then VCAT’s decisions were nullities (The Herald and Weekly Times Pty Ltd v Victoria [2006] VSCA 146 at [33]) whether or not the respondent lawyer took the point (since parties cannot bestow jurisdiction on a statutory tribunal: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163, 167), as this blog points out from time to time. So the validating legislation will retrospectively impose penalties upon practitioners where none previously existed as a matter of law. That’s quite an exercise of retrospective power.

The funny thing is that the VLSC responded to my clients’ arguments that she ain’t got no power and VCAT ain’t got no jurisdiction under the 2004 Act by saying that she did, and even convinced VCAT of that in one case in which the proper Applicant point was squarely taken. And the Attorney-General seemed to say in the second reading speech that the situation after the ‘validation’ will reflect parliament’s clear intent all along (hmmm). So it’s kind of weird if the VLSC or the Legal Services Board has asked the Victorian parliament to pass a law which undermines the VLSC’s contention that she has always had power to tidy up pre-1 July 2015 complaints, and kind of weird that the parliament can be bothered to clarify by ‘validation’ that which is apparently perfectly clear already. It’s all a bit ‘Nothing to see here, folks, move right along.’

The other weird thing is that VCAT seems to continue to exercise 2004 Act jurisdiction on the application of the VLSC, even after the introduction of this Bill into parliament, even while parliament’s lower house seems to be of the view that legislation is needed to allow the VLSC to invoke that jurisdiction. It could not be that VCAT is exercising jurisdiction it does not have because it is confident that such a course will in the future be retrospectively validated, so one wonders if anyone has actually raised this legislation with VCAT at a high level.

Legal regulators in Victoria seem to get themselves into this kind of imbroglio from time to time. Consider the great delegation debacle and Byrne v Marles -Gate.

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Claims to client legal privilege made by regulators

One of my clients sought in the Supreme Court of Victoria prohibition against the Victorian Legal Services Commissioner continuing a prosecution she had initiated in VCAT. He settled it and so it will not go to judgment. He said the prosecution was an abuse of process, in part because of a breach by the Commissioner of her statutory obligation to investigate as expeditiously as possible. The Commissioner’s delegates had claimed to be entitled to put the investigation on hold pending the determination of Supreme Court proceedings which had related subject matter (echoes of Victorian Legal Services Commissioner v Cahill [2017] VSCA 283).

Twice the Commissioner and the holder of the antecedent statutory office of Legal Services Commissioner had taken advice of counsel, two of them in fact. In response to a Notice to Produce, the Victorian Legal Services Commissioner redacted that part of her and the Legal Services Commissioner’s alleged delegates’ decisions which referred to the advice, and even redacted references to the names of the barristers.

A procedurally embarrassing saga in South Australia has thrown up some interesting decisions, referred to in Keung v Abbott [No 2] [2019] SASCFC 39, in which the Full Court shut down an attempt to prosecute a lawyer by proceedings commenced on 17 April 2015 for conduct which allegedly occurred between 2007 and January 2010. One of them suggests that regulators cannot claim privilege for advice they take and rely on to make administrative decisions such as whether to prosecute. Those decisions include:

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Snapping on judgment and misleading by silence

Legal Services Commissioner v Yakenian [2019] NSWCATOD [98] is about a solicitor of Fairfield in western Sydney, neighbour of Cabramatta and Villawood. He was referred to the NSW Legal Services Commissioner by District Court Judge, her Honour Wass DCJ.

The defendants’ solicitor requested particulars of Mr Yakenian’s builder client’s statement of claim and said the defendants would provide defences within a reasonable time after the particulars were given. They invited the solicitor to advise them if he had any difficulty with this course. He did not do so. There was also talk of a security for costs application.

The same day as the particulars were given, the solicitor snapped on default judgment for more than $750,000, filing a formal affidavit required by NSW’s procedural rules which did not mention the correspondence referred to, and then issued a bankruptcy notice against one of the defendants 3 days later, all while the defendants remained unaware they were judgment debtors and were presumably leisurely scraping together their defences. The day after the bankruptcy notice, the defendants’ solicitors wrote expressing their understanding ‘that the plaintiff would not file for default judgment until the defendants’ solicitors had served the defences, and requesting that the Solicitor let them know if that was not the case.’ He did not do so. The defendant’s solicitors said they anticipated being able to file the defence by 8 August 2016.

