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More on Law Institute records and public interest immunity

I have previously posted about Justice Pagone’s rejection of the Law Institute’s blanket invocation of public interest immunity to excuse production of documents required for production under a statutory power of compulsion available to the Tax Man.  Now his Honour has decided the case based on the kind of specific arguments he considered to be necessary: Law Institute of Victoria Limited v Deputy Commissioner of Taxation (No 2) [2009] VSC 179. The documents sought by the Tax Man were divided into 3 categories:

  • The first were documents about the practice history of the solicitor of interest to the Tax Man, which included copy practising certificates, records of when the solicitor held a practising certificate, and of what kind, and change of address forms.
  • Secondly, the Tax Man sought records of audits of the solicitor’s trust accounts;
  • Thirdly, he sought ‘all records in respect of the cessation of [the solicitor’s] registration as a practising lawyer, including documents stating Mr Kephala’s election not to renew his practising certificate, or notification of his ineligibility, or notification of the requirement for investigations to be conducted before it could be renewed.’

His Honour held that the first and third documents were not protected by public interest immunity, but the second was.  The reasons in relation to the audit documents are set out below.  Some of the documents produced by the Institute contained information to persons other than the solicitor in whom the Tax Man is interested.  His Honour also hinted strongly that a responsible regulator ought to advise them that information relating to them was proposed to be produced to the Tax Man, and that the Institute had not done so.  His Honour contrasted that course with that adopted in Federal Commissioner of Taxation v Coombes (No 2) (1998) 160 ALR 456. Continue reading “More on Law Institute records and public interest immunity”

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Waiver of without prejudice privilege in disciplinary prosecutions of lawyers

It has never been clear to me that anyone was entitled in a disciplinary prosecution to refer to statements made ‘without prejudice’ unless the joint privilege holders (the disputants on whose behalf the communication was made, and made to) waived it.  Now I have found an authority on the question in Legal Practitioners Complaints Committee v David F [2006] WASAT 352, a disciplinary prosecution of a lawyer who allegedly made misleading comments during a negotiation.  Western Australia’s State Administrative Tribunal held that without prejudice statements could be adduced in evidence against him: Continue reading “Waiver of without prejudice privilege in disciplinary prosecutions of lawyers”

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Rehabilatory orders as professional discipline disposition

In Victoria last year, a deal was struck between the Law Institute and a solicitor whose practising certificate it had cancelled.  A retired solicitor was appointed as a mentor to the solicitor, who was allowed to return to practice subject to the Legal Practice Board’s supervision through the retired solicitor’s agency.  Bitter litigation was brought to an end.  There was a precedent: Legal Services Commissioner v BH [2008] VCAT 686.  And it is not unlikely that that precedent was borne out of important guidance issued by the Court of Appeal in PJQ v Law Institute of Victoria [2007] VSCA 122 per President Maxwell with whom Justices of Appeal Chernov and Nettle agreed:

’31 Critically for present purposes, however, the Tribunal’s protective function is paramount. Thus, where there is a choice of sanctions, it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public.

32 In my opinion, the Tribunal was here faced with just such a choice. Counsel for [Mr Q] had offered the Tribunal an undertaking to have his bills of costs independently assessed. This undertaking was offered apparently without limit of duration. As Buchanan JA and I said when granting a stay of the suspension, the imposition of a continuing obligation of that kind would seem likely to afford considerably greater protection to the public than a period of suspension, unaccompanied by any requirement of training or further education, followed by a resumption of unsupervised practice. Put simply, compliance with the undertaking would ensure that there was no recurrence of the overcharging which occurred here.

33 As I have mentioned, the Tribunal’s otherwise careful reasons for decision make no mention of the proffered undertaking. The Tribunal said that it had considered other options short of suspension but in my view, because of the long-term protection which the undertaking offered the public, that course required separate consideration and evaluation.’

The Bureaux de Spanque Medicales are much better than their legal equivalents at fashioning these kinds of orders (but then there is a dearth of experienced doctors while there is a glut of lawyers, so necessity is the mother of invention).  Anyway, the Queenslanders are onto it.  In Legal Services Commissioner v MPD [2009] LPT 08, the Bureau de Spanque Tropicale heard charges against a solicitor for breach of the rule in Browne v Dunne, and several trust account irregularities which involved no dishonesty.  The solicitor pleaded guilty, and everyone involved thought these lovely orders to be most appropriate: Continue reading “Rehabilatory orders as professional discipline disposition”

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Solicitor prosecuted for breach of rule in Browne v Dunne

Bizarre man.  A Queensland solicitor has been found guilty of professional misconduct for not obeying the rule in Browne v Dunne (well, amongst other things): Legal Services Commissioner v MPD [2009] LPT 08. Here are the reasons:

‘[18] in July 2004, [Mr Dryland] retained the respondent to resist an application for an apprehended violence order.  [19] Mr Dryland’s case involved a denial of the incident of violence alleged against him.  [20] During the hearing, the respondent, who acted as advocate, failed to put his client’s case when cross-examining.  [21] The Court made an apprehended violence order against Mr Dryland.  [22] It is not alleged that there was a connection between a failure to comply with the rule of practice in Browne v Dunn (1893) 6 R 67 and the outcome of the hearing. Rather, the undisputed case is merely that there was a failure to cross-examine appropriately.’

