On the interpretation of ‘exceptional circumstances’ provisions re costs

Di Lorenzo v The Magistrates’ Court of Victoria [2021] VSC 475 was a case in which the Supreme Court spent 2 hearing days on a judicial review of a costs order worth $5,000.  One paragraph of it piqued my interest, about the interpretation of provisions which say there should be no order for costs of the proceeding, absent special or extraordinary circumstances.  Horrible members of that species of provisions are to be found inside s. 303 of the Legal Profession Uniform Law.

Continue reading “On the interpretation of ‘exceptional circumstances’ provisions re costs”

Legal discipline and the model paedophile

If there were such a thing as a model paedophile, the respondent in Legal Services Commissioner v Ferguson [2021] QCAT 205, a gentleman in his early 60s, might be it.  He had psychiatric ill health and other life difficulties and turned to booze and porn, a small fraction of which was child pornography.  (No one suggested that his collection of presumably legal non-child porn was relevant in any way to his fitness to practice.) Continue reading “Legal discipline and the model paedophile”

Costs Disclosure Obligations Under the Legal Profession Act 2004 (Vic)

The legendary foundation author of Quick on Costs, Roger Quick, has asked me to put this old workmanlike paper on my blog so that he can cite it and link to it in the second edition of that monumental text which he is kindly working on for all our benefits.

What follows does not deal with any developments in the law since 2010, or indeed anything I have learnt since 2010, when I delivered the paper, and so it is out of date, but it might still be of use in some jurisdictions which have not adopted the Legal Profession Uniform Law or by analogy in some cases which are governed by that law.  Sorry about the formatting, which is the product of copying and pasting a Word document into WordPress.

1. Summary

This paper does not deal with contingent, or no-win no-fee retainers.  In relation to all other matters, the take-home points are these: Continue reading “Costs Disclosure Obligations Under the Legal Profession Act 2004 (Vic)”

What the Gobbo royal commission recommended about regulation of the legal profession

Here is Commissioner McMurdo’s Summary and Recommendations from the Final Report, published yesterday, of the Royal Commission into the Management of Police Informants.

Reproduced below is what it says about regulation of the legal profession.  There will be more complaints about barristers in the future.  Victorian barristers would be well advised to take out the top up insurance available to members of the Victorian Bar which includes a primary layer insurance against defence costs of disciplinary investigations including by the Victorian Legal Services Commissioner. Continue reading “What the Gobbo royal commission recommended about regulation of the legal profession”

The tariff for rudeness: a reprimand

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 Victoria [1994] VicSC 7 at p. 6 (Marks J); Medical Practitioners Board of Victoria v Swieca [2009] VCAT 419 at [52] (a tribunal of three presided over by Deputy President Dwyer). This principle has been reiterated in A Practitioner v The Medical Board of Western Australia [2005] WASC 198 at [62], in LSC v Moore [2010] VCAT 742 at [44] (Member Butcher) and in LSC v Long [2011] VCAT 1164 at [24] (Deputy President Macnamara) and in LSC v Sapountzis [2010] VCAT 1124 (Member Butcher).  Most recently, see VLSC v VH at [27] et seq per Vice President Hampel [2018] VCAT 1498. Continue reading “The tariff for rudeness: a reprimand”

Re-raising complaints-(not)

In Cahill v Victorian Legal Services Commissioner [2017] VSC 177 (Keogh J); [2017] VSCA 283 (Kyrou JA with whom the other Justices of Appeal agreed), the previous Victorian Legal Services Commissioner closed a disciplinary complaint against a solicitor once related proceedings were commenced. Despite then being functus officio, at the complainant’s request he ‘re-raised’ the complaint once the proceedings ended in what he regarded as inconclusive circumstances.  He prosecuted the practitioner, who successfully sought judicial review on the basis that the Commissioner was not entitled to have a second go at the investigation.  The Commissioner appealed unsuccessfully to the Court of Appeal.  Apparently, that was the end of it.

This case reaffirms the principle that statutory authorities cannot revisit their final decisions because they change their mind or come to appreciate that they are wrong: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, 603; Semunigus v Minister for Immigration [2000] FCA 240; (2000) 96 FCR 533, 540 [55]; Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 (20 December 2016) [48] (Nettle JA). Continue reading “Re-raising complaints-(not)”

LPUL’s transitional provisions

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 which may be disregarded even absent an appeal: The Herald and Weekly Times Pty Ltd v Victoria [2006] VSCA 146 at [33].  I suspect the people who dream up these things would say that counsel have an obligation to assist Tribunals to avoid over-reaching.

