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 Commissioner v LJS  VCAT 649). The answer, according to VCAT’s President, Justice Garde? Not very appropriate, certainly not in this case, despite the complete non-involvement of the respondent solicitor, because: Continue reading “Summary judgment in a disciplinary prosecution?”
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 argument identifying in broad terms what is in issue. And even if such an order is made, compliance will not require the foreshadowing of any evidence or the admitting or denying of any facts.
The other day, a full frontal attack by the Legal Services Commissioner on the privilege in disciplinary prosecutions of solicitors did not result in it being distinguished out of existence. Though there was no contradictor in the hearing, the President of VCAT, Justice Greg Garde, gave the challenge short shrift in LSC v Spaulding  VCAT 292.
Since practitioners started increasingly exercising their right to stay silent after the disciplinary investigation has concluded and before the conclusion of the Commissioner’s case, the Commissioner has begun increasingly to seek orders for the service of a notice to admit, despite the absence of any rule-based regime in VCAT governing the consequences of non-response to such notices. Some practitioners have consented to such orders and VCAT has made them. There may be grounds to review decisions in such cases where the practitioner did not ‘waive’ the privilege, since President Ross said:
‘in the absence of a statutory provision to the contrary, or waiver by a respondent, the effect of penalty privilege is that a respondent cannot be ordered to make discovery, produce documents, provide information or respond to a notice to admit.’
Waiver as a concept in the law generally requires a high level of deliberate abandonment. No doubt for that reason, the Commissioner began some time ago to alert practitioners to the existence of the privilege when proposing such orders.
President Garde has also made clear that the Tribunal itself has a duty ‘to ensure that a respondent is informed of the options in order to make an informed and voluntary decision whether or not to waive the privilege.’
The President also observed that many professionals will wish to make admissions if for no other reason than to be seen to be appropriately cooperative, and to attenuate the issues and so diminish the costs which will be payable if the practitioner loses. My clients often make extensive admissions, sometimes make denials, but often remain silent in relation to some issues and strenuously resist the characterisation of such silences the matters about which they have stayed silent as ‘denials’. There is, however, nothing to be gained from consenting to an order to provide a response to a notice to admit. When, as I have found to be the case, the notices are framed in a manner which purports to graft onto VCAT’s procedures a presumption of admission in the event of non-denial, great procedural uncertainty is generated, because, unlike in the state courts, there are no rules of procedure which provide a legal basis to generate such an admission. And it will often be more convenient for the practitioner to craft the admissions in the form he or she considers most appropriate, possibly in a discursive letter, and at a time convenient to him or her. Furthermore, the notices to admit usually track the allegations in the Application itself extremely closely, regardless of the admissions made during the investigation in correspondence which is annexed to the Application, so that the requirement to respond to the notice to admit is akin to a requirement to serve a defence, and the drafting, filing and service of the notice to admit generates a substantial cost on a party-party basis.
