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NZCA stomps on attempt to limit costs against disciplinary bodies

In Roberts v A Professional Committee of the Nursing Council of New Zealand [2014] 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”

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VCAT’s Legal Practice List and the Privilege Against Penalties

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 [2008] 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 [10], apparently approving ASIC v Plymin (2002) 4 VR 168 at [10].)

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”

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WASCA on the kind of recklessness in making statements which amounts to conduct warranting discipline

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 [2011] VSCA 241 and Giudice v Legal Practitioners Complaints Committee [2014] 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”

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Self-represented solicitor guilty of misconduct for breaching a rule expressed to regulate conduct when acting for a client

A Western Australian disciplinary case, Legal Profession Complaints Committee v CSA [2014] 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”

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VCAT rolled for finding solicitor guilty of a charge not levelled against him

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 [2014] 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”

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A reprimand is not just a slap over the wrist; the value of precedents in disciplinary sentencing

In Peeke v Medical Board of Victoria [1994] VicSC 7 at p. 6, Marks J commented in a judgment substituting a reprimand for the inferior tribunal’s 6 month suspension that a reprimand should not be regarded as a trivial penalty:

‘I have mentioned that the Board referred to a reprimand as trivialising a serious lapse in professional standards.  I am not able to agree with the Board that a reprimand is a trivial penalty.  It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has the potential for serious adverse implications.’ Continue reading “A reprimand is not just a slap over the wrist; the value of precedents in disciplinary sentencing”

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Should the liability for costs of a disciplinary prosecution impact on the level of punishment?

The answer is, at least in NSW — Yes. In Legal Services Commissioner v MB (No 3) [2009] NSWADT 313, a tribunal presided over by Deputy President Haylen gave the following reasons for punishing the respondent solicitor for gross-overcharging with a fine of $6,500:

‘The Tribunal accepts that the fine should be at the lower end of the range and so determines to impose a fine of $6,500. In arriving at this level of fine, the Tribunal has taken into account the large amount of costs to be met by the respondent practitioner and has formed the view that, in this case, the level of costs are a relevant consideration in assessing the overall penalty to be imposed upon the respondent. There appeared to be some debate arising from the discussion in Meakes as to the appropriateness of such an approach but in another context, the Court of Criminal Appeal has expressed the view that the level of costs is a relevant consideration in setting the level of a fine. In the Environment Protection Authority v Barnes [2006] NSWCCA 246 Kirby J, speaking for the court, rejected a submission for the appellant that the penalty imposed was a miniscule proportion of the maximum penalty applicable, stating that the individual fines which totalled $4,500 were accompanied by a costs order of approximately $16,000 and that the costs “were an important aspect of the punishment of Mr Barnes”. At para [88], his Honour stated:

Returning to the penalty imposed upon Mr Barnes. As a matter of first impression, the fines imposed appeared unduly lenient, suggesting error. However, the fines were part only of the penalty. Mr Barnes was obliged to pay substantial costs. Her Honour made it clear that, but for that fact, the fines she would have imposed would have been much higher.

Although Barnes involved the imposition of a criminal penalty, there is, in principle, no reason to depart from that approach when dealing with the very serious issue of professional misconduct and the level of fines that might be imposed on practitioners.’

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Disciplinary prosecutors must specifically plead dishonesty

In Council of the Law Society of NSW v WDC [2011] NSWADT 83, NSW’s Bureau de Spank rejected a submission of the Law Society to the effect that it should make findings of misappropriation (a necessary element of which is dishonesty) which the Law Society said it had impliedly alleged in the charge.  ‘Nonsense!’ said the Bureau:

‘As the above outline indicates, the Grounds stated in the Application alleged misappropriation in the context of only three matters: Daude, Gibki and Laczny. But Mr Stitt argued that a claim of misappropriation was made implicitly in a number of other matters in which the Solicitor withdrew funds to which he was not entitled from a trust account: for example, Ida Potier, Davidson, Crowe, Maguda, Milkow, Obolska and Pugliese.