This post principally considers Griffin v The Council of the Law Society of NSW [2016] NSWCA 364, a judgment of Sackville AJA with whom Ward and Gleeson JJA agreed, and Council of the NSW Bar Association v Nagle [2018] NSWCATOD 104, a decision of the Hon F Marks, Principal Member.

If you have been the subject of disciplinary orders since 1 July 2015, you might want to dust them off and check whether the correct Applicant sought them under the correct legislation.  If not, you might be entitled to disregard them, and require their removal from the disciplinary register.

To save you from having to puzzle over the detail of what follows, here is my summary, which assumes that you understand that Schedule 1 to the Legal Profession Uniform Law Application Act (Vic), which Schedule I refer to as ‘the LPUL’, stands as a law of NSW by virtue of the Legal Profession Uniform Law Application Act (NSW): Continue reading “LPUL’s transitional provisions”

Suit for fees goes badly wrong but could have gone much worse

An ACT practitioner seems to me to have been skilfully represented, escaping with findings of unsatisfactory professional conduct, a reprimand and a fine.  The decision in Council of the Law Society of the ACT v LP [2017] ACAT 74  just shows how far cooperation and a persuasive articulation of remorse and insight can go.

The practitioner illegally sued his former client for fees in circumstances where he knew that the very person who had instructed him, a director of the client who had given a director’s guarantee and so was a third party payer, had sought taxation.  Generally speaking, solicitors cannot sue their clients for fees once the client has commenced taxation.

In support of applications for default judgment, and to wind up the corporate client, the practitioner represented to the court, including on oath, that there was no dispute about fees.  Given that the director, a builder, was the alter ego of his building company client, the proposition that the company did not dispute the fees attracted a charge of professional misconduct by swearing a false affidavit, a thoroughly serious allegation.  By a plea bargain, it was downgraded to a weird charge of unsatisfactory professional conduct (varied by me for readability):

The practitioner breached his general law ethical duty of professional conduct or the duty owed to the director of his former client pursuant to Rule 1.1 of the Legal Profession (Solicitors) Rules 2007 to continue to treat the former client fairly and in good faith, and not to treat it otherwise than in an honourable and reputable manner during the dispute over costs owed by the director or the former client.

Rule 1.1 was itself a weird old rule:

‘A practitioner should treat his or her client fairly and in good faith, giving due regard to the client’s position of dependence upon the practitioner, his or her special training and experience and the high degree of trust which a client is entitled to place in a practitioner.’

Perhaps the horribleness of the original false affidavit charge’s drafting contributed to the prosecution’s willingness in the end to back away from it and retreat into the weirdness set out above.  The original charge (again, varied by me for readability) was: Continue reading “Suit for fees goes badly wrong but could have gone much worse”

Is there an obligation to put in cross-examination that the witness is lying?

Professor Hampel has been telling me recently that the rule in the House of Lords’ judgment in Browne v Dunn (1893) 6 R 67 is much mis-understood by advocates and decision makers alike.  Another judge apparently gives a talk to the participants in the Victorian Bar’s readers course each intake emphasising the narrowness of the obligation.  Good advocates and judges, it appears, find unnecessary and inelegant recitations of strings of ‘I put it to yous’ as irritating as good advocates find irritating the suggestions from not so good decision makers that matters which were not required to be put to a witness must be put, or, after the event, ought to have been put.

The general tenor of these teachings is that there is an obligation to put matters to opposing witnesses less often than is sometimes assumed, or that a counsel of caution in putting things to witnesses to be on the safe side of the rule has its forensic downsides. As I understand it, the perception is that some counsel see the need to lay out their whole case to opposing witnesses to give them an opportunity to comment on it, regardless of whether the witness is already well appraised by witness statements or documents of the cross-examiner’s client’s case or whether the matters put in fact contradict or tell against any evidence of the witness.