Finally, for some reason, no one ever seeks orders to serve notices to admit on the Commissioner. If, for some reason, one were to consent to orders for the provision of a response to a notice to admit, it would seem appropriate to me to reserve a right to reciprocity. Continue reading “Legal Services Commissioner seeks to overturn privilege against penalties”
VCAT’s latest decision to come to my attention, of Member Elizabeth Wentworth, involved another solicitor who did not lodge tax returns over an extended period. He was suspended from practice for 12 months, but the suspension was suspended provided he did not breach certain conditions in the three years after the orders. If he does, then the Commissioner may apply for the suspension of the 12 month suspension to be lifted so it comes into operation. Member Wentworth decided to leave what exactly would happen in the case of a breach to the discretion of the any future Tribunal constituted to consider it rather than providing automatically for the suspension of the suspension to be lifted. Legal Services Commissioner v GB  VCAT 254 is interesting to me for six reasons: Continue reading “Suspensions which are not suspensions and orders which are not orders”
The Supreme Court of Tasmania has made an important ruling in Legal Profession Board of Tasmania v XYZ  TASSC 33 about the finality of decisions made by legal regulators at the end of disciplinary investigations. The decision suggests that in those jurisdictions with similar statutory provisions, until a disciplinary prosecution is launched, such decisions may be less final than I suspect many lawyers in Australia have previously believed. A decision of the Victorian Court of Appeal, which related to a different situation where one of two courses following a disciplinary investigation was gone down and completed and the professional regulator sought subsequently to go back down the alternative course, was distinguished: Kabourakis v Medical Practitioners Board of Victoria  VSCA 301. Continue reading “Can a legal regulator rescind a decision to bring disciplinary proceedings”
In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd  HCA 7, the High Court considered when an administrative agency can make a determination of the commission of a crime. The case arises out of the sorry saga of two Today FM presenters impersonating the Queen and Prince Charles in inquiries of the hospital in which the Duchess of Cambridge was a patient. ACMA conducted an investigation and published a preliminary report expressing the ‘view’ that Today FM had used its broadcasting service in the commission of an offence under the Surveillance Devices Act 2007 (NSW). Commission of an offence in the course of use of a broadcasting service was a breach of the licence and carried with it the possibility of its revocation: s. 8(1)(g) Australian Communications and Media Authority Act 2005 (Cth). The Court said of ACMA’s ‘view’: No worries; full steam ahead, overturning a unanimous decision of a bench of the Full Federal Court presided over by its Chief Justice, and restoring the trial judge’s conclusions.
There are no doubt implications for Legal Services Commissioners and other disciplinary investigators where misconduct is defined to include the engaging in of criminal offences. Under the uniform legislation to come into force in Victoria and NSW this year, Legal Services Commissioners will become decision makers and have the power to impose fines for professional misconduct. I have blogged before about various cases in which a related question has arisen, of the appropriateness of administrative tribunals making determinations of the commission of offences, not with criminal consequences but with penal disciplinary consequences. Continue reading “Can an administrative agency determine that a crime has been committed?”
In Flori v Commissioner of Police  QSC 284, a police sergeant was suspected of committing a crime: leaking to News Ltd footage of an incident in respect of which another officer was being investigated by a disciplinary authority for using excessive force. A criminal investigation was launched as a result of the findings of the disciplinary investigation. A search warrant was granted in aid of the criminal investigation, and executed. The sergeant’s computers were seized from his home.
The evidence was incriminating: the email address used to leak the photos was associated with his computer. No prosecution ensued. Instead, disciplinary proceedings were issued. The prosecutors sought to use the evidence seized in the search warrant. The policeman sought a declaration that the evidence was inadmissible. The Supreme Court of Queensland granted the declaration: examining the scheme of the statute which authorised the search warrant, Atkinson J found an implied restraint on the use of the information otherwise than for the purposes of the criminal investigation in aid of which it was granted.
This is an application of established principle (see these previous posts: one, two, three, four), but it is a nice case because its scope is confined exclusively to this issue, and it occurs in the context of a statutory disciplinary regime. The discussion of the law, which commences at , is set out in full below. Continue reading “More on the constraints on the use of information obtained under statutory powers”
In Dennis v Council of the Law Society of New South Wales  NSWSC 1487, the Law Society suspended a sole practitioner’s practising certificate with immediate effect and appointed a manager to his practice. He had not responded to commands by a trust investigator to produce documents and answer questions in relation to a disciplinary complaint. The Society said that he had failed to do so wilfully and without reasonable excuse, and this, it said, made it necessary to abolish the man’s livelihood.
Hoeben CJ at CL found that the commands were invalid in law, and there had been no failure at all to comply with them. But even if the Society’s interpretation of the provisions of the Legal Profession Act 2004 (NSW) in question had been correct so that there had been a failure to comply with them, his Honour said, this would still not have been an appropriate occasion on which to exercise the ’emergency powers’ which the Law Society exercised. It simply was not ‘necessary’ for the protection of the public to shut down a sole practice like that. Especially since, prima facie, the appropriate place for the complainant to raise the practitioner’s conduct was in the proceedings in the Supreme Court of Victoria which were the backdrop to the conduct complained of and which were pending at the time of the complaint. And more especially still where the practitioner had cited the commercial sensitivity to that litigation of confidential information sought by the Law Society and had suggested that the investigation be paused pending the imminent completion of those proceedings.