We agree, however, with a submission by Mr Lynch that the only matters in which we may properly make a finding of misappropriation are those in which the Law Society has alleged it. This follows, in our opinion, from the decision of the High Court in Walsh v Law Society of New South Wales (1999) 198 CLR 73: see in particular the judgment of McHugh, Kirby and Callinan JJ at 94-95.’

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Jones v Dunkel inferences in disciplinary hearings

In Council of the Law Society of NSW v Clapin [2011] NSWADT 83, NSW’s Bureau de Spank rejected a submission based on Jones v Dunkel which the Law Society said should be drawn against the solicitor, who did not give evidence:

In dealing in this way with the question whether the Solicitor violated the statutory requirements with full awareness of their contents or because he was ignorant of them, we are rejecting a submission put by Mr Stitt. He argued that because the Solicitor chose not to give evidence in these proceedings we should infer that he was fully aware of the nature of these requirements. In disciplinary proceedings such as these, however, we should not make findings of seriously improper conduct against the respondent unless they are affirmatively established by cogent evidence. We decline to draw the inference urged upon us by Mr Stitt.

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Parties cannot by agreement give jurisdiction to a tribunal it does not have

Some things you learn the hard way.  One of my earliest appearances, as a young solicitor at a packed directions hearing before the notorious Master Patkin of the County Court, involved a discussion of the Court’s jurisdiction which I had not seen coming.  I suggested that the other side had consented to jurisdiction.  It earnt me a Socratic lecture, in public.  Here is what the law says, as recounted recently in Neill v Legal Profession Complaints Committee [2011] WASCA 48 at [7]:

‘In Pantorno v The Queen (1989) 166 CLR 466, the High Court made it clear that parties who agree a proposition of law cannot bind a court. Parties cannot by consent confer jurisdiction on a tribunal if none exists: see R v Moore (1976) 11 ALR 449 and Australian Education Union v Lawler (2008) 169 FCR 327 at [185].’

Of course it is not quite as simple as that.  Never is.  Creatures of statute may provide by the statute for the parties to agree on the creature having jurisdiction which it otherwise does not have.  The Magistrates’ Court Act, 1989, s. 100(1)(c), for example, provides for the parties to agree on the Court hearing a case where more than its jurisdictional limit of $100,000 is at stake.  Some imperfect knowledge of that proposition was what led me astray.

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Disciplinary decisions result in res judicatae

So said England’s highest court in R (on the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 2. An accountant and his wife were directors and shareholders of trust companies carrying out regulated financial services in Jersey.  Jersey is an island off the coast of Normandy which is not part of the United Kingdom but which has a large financial services sector closely associated with England, and 20% flat taxation. A Jersey regulator ordered the accountant to stop what he was doing and directed that no records of the companies be removed from their offices.  Four days later they were arrested at a car ferry with suitcases full of company records, ‘in flagrant breach’, as Lord Collins put it, of the direction, which they were trying to ‘spirit off the island’ as Lord Clarke put it.

Disregard of a direction of the regulator was a crime. They were convicted and fined.  Their appeal was unsuccessful. About a year later, the Investigation Committee of the Institute of Chartered Accountants in England and Wales ‘preferred a complaint’ against the accountant.  It was heard in April 2005 and dismissed on the spot. About a year later again, the Committee preferred a second complaint.  The accountant took a preliminary point: the defence of res judicata.  The Institute’s disciplinary committee found that the second complaint was not barred by res judicata.  On review, the trial judge and the Court of Appeal agreed.  The Supreme Court unanimously did not, and kyboshed the second complaint, rewarding the accountant for his stamina. See also the case note by Mayer Brown. (In Victoria, compare Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493, which I noted here.  It suggests that often, these questions will be determined by statutory interpretation, especially where the disciplinary procedures are set up by statute.)