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Another case about one of Schapelle Corby’s lawyers

I have previously expressed my disquiet about the Western Australian QC who told the Australian media that Schapelle Corby’s lawyers were trying to bribe the judges hearing her case.  It seems the Bureau de Spanque de l’Australie de l’Ouest had in fact got right onto it, initiating an own motion investigation. The resultant prosecution has only just now, almost four years later, ground to a successful halt, with a 60,000 word decision crafted by WA’s State Administrative Tribunal over the six months during which the decision was reserved.  The case is Legal Practitioners Complaints Committee v Mark T QC [2009] WASAT 42. The QC does not come out of it well. Continue reading “Another case about one of Schapelle Corby’s lawyers”

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Briginshaw and the uniform evidence law

Qantas Airways Limited v Gama [2008] FCAFC 69 discusses the interrelationship of the uniform evidence legislation and the High Court’s decision in Briginshaw v Briginshaw (1938) 60 CLR 336.  The relevant bit is in the separate decision of Justice Branson, with whom Justices French (now of the High Court) and Jacobsen agreed at [110].  Briginshaw informs the interpretation of s. 140.  There is detailed explanation of how the three factors which must be taken into consideration in applying s. 140 work in practice.  The case considered allegations that Qantas engaged in racial discrimination against one of its workers.  A useful point clearly made by the decision is that Briginshaw is relevant to allegations, not to causes of action.  So it is only the inherently unlikely and/or very serious allegation which attracts more careful scrutiny.  Other factual allegations which must be proved to establish the cause of action attract only routine scrutiny. Continue reading “Briginshaw and the uniform evidence law”

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A new text on professional discipline

Lovegrove & Lord‘s Kim Lovegrove and barrister Sav Korica have just published a little book called Disciplinary Hearings and Advocacy (Hybrid, 2009). It sells for $39.95. Lovegrove is the Chairman of the Building Practitioners Board, and presides over disciplinary hearings. I suspect that frustration with other decision makers’ decision making (‘there may exist some, particularly those who are not legally trained, who may harbour a misconception about the purpose of disciplinary porceedings in that they may be of the view that their primary mandate is to punish’) and, more particularly, with the attitude adopted by advocates appearing before him (‘Members are often bamboozled about determining whether an advocate is contesting or mitigating’) has driven him to write the book. Continue reading “A new text on professional discipline”

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Sentencing guideline published by English barristers’ Bureau de Spank

A stranger who revealed herself as one of the many mysterious anonymous and silent consumers of my outpourings has given me a useful headsup which I hereby pass on to all of you. The Bar Standards Board — an independent entity hived off from the English Bar of old in the name of further dismantling of self-regulation of the profession — has published a guideline for the disposition of disciplinary complaints against barristers. An interesting sanction available to the Board’s disciplinary bodies is a requirement to take a test in relation to professional ethics. Continue reading “Sentencing guideline published by English barristers’ Bureau de Spank”

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Criminal prosecutions (-not) by disciplinary authorities

Updates, 13 June and 24 October 2012: See now Hagipantelis v Legal Services Commissioner of New South Wales [2010] NSWCA 79 from [23] and Legal Profession Complaints Committee v Masten [2010] WASAT 47.

Original post: The Building Practitioners Board is the Bureau de Spank for builders. It initiated an inquiry into whether a builder had breached a provision of the Building Act, 1993 (Vic.).  The provision prohibited builders from building without a permit.  Breach is a crime, but the Board is not entitled to prosecute offences under the Act, for which there is a limitation period of 3 years from the end of the building.  The Builder applied for judicial review of the decision to hold the inquiry, and the outcome is reported as Rodwell v Building Practitioners Board [2009] VCS 146.  He said that a disciplinary hearing into whether he had committed a crime was ‘a proceeding for an offence’.  If he was right, then the limitation period, which was attached to that concept, had already run, and the Board did not have the power to hold the inquiry.  Justice Hollingworth held against the builder. Continue reading “Criminal prosecutions (-not) by disciplinary authorities”

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Inferences arising from failure to call a witness for fear of what they would say

