Court of Appeal wreaks havoc with most current Legal Services Commissioner investigations

Update, 2 September 2010: Just noticed this and thought to store it away here as potentially interesting: http://jade.barnet.com.au/Jade.html#article=229752.

Update, 7 August 2010: The saga continues.  See this post.

Update, 17 June 2008: The Age has caught up with this story. It’s a funny old article. Weirdest is this comment ‘A prominent senior counsel said the system was unfair, and any complaint should be forwarded immediately to the subject of the complaint.’ In my experience, the Commissioner does almost invariably send the complaint immediately to the solicitor, and that’s not what the case was about anyway.

Original post: In Byrne v Marles [2008] VSCA 78, the Court of Appeal has thrown a very lean cat amongst some very fat pigeons in a decision which may invalidate all current investigations of the Legal Services Commissioner unless it is overturned on appeal or remedial legislation is passed with retrospective effect (which was the response after the great delegation debacle). The Court found that the Commissioner’s referral to the Law Institute for investigation of what she characterised as a disciplinary complaint was ‘invalid’. In following her absolutely standard practice, the Court said the Commissioner had failed to give natural justice to the solicitor by deciding to characterise the complaint as a disciplinary rather than civil complaint and by deciding not to dismiss it summarily without investigation, without allowing the solicitor to be heard in relation to those preliminary decisions. Anyone — complainant or lawyer — who has a current complaint which is not heading in the desired direction should seek advice from a lawyer with expertise in relation to the professional discipline of lawyers. It is conceivable that the decision may provide options for those against whom professional discipline prosecutions have succeeded under the Legal Profession Act, 2004. Given that the Commissioner never, in my experience, invites discussion about the preliminary questions of whether to dismiss the complaint before commencing an investigation, or on the proper characterisation of the complaint, it seems likely that most of the Commissioner’s decisions to investigate complaints will be ‘invalid’. Continue reading “Court of Appeal wreaks havoc with most current Legal Services Commissioner investigations”

And another Court of Appeal sets aside another gross overcharging conviction

As reported in today’s Australian Financial Review, the NSW Court of Appeal has told the Administrative Decisions Tribunal’s Legal Services Division that it got it wrong when it found a Sydney solicitor guilty of gross overcharging. The case is  LN v Legal Services Commissioner  [2007] NSWCA 130  Though the solicitor signed the bill, he did not really read it, and the Legal Services Commissioner obviously didn’t think hard enough about the charge, since the solicitor got off on the basis that he did not have personal culpability for gross overcharging. It is not well understood that there is no concept of vicarious liability for professional misconduct or unsatisfactory professional conduct. He might have been disciplined for failure to supervise, I suppose, but that was not what he was charged with. The relevant decisions below are here and here.

Costs ordered against Law Institute in unsuccessful opposition to appeal against sentence of solicitor

The last post referred to part 1 of the last chapter of an intriguing saga. The second and final part of that chapter is the decision on costs: PJQ v Law Institute of Victoria (No. 2) [2007] VSCA 132. The President of the Court of Appeal rejected the following submissions by the Institute:

  • that the Institute was just a contradictor, assisting the Court by ensuring that it had two views to choose from, and was akin to an amicus curiae;
  • that it would have been entirely inappropriate for a professional regulator such as the Institute to consent to the relief sought by the appeal;
  • that the cases which say that ‘costs ought not to be awarded against a statutory tribunal which makes an order in excess of its powers unless it can be demonstrated that the tribunal has been guilty of serious misconduct or corruption or has acted perversely’ are relevant (‘this submission is entirely misconceived. The Institute is not a tribunal. Rather, it appears before the Tribunal as a party. Its function is that of prosecutor. No question arises here of the Tribunal’s costs, since the Tribunal did not appear.’);
  • it was relevant that parliament had directed that costs of the Full Tribunal hearing were not to be awarded against the Institute save in exceptional circumstances (s. 162, Legal Practice Act, 1996; see now Victorian Civil and Administrative Tribunal Act 1998, Sch 1 cl 46D(3));
  • because it made no submissions as to penalty, the Institute did not lead the Tribunal into error. Continue reading “Costs ordered against Law Institute in unsuccessful opposition to appeal against sentence of solicitor”

Court of Appeal sets aside unduly harsh outcome in gross overcharging prosecution