Continue reading “Disciplinary decisions result in res judicatae”

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NSWCA on professional discipline

A GP was struck off after a hearing lasting 40 days. He was found to suffer a delusional disorder. The New South Wales Court of Appeal recently delivered a long judgment in an appeal from that decision, as reported on ABC: Lindsay v Health Care Complaints Commission [2010] NSWCA 194.  The quote the doctor got for the defence of the disciplinary proceedings, which raised multifarious issues, was $800,000.  So the doctor represented himself, cross-examining each of the 48 witnesses called against him at length.

The leading judgment of Acting Justice of Appeal Sackville, with whom the other judges agreed, considers the requirements of natural justice to be afforded to an unrepresented professional in a case involving as many issues as this one did, and with as serious a potential consequence.  His Honour concluded that the Medical Tribunal of NSW unduly restricted the doctor’s cross-examination, but found that the consequences did not justify a retrial.  The reasons also consider the obligations on tribunals who hear such serious cases as applications to deprive professionals of their livelihoods but which have a procedure and evidence regime which is more or less entirely in the discretion of the decision makers.  In this case, the charge was amended to include a new allegation, based on the doctor’s evidence at the hearing. Continue reading “NSWCA on professional discipline”

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New cases

Legal Services Commissioner v Dempsey [2010] QCA 197 is an unsuccessful appeal from a disciplinary prosecution in which findings of dishonesty were made.

Dye v Fisher Cartwright Berriman Pty Ltd [2010] NSWSC 895 is a case in which an application for a costs assessment (NSW version of taxation) outside the allotted 12 month period succeeded.

Young v Masselos & Co [2010] NSWDC 169 is one of those cases where a solicitor negligently let a limitation period go by and damages had to be assessed based on the plaintiff’s prospects of winning the case foregone.

Council of the Law Society of New South Wales v Harrison [2010] NSWADT 201 is a decision about the Law Society’s successful application to amend a charge against the respondent solicitor.  It reviews a lot of NSW law about the requirements for pleading disciplinary charges, and considers the application of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 to disciplinary hearings.


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Can’t keep up

Many new decisions of interest are coming out and I will not have time to blog them any time soon as I have to go to University and concentrate on my latest and hopefully last field of study, Shareholders Rights and Remedies.  Here are some pointers in case you want to read this slew of the new yourself.

Here is a landmark English case on illegally obtained evidence in civil proceedings: Imerman v Tchenguiz [2010] EWCA Civ 908, and CMS Cameron McKenna’s case note.  A husband in business with his wife’s brother separated from his wife.  Worried that he would hide assets from the wife, the brother copied information from the husband’s computer.  The English Court of Appeal refused to admit the evidence.  One of the little changes wrought by the Victorian Evidence Act, 2008 is to make clear that illegally obtained evidence may be inadmissible in civil proceedings as much as in criminal proceedings.

Then there is a mega-solicitor’s negligence decision from NSW’s District Court’s Judge Levy: Mills v Bale [2010] NSWDC 162.  It was a regretted settlement case of the kind I wrote about in ‘Compromise of litigation and lawyers’ liability’ (2002) 10 Torts Law Journal 267.  The client accepted a fraction of his claim on the basis of advice that the other side had ‘damning video evidence’ and that he might get nothing if he went to trial. The solicitor had no file note of the relevant conversation and no recollection of the alleged events. The client won more than $700,000, a rare victory since such cases do not often succeed. The judgment is 807 paragraphs long.  Analysis of the witnesses’ credit occupies 100 paragraphs.