Even though I can remember little about them, I know that two of my favourite books are the 18 year old Francoise Sagan’s Bonjour Tristesse and Helen Garner’s The Children’s Bach.  They are both short.  A book is a good book when you can finish it in one bath.  Entertaining as Justice Owen’s judgment writing style was in The Bell Group Ltd v Westpac Banking Corporation [No 9] [2008] WASC 239, it is not a short decision.  Much is probably buried away in there, unlikely to be read in this drought, for want of sufficient rainy days. So here is his Honour’s handy exposition of the rule in Jones v Dunkel, which commences at paragraph 999: Continue reading “Inferences arising from failure to call a witness for fear of what they would say”

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Jones v Dunkel inferences in disciplinary hearings not bound by the rules of evidence

In Legal Practitioners Complaints Committee and MT QC [2009] WASAT 42, Judge Eckert’s 3 member tribunal considered the application of the rule in Jones v Dunkel to disciplinary prosecutions in tribunals (like VCAT) which are not bound by the rules of evidence.  The practitioner sought to have inferences drawn against the prosecutor from the fact that Schapelle Corby, whom he said might have been considered to be a critical witness for the prosecution, did not give any evidence.  The inferences sought was that nothing Ms Corby would have said would have assisted the prosecution’s case that Mr T QC was Ms Corby’s barrister or prospective barrister.  Her Honour applied the evidentiary presumptions, but in a relaxed fashion, allowing argument as to whether there was an explanation for the non-testimony of the kind which would render inoperable the presumption:

Continue reading “Jones v Dunkel inferences in disciplinary hearings not bound by the rules of evidence”

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State Acts’ power to regulate local lawyers’ overseas conduct

In Legal Practitioners Complaints Committee and MT QC [2009] WASAT 42, Judge Eckert’s 3 member tribunal considered the application to the Western Australian Legal Practice Act, 2003 of the laws relating to the power of state governments to make legislation regulating overseas conduct (i.e. ‘the law of extraterritoriality’).  Her Honour is Deputy President of the State Administrative Tribunal, and a judge of Western Australia’s District Court.  The Tribunal held that the Western Australian parliament had the power to make laws providing for the discipline of Western Australian lawyers who did things overseas which infringed the norms of their Australian peers, and that the parliament had in fact done so.  Her Honour also considered the relevance of compliance with overseas norms, and who has the burden of proving those norms.  This is one to store away for when you read it.  The relevant passage is: Continue reading “State Acts’ power to regulate local lawyers’ overseas conduct”

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Review of decisions to exclude lawyers from ASIC and NCA examinations

This is a note about a decision by a judge who is only a year older than me, Justice Nye Perram, a novel and somewhat unsettling circumstance: Collard v Australian Securities & Investments Commission (No. 3) [2008] FCA 1681. I looked him up because the judgment is so beautifully written, and found a welcome in Bar News (go to p. 97). The case is about lawyers’ rights to appear for clients to be examined by ASIC (and also, incidentally, by the National Crime Authority). It is also of interest to me because of its discussion of who bears the burden of proof when seeking review in administrative law of a bureaucratic act which statute stipulates may only be taken if it is reasonable (or necessary) to do so. Who bears the burden of establishing reason or unreasonableness? Continue reading “Review of decisions to exclude lawyers from ASIC and NCA examinations”

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Adjournments

In Brimbank Automotive Pty Ltd v Murphy [2009] VSC 26, Justice Kaye today neatly summarised the Victorian law in relation to applications to adjourn trials, in a thoroughly orthodox manner. All these kind of decisions say much the same thing, but with different emphases in relation to when a decision maker is entitled to say ‘Enough’s enough you goose. You’ve had your chances. I don’t care if you’re not ready for trial. We’re starting. Move it.’ The Readers’ Digest edition of KJ’s version — which makes no attempts to break free from The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 — is:

‘a court should not refuse an application for an adjournment, where to do so would cause injustice to the party making the application, unless the grant of the adjournment would occasion irreparable prejudice to the other side, such prejudice not being capable of being remedied by an appropriate order as to costs or otherwise. … The exercise by the court of its discretion in such a case is not the occasion to punish a party, or its practitioners, for oversight, mistake or tardiness. Rather, the overriding requirement is that the court must do justice between the parties.’

Then his Honour upheld a Magistrate’s refusal to grant an adjournment application on the day of trial, but on the basis that it was unsupported by any evidence, truly an exceptional case. The full passage is as follows: Continue reading “Adjournments”

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Byrne v Marles reversed by legislation

I wrote about Byrne v Marles [2008] VSCA 78 here, and suggested reversal by legislation as a possible outcome.  The government slipped the Professional Standards and Legal Profession Act Amendment Act, 2008 through pretty quietly.  Two new sub-sections in the Legal Profession Act, 2004 add to the existing parent sections that nothing within them gives lawyers a right to be heard in relation to how a complaint is to be dealt with, or whether it should be summarily dismissed.  The relevant sections including their additions are set out below, and apply to complaints received by the Commissioner after 11 December 2008. I suggest that regardless of whether the Commissioner has an obligation to invite lawyers to do so, they should often take up these issues at the outset to ensure that there is in fact a valid disciplinary complaint, that its boundaries are clear and not exceeded, and that the Commissioner does not otherwise act without power.

