Disciplinary prosecutions arising out of criminal convictions and civil findings against professionals

In disciplinary proceedings, prosecutors often wrongly assume that findings in prior decisions (usually criminal convictions) are both admissible and un-challengeable by the respondent.  Neither is true, however, at least where what is relied on by the prosecutor in the disciplinary case is something more than the fact of the conviction (e.g. the fact of the conduct which gave rise to it). Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 is much-cited, but has flown under the radar in Victoria and I must confess that I was ignorant of it until recently. It says as a matter of ratio decidendi that a professional in a disciplinary case is entitled to call evidence to contradict findings made in a previous criminal prosecution, and to do so is not of itself an abuse of process.  The same must be true, a fortiori, I would suggest, in relation to findings in a civil case.

Section 91 of the Evidence Act 2008 is often forgotten, too.  It says that evidence of a Court’s or tribunal’s decision or a finding of fact is not admissible to prove the existence of a fact that was in issue in that proceeding. Not only are reasons usually hearsay and opinion evidence, but the tender of reasons to prove the truth of what they record is specifically prohibited, except to the extent necessary to establish a res judicata or issue estoppel.  Where the common law applies, an even stricter result obtains by virtue of the rule in Hollington v F Hawthorn & Co Ltd [1943] KB 587.

I’m interested to know of how other jurisdictions deal with these questions, which also crop up in personal costs order cases, also discussed below.

Continue reading “Disciplinary prosecutions arising out of criminal convictions and civil findings against professionals”

Riordan J provides pithy summary of some of the more difficult costs principles

Riordan J delights me with his helpful summaries of the law in many of his judgments.  Here is his latest, in relation to costs, particularly in multi-party cases of mixed success and success only as to nominal damages, and contractual promises to indemnify against costs, from Saafin Constructions Pty Ltd v MAG Financial and Investment Ventures Pty Ltd [2021] VSC 702 at [27] et seq:  Continue reading “Riordan J provides pithy summary of some of the more difficult costs principles”