Two from Victoria’s Court of Appeal:

  • First, Justice of Appeal Ashley with whom Acting Justice of Appeal Beach agreed, pronounced the latest chapter in the extraordinary saga of Shaw v Gadens Lawyers, another victory for professional negligence specialist Sam Tatarka.  It has not been published on Austlii, but was delivered on 3 August 2010. The Court confirmed that when VCAT determines civil disputes involving compensation claims, they do not entertain a cause of action created by the Legal Profession Act, 2004.  Rather, they are given a statutory grant to hear professional negligence cases according to common law principles.  Let me know if you want a copy.
  • Secondly, the latest in the saga of Byrne v Marles (see this earlier post about the earlier decision which threw the Legal Services Commissioner’s office into chaos): Byrne v Legal Services Commissioner [2010] VSCA 162.  Mr Byrne successfully sought judicial review of the Commissioner’s decision to characterise a complainant’s complaint as a disciplinary complaint.  The Appealohs held that there was a breach of natural justice in failing to provide an opportunity for the solicitor to be heard on that question.  The Commissioner appears then to have written to every complainant and given them an opportunity to make submissions.  Mr Byrne made submissions, and the Commissioner, unmoved, came to the same decision.  He sought judicial review of that, and that is what this decision is about.  He failed, but along the way, had the former Commissioner re-spanked.  The former Commissioner’s reasons for reaffirming her original classification, absolutely typical of the reasons I have seen her give in a template-like manner, over and over, were described by Justice of Appeal Ashley at [96] as ‘too smart by half. They invited further proceedings’.  In fact, his Honour found at [63] that they were not reasons at all; they were just a statement of the conclusion which the reasons should have supported.

Another decision of the utmost importance to this blog, which again passed me by, is the decision of New Zealand’s Supreme Court (equivalent to our High Court) in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1; [2008] NZSC 55.  More to come, needless to say.  Meanwhile, You will appreciate my interest in the case when you consider that the Chief Justice opined that disciplinary proceedings making serious allegations should be proved on the criminal standard of proof (remember what Justice Finkelstein said about disciplinary proceedings?), as opposed to the civil burden as explained in Briginshaw v Briginshaw.  Paragraph no. 1 of the Chief Justice’s reasons said: Continue reading “Can’t keep up”

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Prosecutors’ duties in professional discipline cases

There is an interesting article by Ian Wheatley at (2008) 16 Journal of Law and Medicine 193.  Titled ‘The Criminalisation of Professional Misconduct Under the Health Professions Registration Act 2005 (Vic): How is a Fine of $50,000 Not Punitive?’. It compares the rights of alleged criminals and the maximum sentences in criminal law, with the rights of doctors alleged in disciplinary proceedings to have committed disciplinary wrongs of a similar degree of seriousness, and pours some much-needed acid on the hymn sung by so many Bureaux de Spank that the proceedings are ‘purely protective of the public’ and involve no element of punishment.  But what protections actually exist for respondents in professional disciplinary proceedings?  It is the purpose of this post to examine three of them.

First, I have posted before about the application of the privilege against penalties to disciplinary proceedings, and about what Justice Finkelstein said in Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620:

‘I would hold that a regulatory body that brings a civil proceeding to recover a penalty is under an obligation similar to that owed by a prosecutor to an accused.’

Secondly, in addition to this principle, many bodies and statutory officers charged with prosecuting professionals are governed by the governments’ model litigant rules.  Victoria’s Legal Services Commissioner is a model litigant, and so is governed by these guidelines (which include an obligation to avoid litigation where possible, to keep the costs of litigation as low as possible, and not to take advantage of respondents to disciplinary charges who lack the resources to litigate the disciplinary claim).

But where a barrister is involved in the prosecution, it is, at least in Victoria, surely the application of the conduct rules in criminal proceedings which comes closest to requiring the kind of conduct which Justice Finkelstein considers to be appropriate.  And this is the third thing.  The Victorian Bar’s practice rules define ‘criminal proceedings’ as follows:

‘includes disciplinary proceedings, in which context other expressions appropriate to criminal proceedings include corresponding meanings appropriate to disciplinary proceedings and in particular “a serious criminal offence” includes a disciplinary shortcoming which, if proved, involves the serious possibility of suspension or deregistration (or the equivalent).’ Continue reading “Prosecutors’ duties in professional discipline cases”

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Legal professional privilege and disciplinary complaints by non-clients

If you are a solicitor and someone other than your client or former client has lodged a disciplinary complaint against you in Victoria, you should not disclose the subject matter of any communications to which legal professional privilege attaches, or might arguably attach, unless you are instructed to do so by your client or former client. Nor should you give up any document which records such a communication, or disclose any communication which tends to reveal the content of a privileged communication.