Continue reading “Byrne v Marles reversed by legislation”

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Beak bribe boast bars barro

Legal Services Commissioner v JDG [2008] LPT 17 is a shocking case in which a Queensland barrister was struck off after he lied when confronted by investigators with the true proposition that he had offered to pay a $50,000 bribe to a Magistrate or Crown prosecutor on behalf of a client.  He also took $59,000 in cash from the direct access client and popped it into his safe.  He used some of it to feed his gambling.  He should, of course, have chucked it into a special account.  He told his client that: Continue reading “Beak bribe boast bars barro”

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Nettle JA on sentencing thieving lawyers

R v Maurice B [2008] VSC 254 records the sentencing remarks of Nettle JA apparently sitting in the trial division following a guilty plea by a solicitor who stole a quarter of a million dollars. The solicitor argued the state of his mind was relevant in two ways. First, he said his impaired mental functioning short of psychiatric illness at the time of the offending diminished his moral culpability. Secondly, what appears to have degenerated into a psychiatric illness (depression, anxiety disorder, panic attacks requiring anti-depressants) was a relevant consideration in determining an appropriate sentence.

Based on the psychiatric evidence, Justice of Appeal Nettle gave little truck indeed to the first claim, but did take the mental state of the solicitor by the time he had been through the Legal Profession Tribunal and the criminal charges into account in fashioning an appropriate sentence. In fact, along with the solicitor’s age (67) his mental condition at the time of sentencing was the thing which kept him out of the clink. His Honour conducted a survey of a number of Victorian cases involving thieving solicitors who received suspended sentences of imprisonment and remarked:

‘I doubt that the sentences imposed in at least some of those cases gave due weight to the overriding importance of general deterrence in matters of this kind. For, even allowing that a suspended sentence is a sentence of imprisonment for all purposes, it is manifestly less burdensome than an immediate term of imprisonment. It is also to be remembered that the maximum sentence for the offence of having a deficiency in a trust account has more than doubled since the Legal Professional Practice Act 1958 was first replaced by the Legal Practice Act 1996, from seven years to 15 years’ imprisonment. These days, the idea of a fully suspended sentence in a case of solicitor defalcation will seldom sit easily with the imperative that solicitors who act in fraudulent breach of trust account obligations “must … inevitably suffer severe punishment”.’

The whole of the relevant passage is: Continue reading “Nettle JA on sentencing thieving lawyers”

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Dentist does worse on appeal to VCAT than before the Dental Practice Board

In Von S v Dental Practice Board [2008] VCAT 2302, a dentist sought merits review in VCAT of a decision of the Dental Practice Board to suspend his registration for 3 months.  He had practised for two and a half months without being registered (a crime punishable by a maximum fine of $11,000), practised without insurance for 20 months, and been uncooperative when the Board sought to investigate him by failing to respond to letters, and then breaking a promise to see a psychologist and provide a report. Continue reading “Dentist does worse on appeal to VCAT than before the Dental Practice Board”

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Solicitor gets three year break for multiple conflict findings

In Legal Services Commissioner v DJMH [2008] VCAT 2301, Deputy President McNamara’s tribunal ordered the solicitor not to practice before 1 July 2011 for multiple findings of acting in the face of a conflict.  It is unfortunate that the reasons for decision do not allow an understanding of what was alleged.  It had something to do with conflicts of duties in lending transactions described as ‘very serious indeed’.  The gravamen of the charges, according to the Deputy President was that the solicitor: Continue reading “Solicitor gets three year break for multiple conflict findings”

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Da Fink reckons the Bureau should act with the fairness of Crown prosecutors

In Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620, Justice Ray Finkelstein, aka da Fink, sowed a seed for future courts to take up and declare that regulatory authorities bringing civil penalty proceedings should have the same duties as criminal prosecutors. Having cited the authority to say that they do not, his Honour said:

’35 A lay person might be forgiven for thinking that in the present context the distinction between civil and criminal proceedings is somewhat artificial and that in both kinds of proceedings the regulatory authority or prosecutor (as the case may be) is under a duty to ensure that the decider of facts (judge or jury) is best placed to arrive at the proper and just result.’

Then, with the judicial equivalent of biting sarcasm:

‘Perhaps the reason courts have rejected this approach is that in a criminal proceeding a conviction may result in imprisonment whereas in a civil penalty proceeding the worst that can happen is that the defendant’s career is ruined or his life is wrecked.’

Continue reading “Da Fink reckons the Bureau should act with the fairness of Crown prosecutors”