Professor Hampel’s half-serious theory about the confusion flowing from the decision — that no one has ever read it — may be correct.  Someone else seems to have had the same concern, having set up a website devoted solely to putting the hitherto obscurely reported and difficult to find decision on the net.  (And, what do you know? The case is actually about relations between solicitors and clients which is principally about privilege and the liability of a solicitor to action for words spoken between solicitor and client.)

But there is one aspect of the rule which repeatedly attracts criticism when it is not complied with.  There is an obligation to squarely put to a witness in cross-examination allegations of dishonesty (or, to use a precise synonym, fraud). Lord Herschell said at 70-71: Continue reading “Is there an obligation to put in cross-examination that the witness is lying?”

The ‘implied undertaking’ which is really a substantive legal obligation

Associate Justice Derham from time to time produces beautifully succinct and thorough summaries of the law, especially laws relating to procedure, in his careful judgments.  Busy practitioners are very grateful.  Here is his most recent such summary, from Fotopoulos v Commonwealth Bank of Australia [2017] VSC 61.  It is a helpful exposition of the substantive legal obligation which is sometimes referred to as an ‘implied undertaking’ or ‘the Harman principle’ after the House of Lords’ decision in Harman v Secretary of State for the Home Department [1983] 1 AC 280. Continue reading “The ‘implied undertaking’ which is really a substantive legal obligation”

Tribunals not bound by the laws of evidence

Update, 10 August 2017:  It once seemed to me having read Pizer’s Annotated VCAT Act (2015) at [8.60] that there was an argument to be made that the Evidence Act 2008 might have some operation to the extent that it is not over-ridden by s. 98 of the VCAT Act 1998, in that the Evidence Act 2008 empowers courts to do certain things which might not be described as part of the ‘rules of evidence’ referred to in s. 98. The Evidence Act 2008’s definition of ‘Victorian court’ (in whose proceedings the Act is said to apply) is inclusive of tribunals bound by the law of evidence, rather than excluding all tribunals which are not bound by the law of evidence, and VCAT has been regarded as a ‘court’ for various purposes. But the Court of Appeal has effectively decided (albeit without considering my thought) that the Evidence Act 2008 simply does not apply in VCAT: Karakatsanis v Racing Victoria Limited [2013] VSCA 305 at [32] – [34].

Update, 9 August 2017:  To gather the law together in one place:

(a) Pizer & Nekvapil, Pizer’s Annotated VCAT Act treats this question at [VCAT.98.160] citing Curcio v. Business Licensing Authority (2001) 18 VAR 155 at [26]; Pearce v. Button (1986) 8 FCR 408 at 422; Golem v TAC (2002) VAR 265 at [9(iv)]; Secretary to the Department of Infrastructure v Williamstown Bay and River Cruises Pty Ltd [2011] VSC 191 at [59]; and Medical Practitioners Board of Victoria v Saddik [2010] VCAT 366 at [44].

(b) A reader commended Justice Giles’s article ‘Dispensing with the Rules of Evidence’ at Vol 7 No 3 Australian Bar Review.

(c) Consider also Danne v The Coroner, [2012] VSC 454, noted here.

Original post: Here is a useful collection of interstate and federal law about what statutes are actually to be taken to mean when they say that a tribunal is not bound by the laws of evidence (like VCAT), from Justice Refshauge’s reasons in Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283: Continue reading “Tribunals not bound by the laws of evidence”

Judges’ referrals to the ATO, police, Legal Services Commissioners

Often enough, judges refer the conduct of lawyers appearing before them (or disclosed by the case they are adjudicating) to the Legal Services Commissioner for investigation.  A recent example is Re Manlio (no 2) [2016] VSC 130.  Judges also refer the conduct of non-lawyer parties to investigative agencies, e.g. where a tax fraud is suggested by evidence in the case.

Generally, this is not done pursuant to any statutory directive or authority.  An exception is s. 202 of the Legal Profession Uniform Law which requires the Costs Court to refer a matter to the Legal Services Commissioner if it considers that the legal costs charged, or any other issue raised in the assessment, may amount to unsatisfactory professional conduct or professional misconduct.  (Compare s. 3.4.46 of the Legal Profession Act 2004 which authorised rather than required the Taxing Master to make a referral.)