Given that the complaint in which the practitioner was said wilfully to have failed to obey the stipes’ commands was the complaint of a non-client, I will be interested to learn what it is about NSW law which means that the solicitor could be obliged to deliver up privileged information even if the commander had the power to issue the commands. The Victorian Bureau de Spank has no such powers: B v Auckland District Law Society  UKPC 38, a decision of the Privy Council and Legal Services Commissioner v Shulsinger  VCAT 965. Continue reading “New South Wales Law Society misconceivedly suspends sole practitioner’s PC peremptorily”
The Lawchestra, about which I have troubled you before, is playing again this Sunday after we totally nailed the last concert (photos from the brilliant young photographer and law student Sean R. Ali here). It was thanks to the good work of Robert Dora, the conductor. Man does he have a hard job. Orchestras like the Melbourne Symphony Orchestra run themselves and the conductors just add an air of distinguished flamboyance. But conducting a community orchestra, the conductor really has to work hard to cue people, explain to them without speaking or stopping wagging the baton that they came in a bar early, as well as drag some dynamic contrast out of players more worried about playing the right notes than where to diminuendo. It’s a high-risk, high-stress job, and Dora the Conductor is great. So is the gorgeous soloist, Natasha Lin. You should definitely come: book here. Even The Age says so. Continue reading “The Lawchestra’s second ever concert”
In Roberts v A Professional Committee of the Nursing Council of New Zealand  NZCA 141 a nurse had pleaded guilty to having sex with a vulnerable patient. He had been suspended from nursing for three years. The High Court upheld his appeal and reduced his period of suspension to 18 months, precisely as he had requested. It dismissed the cross-appeal, which contended that he should have been deregistered. He sought costs. He got costs of the cross-appeal, fixed at 25% of the costs of the appeal because it had been doomed to fail and should never have been brought. But he failed in his claim for costs of his own appeal though he had obtained in it precisely what he had sought.
Why? Because there were no ‘compelling reasons’ justifying such an order. The High Court noted that unlike disciplinary cases against lawyers, where first instance decision makers were empowered to make orders for and against the legal regulator, costs orders could be made only in favour of the nurses’ disciplinarian. The first-instance immunity to costs of nurses, and the important public function of the maintenance of standards in the provision of healthcare caused the High Court to carve out of quite a prescriptive costs regime in the High Court rules, one of the policies of which is apparently to make costs decisions predictable, a ‘compelling reasons’ threshold. So he did not get costs of his own appeal. He appealed again, on costs. The Court of Appeal allowed his appeal, and found there was no ‘compelling reasons’ threshold to be overcome before costs could be awarded against disciplinary regulators. The judges unanimously said: Continue reading “NZCA stomps on attempt to limit costs against disciplinary bodies”
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  VSCA 157. (That case stands for the proposition, incidentally, still not perfectly understood by people who probably should understand it, that even expert evidence of a respondent need not be filed prior to the close of the prosecution’s case: see the Court at , apparently approving ASIC v Plymin (2002) 4 VR 168 at .)