Even though he explained that he and counsel both advised his client not to snap on judgment and he only reluctantly followed his client’s informed instructions to do so (the solicitor said he felt pressured to comply with the instructions because the client was a significant part of the solicitor’s then fledgling practice) the Legal Services Commissioner charged him with professional misconduct constituted by snapping on judgment; by misleading the defendants’ solicitors by silence; by misleading the court by silence in his affidavit in support of default judgment; and (most puzzlingly to my mind) by issuing a bankruptcy notice without notice to the defendants.

The decision is the result of a guilty plea in a case where the solicitor represented himself, but the NCAT waved it through without much apparent anxiety about the implications of their findings and whacked him with a fine of $7,500, plus costs.


Time limit for new disciplinary complaints against Victorian and NSW lawyers

Section 272 of the Legal Profession Uniform Law says complaints about lawyers, other than costs disputes, must be about conduct alleged to have occurred within the three years before the date of the complaint. Since today is the 4th anniversary of the commencement of the LPUL, you might think that conduct nearly six years ago could not be complained about unless the Victorian Legal Services Commissioner extended time. But the Commissioner might not agree.

Costs disputes have a shorter limitation period: 60 days after the legal costs became payable (which will not necessarily be from the date of the bill or the due date in the bill: Batrouney v Forster [2015] VSC 230 at [219], [226], [228]; Bannon v Nauru Phosphate Royalties Trust [2017] VSC 214 at [71]).

These days, all complaints are made to the Victorian Legal Services Commissioner under the LPUL, even where the conduct allegedly occurred before the LPUL’s commencement on 1 July 2015: Sch. 4, cl. 27. Then the LPUL applies to the conduct ‘with the necessary modifications’ (whatever that means) and subject to the proviso that ‘disciplinary action’ (whatever that means) taken under the LPUL may not be ‘more onerous’ (whatever that means) than would have been the case under the Legal Profession Act which preceded the LPUL.

This post considers whether the VLSC’s position that conduct which occurred before 1 July 2015, and within the 6 years prior to a complaint made after 1 July 2015, may be complained about as of right, and if not, in what circumstances the Commissioner or a delegate may extend the time. It also considers whether such decisions are reviewable. I’m interested to hear your experiences in this realm, especially how NSW’s Legal Services Commissioner is handling this issue.

Practitioners ought to be vigilant about these issues because if the Commissioner is investigating conduct which allegedly occurred more than three years prior to a post-1 July 2015 complaint, and has not properly exercised the discretion to extend time (e.g. because no extension decision was actually made, or the decision to extend the time limit was purportedly made by an investigations officer who is not a delegate of the Commissioner’s discretion to extend time), then the Commissioner and her delegates may not have power to compel information and documents, such as would justify practitioners divulging client (or other) confidences.

If there is one thing (apart from actually working out what the law is before responding to disciplinary complaints) which I wish solicitors would get right more often in disciplinary investigations, it’s this: before divulging client confidences, check that the person demanding the information is actually a delegate of the Commissioner, and check that the Commissioner is actually exercising power in a properly constituted investigation.

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Claims of privilege over the whole of a solicitor’s file

A pretty house in Mt Duneed, a suburb of Geelong

There is a dispute playing out in the Supreme Court of Victoria about whether a contract to sell land in Mount Duneed (not the house in my picture) was concluded and enforceable.  The putative vendors say no: there was nought but a proposed sale.  The putative purchasers issued a subpoena for the production of the putative vendors’ solicitors’ file, no doubt to check what the putative vendors were saying to their solicitors at the relevant time, and to see what their solicitors were saying to them, about the putative binding contract.  (I wonder about the relevance of the file, since whether or not there is a binding agreement is to be objectively determined and what the negotiating parties thought about whether there was a contract ought to be irrelevant, but that was not the issue dealt with in the decision discussed below.) 

The solicitors produced their file, noting that the documents within it were privileged.  The putative vendors objected to inspection, asserting that the whole file was privileged.  They made an affidavit in support of the privilege claim.  In Regent 125 Pty Ltd v Brdar [2019] VSC 177, Judicial Registrar Matthews upheld the claim over the whole file.  The putative purchasers failed to convince her that the putative vendors’ affidavit was formulaic and did not descend to the detailed communication by communication justification required by the authorities.

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A matter where ‘matter’ mattered

A property developer who owns most of Melbourne’s theatres, including the Princess, the Regent, the Forum and the Comedy, sought to tax his lawyers’ fees for representing him in two appeals he brought. They had acted for him in litigation over a property development in Queensland, defending a claim that the developer and various of his companies owed the other side three million bucks.