I have never been particularly clear about the nature of such a referral, or as to the procedures which ought to be followed. Gibson DCJ set out the principles recently, at least as they apply in NSW, in Mohareb v Palmer (No. 4) [2017] NSWDC 127: Continue reading “Judges’ referrals to the ATO, police, Legal Services Commissioners”

Disciplinary prosecution halted because Law Society’s reasons for deciding to prosecute were inadequate

Updates, 3 & 4 February 2019: The NSW Court of Appeal dismissed the Law Society’s appeal in Levitt: [2018] NSWCA 247; meanwhile a decision to like effect was made in AB v Law Society of NSW [2018] NSWSC 1975, the subject of this blog post.

Original post: The NSW Supreme Court has quashed decisions of the NSW Law Society to commence disciplinary proceedings against a Sydney solicitor following complaints that the solicitor advanced allegations of negligence in a costs assessment against two barristers without an adequate factual foundation: SAL v Council of the Law Society of NSW [2017] NSWSC 834, a decision of Wilson J. The Court restrained the Council from continuing the disciplinary prosecution which had been stayed pending the application for judicial review. The Council’s reasons were inadequate in not dealing with exculpatory material advanced by the practitioner during the investigation, and in not disclosing the Council’s path of reasoning in relation to why the conduct was professional misconduct rather than unsatisfactory professional conduct or why it was appropriate to prosecute rather than make an in-house determination such as a reprimand and a compensation order.

The implications of this decision are profound, for many a set of reasons at the conclusion of a disciplinary investigation are likely no better than those which were examined in this case, for the simple reason that no one has ever really sought to take the adequacy of these kinds of reasons to task.  First, those who are subject to current prosecutions might seek prohibition to stop them in their tracks: if you are involved in a disciplinary prosecution, careful study of this decision is advised. Secondly, with the rise in the quality of reasons at the conclusion of a disciplinary prosecution which one presumes the decision will generate, it may be hoped that better decisions about what to prosecute will be made.  Continue reading “Disciplinary prosecution halted because Law Society’s reasons for deciding to prosecute were inadequate”

The Civil Procedure Act’s overarching obligation to keep costs proportionate

The Civil Procedure Act 2010 applies to proceedings in the Magistrates’ Court, County Court, and Supreme Court but not federal courts or VCAT. Its overarching purpose is to

‘facilitate the just, efficient, timely and costs effective resolution of the real issues in dispute’: s. 7. Continue reading “The Civil Procedure Act’s overarching obligation to keep costs proportionate”

Appeals from VCAT on the basis of inadequate reasons

A failure to give reasons is an error of law.[1] Seriously inadequate reasons are corrosive of public confidence in the administration of justice and ought not to be tolerated by an appeal court, since justice must not only be done but be seen to be done. This is the first public policy informing the requirement for reasons by courts and court-like tribunals. As the Supreme Court has observed:

‘To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant.’[2]

That is especially so in relation to factual determinations where a right of appeal lies only on a question of law. Even more especially so in a quasi-criminal[3] prosecution with serious consequences for the practitioner in which a disciplinary prosecutor carries the burden of proof as described in Briginshaw v Briginshaw. Continue reading “Appeals from VCAT on the basis of inadequate reasons”

$5,000 fines in lawyers’ disciplinary prosecutions

Update, 30 March 2020: VLSC v Flanagan [2020] VCAT 363: repeated breaches of undertakings and failures to keep Law Aid up to date over many years.

Update, 2 July 2019: See Council of the Law Society of NSW v Thadsanamorthy [2019] NSWCATOD 96: 3 counts of professional misconduct including dishonest misappropriation of trust monies; 6 counts of unsatisfactory professional conduct.

Update, 13 June 2019: See Council of the Law Society of NSW v Gurusamy [2019] NSWCATOD 89 (eight counts of professional misconduct).

Original post: In this post, I noted the New South Wales Court of Appeal’s review of fines in solicitors’ disciplinary proceedings. I did my own little survey of Victorian cases recently in order to justify to the VCAT a joint submission as to penalty following a plea.