All this did not stop certain regulators inviting respondents to consent to orders to that effect without bringing the privilege against penalties or Towie’s Case to their attention and serving ‘Notices to Admit’. Some of my clients, keen to save an appearance fee of a few hundred dollars, consented to such orders. Continue reading “VCAT’s Legal Practice List and the Privilege Against Penalties”
Update, 17 October 2014: K-R v Council of the Law Society of New South Wales  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 wrong too. Even if the law was as the Council wrongly believed, the practitioner’s construction of the law was not so unreasonable as to justify a finding that her conduct, engaged in in the belief that her construction was right, amounted even to unsatisfactory professional conduct. It would just have been a mistake which did not warrant discipline and the Council should not have arrived at the state of satisfaction which triggers the power to reprimand. That is, the Council should not have been satisfied in the circumstances that there is a reasonable likelihood that the practitioner would be found by the disciplinary tribunal to have engaged in unsatisfactory professional conduct if prosecuted. Sometimes — not always — I get the impression from Australian Bureaux de Spanque that most breaches of the Act or conduct rules automatically equate to unsatisfactory professional conduct. Of course that is not so. Sometimes I get the impression that there is a regulatory position that breach of the trust accounting rules automatically equates to professional misconduct. This decision demonstrates that that is not so.
In the last paragraph of the reasons, members Chesterman, Riordan and Hayes observed that the whole idea of disciplining practitioners based on satisfaction of a reasonable likelihood that a prosecution would be successful was ‘unsatisfactory’:
‘In conclusion, we wish to draw attention to an aspect of section 540 that we regard as unsatisfactory. In its present form, it can produce the outcome that a legal practitioner is reprimanded (or is subjected to one or more of the other lesser penalties listed in subsection (2)) even though it has not been affirmatively shown that he or she engaged in unsatisfactory professional conduct. The lower threshold set out in subsection (1) – that of a ‘reasonable likelihood’ of such a finding – applies both when the Legal Services Commissioner or a Council chooses to invoke the section and when administrative review of an adverse decision is sought by the legal practitioner concerned. By contrast, if the matter proceeds by way of a disciplinary application to NCAT (which is now the relevant tribunal), an order by way of penalty will only be made if unsatisfactory professional conduct is proved to NCAT’s satisfaction.’
There are two differences between the NSW provision analysed by this decision and the current Victorian provision. First, the practitioner’s consent is not a condition of the Bureau de Spanque up North imposing a reprimand. Secondly, there is a specific statutory right to obtain review of decisions such as this.
Under the Legal Profession Uniform Law to come into force in Victoria and NSW next year, the Bureaux de Spanque will have to make a determination that there has been unsatisfactory professional conduct — none of this ‘satisfied that there is a reasonable likelihood’ nonsense. It is to be hoped that skilled legal decision makers will be assigned to this quasi judicial task. Once such a determination has been made, however, the Bureaux will have the power to award fines of up to $25,000 or impose other sanctions chosen from a statutory smorgasbord. Given that fines of $25,000 or more are rare in Victoria and NSW alike, this essentially means, in practical terms, that for most lesser disciplinary complaints, ultimate decision making power is being transferred from public tribunals to employed decision makers operating in private. I should not be taken to be suggesting that that is necessarily a bad thing. But it is something which should be discussed.
Of course, many times it may not be possible for a decision maker in the new regime safely to make a determination on the papers without admissions from the respondent. In those cases, it may well be that the Bureaux would have no choice but to lodge a prosecution or take no further action, even if the practitioner were prepared to consent to the making of a reprimand.
Original post, 17 June 2014: Following a disciplinary investigation, Victoria’s Legal Services Commissioner must form an opinion as to the likelihood of VCAT finding the lawyer guilty of conduct warranting discipline. If he is satisfied that there is a reasonable likelihood of VCAT finding the lawyer guilty of something, his options depend on what that something is. If it’s professional misconduct, then he must prosecute. If it’s unsatisfactory professional conduct, he can take no further action, or he can prosecute. And then there’s the in between bit: in the case of suspected unsatisfactory professional conduct he can also, with the lawyer’s consent, reprimand the lawyer, caution the lawyer, and require the lawyer to pay compensation to the complainant. See Legal Profession Act 2004, s. 4.4.13.
Continue reading “To accept a reprimand or not to accept a reprimand?”