PJQ v Law Institute of Victoria[2007] VSCA 122 is the part 1 of the last chapter in a story of good tactical plays characteristic of professional discipline specialist Sam Tatarka in the representation of a solicitor charged with gross overcharging, and applying trust monies to pay his fees without the appropriate paperwork. It sounds like a plea bargain was entered into whereby the solicitor pleaded guilty to the charges on the basis that what led to the overcharging was overzealous representation and disorganization rather than dishonesty and in return, the prosecutor — the Law Institute of Victoria — would not make submissions as to penalty. But that is speculation. When it came time for ‘sentencing’, the solicitor offered an undertaking to the Tribunal that any file in which he proposed to charge more than $20,000 would be independently costed by a costs consultant. The Tribunal enquired whether he would submit to such costing by the Law Institute’s costs assessing service. The solicitor said yes.

In Law Institute of Victoria Limited v PJQ [2005] VLPT 8, the Full Legal Profession Tribunal came down hard, accepting the expert opinion of a man without a law degree that appropriate legal costs for a proceeding of the kind in which the solicitor had represented his client were half what he had charged, and suspending the solicitor from practice for 12 months. To the surprise of the President of the Court of Appeal, the Tribunal made no mention of the alternative to suspension represented by the undertaking despite going through the ritualistic ‘no punishment happening here’ recitations (‘Our task does not involve punishment of the legal practitioner. Our task is to provide for the protection of the public, including deterrence of the legal practitioner and the profession generally from like conduct…’; ‘Conscious of the necessity to place the barrier high before depriving a member of the profession of their practising certificate we have given all the circumstances of this case the most careful and repeated consideration.’ etc.).

President Maxwell, with whom Justices Chernov and Nettle agreed, held that the Tribunal’s inexplicable failure to mention in its reasons the undertaking offer suggested that its sentencing discretion had miscarried.  His Honour actually acknowledged with refreshing forthrightness that penalisation is part of sentencing for professional discipline offences, but, by his words, sought to give real meaning to the concept that protection of the public is what professional discipline is all about, by quashing the Full Tribunal’s orders and, on resentencing, making no orders in recognition of the substantial costs already incurred by the solicitor and the partially endured suspension: Continue reading “Court of Appeal sets aside unduly harsh outcome in gross overcharging prosecution”

Misconduct charge no. 21 against Victorian silk stayed as abuse of process

The latest and possibly last chapter in the tribulations of Victoria’s most senior female silk is to be found in M v VCAT [2007] VSC 89, a decision of Justice Mandie. The barrister was charged on 4 July 2005 with 24 charges of misconduct, and ended up after a hearing of the first half of the charges with a finding of only 4 counts of unsatisfactory conduct. All but one of the second half were abandoned, but the Bar, as prosecutor, sought to amend the last remaining charge so as to substitute an allegation of unsatisfactory conduct for the original charge of misconduct. VCAT found it had no power to grant leave to amend a charge, and the barrister convinced the Supreme Court to stay the hearing of the last charge as an abuse of process, VCAT having refused to do so. It was an abuse because the Bar wished to proceed with the misconduct charge not so as to make out an allegation of misconduct, but so as to provide a vehicle for a finding of unsatisfactory conduct under a statutory power which empowered VCAT to make a finding of unsatisfactory conduct after hearing a misconduct charge. Justice Mandie found:

‘[58] … It would bring the administration of justice into disrepute to permit the Bar to prosecute a charge of misconduct while at the same time saying the opposite, namely, that it was not advancing a case of misconduct or seeking a finding of misconduct. It is an entirely different position to that which might have arisen had the charge been proceeded with and, after all the evidence was in, the Bar conceded that the evidence supported only a lesser charge [i.e. unsatisfactory conduct]. The use of a misconduct charge simply to obtain a finding of a lesser charge when the case for misconduct is completely disavowed before the hearing commences is, I think, a misuse of the statutory procedure and, indeed, as the plaintiff submitted, contrary to the spirit of the Act, given the requirement that the Bar be satisfied when bringing the charge that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of misconduct. If the Bar has reached the view, as it has, that a case of misconduct cannot be made out and it does not seek to do so, such a charge ought not as a matter of justice and fairness be heard.’ Continue reading “Misconduct charge no. 21 against Victorian silk stayed as abuse of process”