It went on and on: the developer lost, then appealed successfully, lost on the remitter, and appealed unsuccessfully, though the other side only got a fraction of what they were after. (Incidentally, though the other side only got judgment for 10% of what they were after, the Court of Appeal held that Sloss J had not erred in ordering costs against the developer on the basis that costs should follow the event and that no issue-by-issue costs split was justified). It was an expensive exercise for the developer because the lawyers charged him $3M for defending the claim for $3M.

The original retainer was in May 2005, at which time the Legal Practice Act 1996 was in force. Then the Legal Profession Act 2004 came into operation on 12 December 2005. After that, some of the lawyers’ bills said that Mr Marriner could seek taxation under the Legal Profession Act 2004. (I’d say most Victorian lawyers’ bills had this problem after 12 December 2005 in relation to the many engagements which continued to be regulated by the 2004 Act after that date.)

The Costs Court threw out the developer’s summons for taxation for want of jurisdiction. The lawyers had charged throughout on an hourly rate, without demur from their client the developer. The Court found that the Legal Practice Act 1996 regulated his relations with them. And under that Act, there could be no taxation of fees charged under an hourly rates costs agreement: s. 101(2).

Which Act applied depended on (a) what a ‘matter’ was for the purposes of the transitional provisions between the 1996 Act and the 2004 Act, (a question I posted about here, but in relation to the next statute along, the LPUL) and (b) how different phases of the litigation should be characterised for that purpose.

Costs Judge Wood AsJ’s reasons for finding that it was all one matter governed by the 1996 Act (including the appeals which his Honour was clear were separate proceedings) are reported as Marriner v Meerkin & Apel [2019] VSC 36.

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The disciplinary investigator’s duty of disclosure; more on inadequate reasons following a disciplinary investigation

Summary AB v Law Society of NSW [2018] NSWSC 1975 is a decision of Davies J given on 19 December 2018, quashing the Law Society’s decision under the Legal Profession Uniform Law (NSW) to prosecute a former solicitor for falsely attesting a passport application form, having been told, and believing, that the signature was genuinely applied by the signatory, but not in the solicitor’s presence. The decision was quashed because the Law Society failed to disclose to the solicitor, despite demand, during the disciplinary investigation all relevant documents, in breach of the obligation of procedural fairness, and because its reasons for its decision to prosecute were not reasons at all, and so amounted to jurisdictional error. In this latter respect, the decision is an application of the law set out in Levitt v Council of the Law Society of NSW [2017] NSWSC 834 (see this blog post) and the decision dismissing the appeal from that decision, reported at [2018] NSWCA 834.

How the decision came to be anonymised is not referred to in the reasons. Can anyone tell me how that happened?

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Costs in disciplinary prosecutions under the Legal Profession Act 2004: excellent news for disciplined solicitors?

Summary The Legal Profession Act 2004 was repealed on 1 July 2015.  But transitional provisions probably give it ongoing life in relation to all disciplinary investigations which commenced prior to that date (see this blog post), even where the resultant disciplinary prosecution post-dates 1 July 2015.  This post suggests that such prosecutions in VCAT (of which there are still many) are now subject to VCAT’s usual costs regime under s. 109 where the presumption is that there will be no order as to costs, and there is no favouratism for the Commissioner. 

That is a great improvement on the previous situation when costs were in practice always awarded to the Commissioner and never awarded against the Commissioner, with the Commissioner often getting full costs despite being unsuccessful in some respects.  The costs of the Commissioner’s employee were allowed on County Court scale D, despite the remuneration under that scale greatly exceeding the wages paid to the employees on top of fees paid to counsel, on whom the Commissioner is extraordinarily reliant.  My impression is that the average costs order in a simple matter which is largely uncontested is  $10,000, but costs orders of $50,000 and up may attend upon contested matters which take several days to try (take VCAT’s most recent disciplinary decision, for example: $87,000 claimed by the Commissioner against a poor old sole practitioner out in the suburbs).

The previous position prevailed because of a provision in the VCAT Act 1998 which has been amended consequent upon the repeal of the Legal Profession Act 2004 so as no longer refer to that Act. 

Mind you I have tried this argument out in VCAT twice already and made no progress with it, though VCAT has provided no reasons as to why it is incorrect.

Continue reading “Costs in disciplinary prosecutions under the Legal Profession Act 2004: excellent news for disciplined solicitors?”