Traditionally, the law of professional discipline has differed from the law of negligence in three profound ways. First, its aim is the protection of the public (though the policy in favour of protecting the reputation of the profession grossly infects the purity of this proposition in most analyses). Secondly, it is about personal wrongdoing. Statute aside, there is no law of attributed liability in contrast to doctrines such as vicarious liability in the law of negligence. And thirdly, simple as opposed to gross negligence was never considered to warrant discipline. Things got messed up by the introduction into disciplinary statutes of a concept of unsatisfactory professional conduct defined in terms identical to the test for simple professional negligence.
Disciplinary tribunals (and, in my experience, disciplinary investigators and prosecutors) seem to lapse from time to time into the language of ‘should have known’ even outside the prosecution of that species of unsatisfactory professional conduct which is defined by reference to the test of simple professional negligence. Two practitioners had to go to two Courts of Appeal to reverse decisions on dishonesty charges which were horribly infected by objective reasoning: Legal Services Commissioner v Brereton  VSCA 241 and Giudice v Legal Practitioners Complaints Committee  WASCA 115. Surprisingly, the former decision did not get a guernsey in the latter. The law of recklessness is authoritatively restated in the three separate judgments in Giudice and I have set the whole lot out below along with some observations about Brereton’s Case. Continue reading “WASCA on the kind of recklessness in making statements which amounts to conduct warranting discipline”
A Western Australian disciplinary case, Legal Profession Complaints Committee v CSA  WASAT 57 is interesting in a number of ways. A criminal lawyer was the manager of a strata corporation. She owned two units and the complainant the third. The complainant affixed an airconditioner to a wall which impeded on a common area. She sought legal advice. Her lawyers wrote a letter of demand to the complainant and charged a few thousand dollars. The complainant did not fix the problem within the 14 days demanded, so the lawyer sued in the Magistrates’ Court. The case was settled on the basis that the airconditioner would be relocated and the lawyer withdrew the proceeding without seeking costs. When the complainant sold the third unit, the lawyer demanded that the complainant pay her the few thousand dollars her lawyers had charged her for the advice and the letter of demand. She did so by a letter of demand drafted for her by another lawyer, though the involvement of this second lawyer only emerged at the disciplinary hearing. When the complainant did not pay up, she sued for them in her personal capacity. The suit was found to have no legal foundation, but the lawyer said that she mistakenly thought that it did have a legal foundation, and that civil proceedings were not her thing. The case says:
1. The suit was an abuse of process because there was no legal foundation for suing for the recovery of ‘pre-litigation’ legal costs.
2. The lawyer’s conduct in threatening to bring and then bringing a suit which was an abuse of process was common law misconduct but was also a breach of a rule which prohibited lawyers from claiming on behalf of a client costs in a letter of demand for recovery of a debt because she was acting for herself in writing the letter (even though no legal letterhead or reference to her status as a lawyer was involved).
3. There is no defence of honest and reasonable mistake in professional discipline.
4. It is inappropriate for a disciplinary tribunal to make what the prosecutors described as ‘an incidental finding of dishonesty’ in relation to statements made during the investigation in respect of which no charge had been laid in the disciplinary proceeding. Any such allegation ought to be the subject of a separate process (though the Tribunal then went ahead and found that the allegation was not made out on the Briginshaw standard anyway). Continue reading “Self-represented solicitor guilty of misconduct for breaching a rule expressed to regulate conduct when acting for a client”
Updated post (25 July 2014): The answer to the question posed by the original post is: yes, he will be struck off. Here are the reasons: Council of the Law Society of NSW V Andreone (No2)  NSWCATOD 81. His failure to make submissions on the question would not have assisted. On the question of whether monies received by solicitors from clients for payment of counsel’s fees are trust monies, and on whose behalf they are held, see Legal Services Board v Gillespie-Jones  HCA 35 about which Melbourne University’s Associate Professor Bant’s learned commentary may be found here.
Original post (published as ‘Will Solicitor Who Failed to Pay Counsel’s Fees be Struck Off?’): The Law Society of NSW wants a solicitor who persistently delayed in paying counsel struck off. The NSW equivalent of VCAT has found the professional misconduct established: Council of the Law Society of NSW v Andreone (No. 1)  NSWCATOD 49, and a hearing on sentencing is pending. In this case, clients had paid bills which included claims by the solicitor for counsel’s fees by electronically depositing monies into the firm’s office account — probably at the firm’s direction, as the Tribunal found.