How naughty does a lawyer have to be to cop a fine of $5,000 in a disciplinary prosecution where that is the principal penalty (often paired with a reprimand, and costs of about $5,000)?  This naughty:

Continue reading “$5,000 fines in lawyers’ disciplinary prosecutions”

NSWCA surveys fines in NSW lawyers’ discipline decisions over a decade

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 survey penalties in like cases has always been an important part of sentencing and should be an important part in imposing disciplinary sanctions.  Barbaro  (2014) 253 CLR 58; [2014] HCA 2 and Cth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476 do not suggest to the contrary.  They say that the purpose of a survey of like sanctions is to promote consistency in penalties but not the establishment of a range of available sanctions deviation from which is appellable.  Buchanan JA observed in R v Macneil-Brown [2008] VSCA 190, (2008) 20 VR 677 at [130]:

‘counsel can best assist a sentencing judge, not by advancing what they consider to be sentences at the lower or upper limits of a sound sentencing discretion, but by making submissions as to the existence and nature of aggravating and mitigating circumstances and providing some guide to the manner in which other judges have approached like cases by supplying sentencing statistics and citing passages from decided cases which bear upon aspects of the instant case.’

I would submit that any survey of fines as a disciplinary sanction must take into account, as an important aspect of the analysis, the financial situation of the person or persons liable to pay it.  The specific deterrence of a fine will vary greatly from one practitioner to another.  Practitioners who struggle, for personal reasons, are more likely to get themselves into trouble in the first place, and to exacerbate it by less than perfect intercourse with the Legal Services Commissioner.  Their financial situations often deteriorate too.  Specific deterrence may be achieved by imposition of a fine much smaller than would be imposed on a flourishing practitioner raking it in.  General deterrence will also be achieved if the Tribunal is transparent in taking account of financial circumstance.  In such a case, the Tribunal might indicate the kind of fine which might have been imposed had the practitioner enjoyed an average post-tax income.

Furthermore, the costs burden borne by the practitioner ought also to be taken into consideration.  Costs and fine are inter-related in this way: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [88] (Kirby J speaking for the Court) applied by analogy in LSC v Bechara [2009] NSWADT 313. The extraordinary costs practitioners are liable to in Victoria following disciplinary prosecutions would very often be more than adequate to achieve specific and general deterrence.  If you are prosecuted and reprimanded, made the subject of an editorial on the front page of the Commissioner’s website, and have to cough up $40,000 in unrecoverable solicitor-client costs reasonably incurred and costs liability to the Legal Services Commissioner, that is going to make you think just as hard about doing it again as any comparatively trivial fine you might cop.

Finally, one must be astute to inflation.  In my experience, people tend to exaggerate the effect of inflation when considering older fines.  Here is a calculator which assists in measuring in today’s dollars a fine imposed some years ago.

For some reason, notwithstanding that NSW is now a part of the legal profession uniform law, the other participant in which is Victoria, no Victorian fines were part of the survey.  That strikes me as unusual, since there is a whole statutory office the purpose of which is to promote interstate uniformity in the application of the Uniform Law: the Commissioner for Uniform Legal Services Regulation.  Russo’s Case was decided under the old legislation which the LPUL replaced, and which legislation in fact governed the prosecution was one of the issues on appeal.  Interestingly, apparently because it was thought that there were no relevant differences between the two regimes, that question was not decided.

This is what the NSWCA said about its survey of fines, and about the appropriate fine in this case: Continue reading “NSWCA surveys fines in NSW lawyers’ discipline decisions over a decade”

NSW solicitor who didn’t pay counsel’s fees struck back on

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 a denial of procedural fairness by NCAT.  The Tribunal had telescoped the questions of liability and penalty into one hearing.  It had failed to give Mr Russo sufficient notice of the fact it was considering striking him off despite the fact by the end of the trial, the Commissioner was not seeking such an outcome any more. Now he’s been struck back on by the NSW Court of Appeal, a fine of $20,000 substituted for his misconduct: Russo v Legal Services Commissioner [2016] NSWCA 306.  (In fact, the striking off never came into operation, because he got a stay along the way.) Continue reading “NSW solicitor who didn’t pay counsel’s fees struck back on”

Legal Services Commissioner’s new decision making powers

The Victorian Legal Services Commissioner has published a report on his new proactive regulation of the profession.  It tells how risk profiles of practices are being constructed with the assistance of academics to target trust audits and audits of firms more generally (a new thing for law practices which are not ILPs).  It also tells about the exercise of the power to make binding decisions, and alerted me to the fact that the Commissioner now publishes redacted versions of costs determinations at this page. The report says: Continue reading “Legal Services Commissioner’s new decision making powers”