Chairman, Full Legal Profession Tribunal criticised for abusing solicitor in misconduct prosecution

In B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 (Ormiston, Charles and Batt JJA), the majority criticised the Chairman of the Full Legal Profession Tribunal for retorting to the solicitor’s submission that “These proceedings are a full time occupation for me” with “Occupation or obsession, Mr [G]?”. They said it was taken, with some justification, as a term of abuse. But they found that, and some other comments, raised no case of apparent bias such that the Chairman should have excused himself. But the majority said at [62] that: Continue reading “Chairman, Full Legal Profession Tribunal criticised for abusing solicitor in misconduct prosecution”

Procedural fairness: “Murray letters” considered by Victorian Court of Appeal

B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 (Ormiston, Charles and Batt JJA)

The Law Institute corresponded with the solicitors in this matter between 1998 and October 2000. The CEO Ian Dunn, wrote what is known in the game as “a Murray letter” on 16 October 2000. That is a letter summarising the tentative conclusions of an investigation giving a practitioner a final opportunity to comment before a final decision to lay a charge. The two solicitors in this case were given 7 days in which to respond. One of them replied at length and indicated he did not desire an extension of time, the other did not request an extension. Later, their lawyers took the point that the charge was invalid and the Tribunal’s jurisdiction not properly invoked. The Tribunal found it had jurisdiction. The Court of Appeal had no jurisdiction to entertain an appeal in relation to this aspect of the Tribunal’s decision because, it found, the finding that sufficient time had been afforded was a question of fact, and it had jurisdiction only to hear appeals on a question of law. Nevertheless, the majority ventured some dicta. Continue reading “Procedural fairness: “Murray letters” considered by Victorian Court of Appeal”

Breach of undertakings leads to 12 month suspension for doctor

This is another salutary lesson against professionals representing themselves. An argument that the disciplinary tribunal had not accorded procedural fairness by failing to warn in advance of the possibility of a suspension was given short shrift.

And the courts’ reticence to disturb the findings of specialist professional tribunals, even when exercising appellate jurisdiction under a statute providing for appeals from such tribunals, was expressly articulated in Papps v Medical Board of South Australia [2006] SASC 234. That was an unsuccessful appeal by the doctor to the Full Court of the Supreme Court of South Australian from an unsuccessful appeal by him to a single Supreme Court judge from the decision of the Medical Practitioners Professional Conduct Tribunal suspending his right to practice for 12 months as a result of a miscellany of allegations, including a breach of practice management undertakings he had made to the Medical Board of South Australia. Another of the allegations was overenthusiasm as a medico-legal consultant: Continue reading “Breach of undertakings leads to 12 month suspension for doctor”

3 years’ holiday for not making ongoing discovery

Guss v Law Institute of Victoria Ltd [2006] VSCA 88 (Maxwell P gave the lead judgment, Callaway and Chernov JJA agreeing)

A solicitor’s right to practice was suspended for three years and he was ordered to pay costs of $31,500 for failing to comply with the obligation of ongoing discovery in relation to what was prima facie a privileged copy of a document produced by an expert witness a few days before trial which, had the existence of the copy document been disclosed to the other side, might have put the other side onto a train of enquiry which might have led to relevant evidence. Continue reading “3 years’ holiday for not making ongoing discovery”

Misconduct in acting in face of duty and associate’s interest conflict

Legal Services Commissioner v JAF [2006] VCAT 581 (Cullity, Shattock, Hannebury) Acting for vendor and purchaser; conflict between duty and interest (of solicitor’s associate)

The Full Tribunal were not impressed with this solicitor who acted for the vendor and the purchaser which was a trust of which his wife was a beneficiary, but did the rule they relied on extend to prohibit acting in the face of a conflict between duty and the interest of an associate? Continue reading “Misconduct in acting in face of duty and associate’s interest conflict”

Justice Gillard says: prosecute the same offence as many times as you like

Update: This decision was reversed on appeal: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301.

Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 (Gillard J)

Justice Gillard said doctors get no res judicata and allowed the doctors’ regulator to fix a bungled prosecution following a complaint by deciding to investigate the matter already decided under its power to investigate of its own volition. Continue reading “Justice Gillard says: prosecute the same offence as many times as you like”