The Tribunal found without reference to authority that those payments were trust monies to the extent that they satisfied the claims by the solicitor for counsel’s fees, the solicitor not having paid the counsel at the time of their receipt. In other words, the solicitor held the monies on trust for the barristers. But it seems that the Tribunal considered the solicitor’s misappropriation of trust monies and the failure to pay the fees as separate instances of professional misconduct. In other words, the mere failure to pay the fees, given its intentionality and persistence, amounted to professional misconduct. This is what the Tribunal said: Continue reading “NSW solicitor who failed to pay counsel’s fees struck off”
A South Australian solicitor’s last-ditch argument in his brave but unsuccessful battle to stay on the roll of practitioners was:
‘Mr Prescott contends that this Court should not act on the false testimony finding in the strike off application because, even though his testimony in the 2011 hearing was false, he had deluded himself into believing the truth of that testimony.’
The Supreme Court of South Australia did not fall for it, despite the solicitor having obtained from a Mr Ireland, psychologist, a diagnosis of acute stress disorder which hindered his ability to give reliable testimony. The reasons are at Legal Practitioners Conduct Board v Prescott  SASCFC 41. The Court said:
‘His demeanour when giving evidence before this Court exuded a sense of self assurance and confidence which was incongruous with his claim that he has been overwhelmed by the disciplinary proceeding he has faced over the last decade.’
Needless to say, the Court also engaged in a great deal of other analysis, ultimately preferring the evidence of the Bureau de Spank’s psychiatrist.
Now if there is a jurisdiction where you would hesitate about running an ‘I was mad; I knew not what I done, Guv’ defence, it is probably South Australia, where they had a Royal Commission about the police’s handling of a solicitor whose car collided with a cyclist who died soon after. The rabid response of an ill-informed public whipped up by shock jocks and politicians insufficiently unwilling to exercise restraint to the solicitor’s explanation for his conduct after the accident (that he was in a state of post trauamatic stress and was acting more like an automoton than usual) continues to provoke headlines there, many years after the tragedy.
Justice Karin Emerton seems to be emerging as one of the Supreme Court’s specialists in what I call the law about lawyers, much of which is found in the Legal Profession Act 2004. Early on in her judicial career, her Honour was assigned to the hearing of the extraordinary suite of matters between the Legal Services Board and David Forster. Her Honour’s latest characteristically clear and concise judgment in this area of the law (PS v Legal Services Commissioner  VSC 185) was delivered yesterday, in which she allowed an appeal from a disciplinary decision of VCAT’s Legal Practice List. The Victorian solicitor who was the appellant was represented by another specialist in the law relating to lawyers, Martin Randall, whom I expect was a leading expert in the area before I was born, and a gentleman to boot. Her Honour set aside VCAT’s decision because it found the solicitor guilty of conduct he was not charged with. The Commissioner urged her Honour instead to substitute a more appropriate decision, namely that the solicitor was guilty of the charge as drawn, but her Honour said: Wrong way! Go back. Continue reading “VCAT rolled for finding solicitor guilty of a charge not levelled against him”
Indulge me while I go off message for a second. Mind you, I am going to tell you about a band that is decidedly heavy with costs lawyers, since Liz Harris is on harp and I’m playing flute, so in my own mind I have a weak but arguable case for relevance. This Saturday sees the debut performance of the Melbourne Lawyers’ Orchestra, aka the Lawchestra, following in the steps of the several excellent doctors’ orchestras in Victoria (and even an engineers’ orchestra) and lawyers’ orchestras in London, and America. There are a handful of barristers, many solicitors, and some law students, brought together with patience and brill all at once by the rather wonderful conductor Robert Dora. We’ve got it all, mate: harp, bass drum, cor anglais, horn francais, piccolo, bass trombones, and they all get a thrashing. You should come, because it’s going to be a cracker, and also because you might very well get to hear me play in a general pause: book here. Continue reading “The Lawchestra”
Clyne v New South Wales Bar Association (1960) 104 CLR 186;  HCA 40 is a unanimous decision of the Dixon Court confirming the striking off of a Sydney barrister, Peter Clyne, for making unfounded and serious allegations on behalf of a husband against the wife’s solicitor in matrimonial litigation for the admitted purpose of getting the wife’s solicitor out of the case. Those allegations were in fact made in a private prosecution by the husband of the wife’s solicitor for maintenance. Reading the decision, one might think that striking off the rolls was a relatively harsh penalty by today’s standards for the conduct recorded, especially since his client succeeded at committal in having the wife’s solicitor presented for trial. And also if one believes Mr Clyne’s autobiography where he asserted:
‘Particulars given by the New South Wales Bar Association made it quite clear that it was not part of the charge to say that my advice to prosecute was wrong, or improper. Indeed, as I have mentioned before, the advice to prosecute Mann was given in writing, by the eminent and respected Sydney QC, Mr Newton, who later became (and still is) a judge of the New South Wales District Court; and no one has ever criticized Mr Newton for his advice.’
But Mr Clyne had done it before and been sternly warned (see CLR 202) and was unrepentant to the moment he was struck off. Further, he was absolutely one out of the box (he will be the subject of a further blog post) and was no doubt regarded as an excrescence on the legal system to be excised at almost any cost. He went on to irritate the authorities as a professional tax evader and unashamed advocate of tax evasion, writing many books on the subject and others (e.g. Adventures in Tax Avoidance, How Not to Pay Any Taxes, Guilty But Insane) while living a decadent lifestyle which hopped, first class, between hotels in Sydney and his native Vienna. Like George Herscu, one of the villains in White Industries v Flower & Hart, Clyne spent time in jail, and only avoided spending more time by fleeing America without a passport while on appeal bail. He seems to have been intelligent and to have had enough charm to be married to a Welsh entomologist who also wrote many rather different books (e.g. Silkworms, All About Ants, and Plants of Prey). But his autobiography (Outlaw Among Lawyers; the Peter Clyne Story, Cassell Australia, 1981) reveals a thoroughly dishonest if colourful character with very little if any regard for the law. Continue reading “Clyne v NSW Bar Association: the leading case on unfounded allegations”
Update: This decision was reversed on appeal: Dekker v Medical Board of Australia  WASCA 216. The Court of Appeal did not find that there was no duty to assist. Rather, they found that there was insufficient evidence before the disciplinary tribunal for it to find the existence and acceptance in the profession of such a duty, because the existence of such a duty was never put to the doctor by the tribunal and because the tribunal failed to take into account on the question of liability (as opposed to penalty) all the surrounding circumstances, including that the doctor was in a state of shock.
Original post: Eleven and a half years after a 2002 car accident south of Port Headland a radiologist has been found guilty of the Westralians’ version of professional misconduct (‘improper professional conduct’) but not of conduct which peers would regard as disgraceful or dishonourable, for failing to render medical assistance. The decision is Medical Board of Australia v Dekker  WASAT 182. It makes a bold assertion of general application without identifying or discussing any authority about the factual scenario in question, which must surely occur regularly all over the world and — one would have thought — be much pondered:
’39 It is improper conduct in a professional respect for a medical practitioner who is aware that a motor vehicle accident has or may have occurred in their vicinity and that anyone involved has or may have suffered injury not to make an assessment of the situation, including the nature of any injuries and needs of persons involved, and render assistance, by way of first aid, when the practitioner is physically able to do so, notwithstanding that the practitioner immediately reports the matter to police or other emergency services. It matters not that there is no existing professional relationship between a medical practitioner and the persons involved in the accident. Because saving human life and healing sick and injured people is a core purpose and ethic of the medical profession, and because members of the profession have the knowledge and skills to do so, the failure by a medical practitioner to make an assessment and render assistance when he or she is aware that a motor vehicle accident has or may have occurred in their vicinity and that people have or may have been injured, when the practitioner is physically able to do so, would, notwithstanding that the practitioner reports the matter immediately to police or other emergency services, reasonably be regarded as improper by medical practitioners of good repute and competency, and there is a sufficiently close link or nexus with the profession of medicine.’
Civil liability in tort has been imposed on a doctor who refused to attend upon an emergency involving a non-patient: Lowns v Woods  Aust Torts Reports 81-376 (NSWCA). But in that case the then proximity-based test for establishment of a duty of care was satisfied by a number of factors which included that:
- a request was made for assistance in respect of what the doctor understood to be a medical emergency which he was willing to provide (but only on the condition that the patient be brought by ambulance to his practice);
- he was specifically told that ‘We need a doctor. We have already got an ambulance’;
- he was able to do so: he was at work, available, competent at administering the requisite treatment, and could have done so promptly being only 300 m away from the patient;
- to attend involved no threat to his person;
- he was not incapacitated so as to make giving treatment more difficult: he was not drunk, or ill, or tired; and
- there were statutory provisions which made it misconduct to fail to render assistance to a person in urgent need of medical attention without reasonable excuse.
See Kylie Day’s ‘Medical Negligence – the Duty to Attend Emergencies and the Standard of Care: Lowns v Woods” (1996) 18(3) Sydney Law Review 386.
The tortious duty was squarely founded on the fact of a request in a professional context for treatment of the kind in which the doctor practised. Public policy was expressly acknowledged as relevant to the determination of the tortious liability. Since the existence of a professional obligation was a matter that told in favour of the development of a new category of duty of care, civil lawyers ought not be entirely blase about the latest apparent development of the disciplinary law courtesy of the Westralians.
Friends, I need your help, again. Certain promises I made to write about and present on the civil and disciplinary consequences of making allegations of serious wrongdoing (e.g. fraud) without a proper foundation are coming home to roost. I’m looking at:
- disciplinary sanction of lawyers via Legal Services Commissioner, etc. prosecution;
- personal costs orders against lawyers;
- costs consequences for parties (common law in relation to exercise of the unfettered discretion re solicitor-client rather than party-party costs and displacing the presumption that costs follow the event where allegations of fraud are not made out, and Civil Procedure Act 2010 (Vic.)); and
- what is a ‘proper foundation’?
My miserable situation in this season of sun, frivolity and child-minding is a need to work out what these consequences are so that I can provide learned disquisition. In the process I have learnt something about Dr Peter Clyne, the protagonist of Clyne v NSW Bar Association (1960) 104 CLR 186;  HCA 40. What a wonderful addition to my knowledge of the rogues’ gallery of which I consider myself a connoisseur; I even bought his autobiography on eBay today but his ‘How Not to Pay Your Debts’ is still available. The Hikers described his conduct during the course of an ‘orgy of litigation’ between his client, the husband, and the wife as ‘irresponsible’, ‘mischievous’, ‘objectionable’, indefensible, ‘inexcusable’, and, rather wonderfully I think, ‘monstrous’. A unanimous Dixon Court confirmed the good doctor’s striking off. You can read about his life afterwards, including as a Magistrate in Zambia, here, and possibly less reliably, here.
So here is a general call-out for good authorities on these questions, especially decisions which really assist in understanding what a ‘proper factual foundation’ is, since many authorities relate to allegations which are so obviously unsustainable that they do not really illuminate where the line lies between the merely poor and the truly discreditable argument (Clyne), or proceed on the basis of admissions (AM v Legal Practitioners Disciplinary Authority  NTSC 02), or are fantastically complicated (the case just referred to and Victorian Bar Inc v CEM QC  VCAT 1417). I would also be very grateful for any detailed commentaries on this aspect of the conduct rules for solicitors and barristers alike, and Australian decisions in relation to costs (since many of those cited by Dal Pont are Canadian or English).