That is so even if the Legal Services Commissioner purports to compel the information, for in the case of investigations of non-client complaints, the client’s or former client’s privilege trumps the Commissioner’s powers of compulsion.  If you have already disclosed privileged communications, assuming that the Commissioner had the power to compel you to do so, you should be aware that the disclosed communications may well still be privileged notwithstanding the disclosure to the Commissioner, and so unable to be used against you in a disciplinary prosecution arising from the investigation, and you should probably advise your client or former client.

Until recently, the Commissioner took the view that legal professional privilege was impliedly abrogated in the case of non-client complaints by necessary intendment of the Legal Profession Act, 2004.  Not so.  The reasons why follow below.  These propositions are good law in VCAT’s Legal Practice List, at least.

Remember that it is still the common law which regulates legal professional privilege for the purposes of Legal Services Commissioner investigations and (except to the extent that it adopts the Evidence Act, 2008 in any particular proceding) in VCAT’s Legal Practice List. Continue reading “Legal professional privilege and disciplinary complaints by non-clients”

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The rule against duplicity in disciplinary charges

‘Quis custodiet ipsos custodes?’, a Melbourne lawyer’s criminal law blog,  explained the criminal law rule against duplicity here.  I am not much interested in it from a professional discipline point of view, and it seems the courts tend not to get over-excited about it either (though the lawyer made some progress with it in Law Society of NSW v Shalovsky [2008] NSWADT 14).  In the course of my readings about other things, I came across the Court of Appeal’s discussion of the principle as applied in a professional discipline prosecution of a lawyer in Woods v The Legal Ombudsman [2004] VSCA 247. Despite the numbering below, the first paragraph is in fact [39]:

  1. The rule against duplicity ordinarily prohibits a prosecutor from charging in one count of an indictment, presentment, information or complaint two or more offences provided by the law.[11] It seems plain enough that the basis for the rule is fairness to the defendant in the sense of his or her being informed, at the very outset, what is the specific offence which is being alleged and, if it is established, to have certainty of what charge he or she has been found guilty. Thus, as Evatt, J. explained in Johnson v. Miller[12]: Continue reading “The rule against duplicity in disciplinary charges”
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Supreme Courts’ inherent jurisdiction to discipline lawyers to be invoked sparingly

Update, 5 March 2012: See also, to similar effect, Bott v Carter [2009] NSWSC 236 at [28] – [34].

Original post:  In AM v Legal Practitioners Disciplinary Tribunal [2010] NTSC 02, a Full Court of the Supreme Court of the Northern Territory heard an appeal by way of rehearing into a decision of the Disciplinary Tribunal (see my earlier post on the case).  One of the grounds of appeal was that the Tribunal had not had jurisdiction. The Law Society of the Northern Territory argued that whether or not the Legal Practitioners Disciplinary Tribunal had had jurisdiction, the matter was now before the Court on a rehearing and it could exercise its inherent jurisdiction, rendering the fascinating jurisdictional questions irrelevant.  ‘I don’t think so!’, said the Chief Justice, with whom Justice Riley agreed.  ‘Wrong way, go back!’ they said with emphasis, noting that the Northern Territory was not the wild West:

‘[159] The Law Society submitted that if this Court was of the view that the Tribunal lacked jurisdiction, as the evidence and the matter of the practitioner’s conduct is now before the Court, it should exercise its inherent jurisdiction over the profession by dealing with the practitioner in respect of her conduct. This approach would require this Court to rely on evidence placed before the Tribunal in the course of invalid proceedings. Counsel for the practitioner submitted that as the Law Society chose the Tribunal route, it would be inappropriate for this Court to exercise other than the appellate jurisdiction. As counsel put it it is “counter-intuitive” to make use of material put before the Tribunal and, if the Tribunal lacked jurisdiction, justice demands a fresh proceeding. To exercise the inherent jurisdiction de novo would involve formulating a charge and carrying the baggage of the old proceedings. Overall, suggested counsel, exercising the inherent jurisdiction would carry with it a flavour of the “wild west”.

[160] In my view, there is considerable force in the submissions of counsel for the practitioner. If I am wrong in my view that the Tribunal possessed jurisdiction, in my opinion this Court should not endeavour to exercise its inherent jurisdiction.’

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Privy Council on privilege as an answer to legal regulators’ powers of compulsion

Update, 24 September 2018: See now Financial Reporting Council Limited v Sports Direct International Plc [2018] EWHC 2284.

Update, 13 May 2012: See now Finlayson v Legal Practitioners Conduct Board [2012] SASC 77.

Original post: Rosemary Pattenden’s The Law of Professional-Client Confidentiality is one of those books which, until now, I would like to have but could not bring myself to shell out for.  Just now, I spent $134 on a second-hand copy, and here’s why. In a web-based update for the book is a reference to B v Auckland District Law Society [2003] UKPC 38 which I wish I had known about earlier, like when I was arguing whether the Legal Profession Act, 2004 abrogates by necessary intendment legal professional privilege over client documents which the Legal Services Commissioner purported to compel the client’s solicitor to produce as part of a disciplinary investigation of a complaint by a non-client, namely the client’s opponent in litigation.  All this time I have been languishing in the darkness of ignorance of the Privy Council’s view that a New Zealand statute not dissimilar to the Legal Profession Act, 2004 did not impliedly abrogate privilege in the way the last Legal Services Commissioner believed the 2004 Act did.  Of course, every statute is different, and the question is always one of statutory construction.  But the New Zealand provision was pretty bog ordinary, and the resolute interpretation of the Commonwealth’s highest court is a promising place for the analysis to start from the point of view of clients. Continue reading “Privy Council on privilege as an answer to legal regulators’ powers of compulsion”

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Commissioner’s obligation to charge dishonesty if he intends to allege it

Relatively recently, I posted on the question of whether a Bureau de Spank desiring to rely on a practitioner’s dishonesty or other form of conscious wrongdoing must expressly allege it in the charge, and discussed Walter v Council of Queensland Law Society Incorporated (1988) 77 ALR 228 at 234; [1988] HCA 8.  Now, in Legal Services Commissioner v Madden (No 2) [2008] QCA 301 the Queensland Court of Appeal has had a go, and reversed a decision of the Court’s Chief Justice sitting on the Legal Practice Tribunal.  The solicitor had previously been disciplined in relation to his trust account.  He was charged with gross delay in litigation which resulted in applications by the other side to compel the achievement of various interlocutory steps.  He dealt with those applications without advising his client, agreed on his client’s behalf to pay costs, withdrew money to pay those costs from monies held in trust on account of fees and disbursements, and then charged the client fees for his work in fixing up his own mistake.  He also acted for both husband and wife in the preparation of a pre-nup, apparently stuffing it up, and then later acted in a matrimonial dispute for the husband alone, described as a particularly obvious conflict of duties.

The Chief Justice made findings of dishonesty in the absence of any allegation of dishonesty in the charge.  One might say, in fact, that he went out of his way to do so.  First he sought comment in relation to whether on the agreed facts, the Tribunal was free to draw inferences that dishonesty actuated the solicitor’s conduct, and invited the Commissioner to amend the charge so as to allow exploration of that issue.  His Honour adjourned the hearing to give the Commissioner time to think about that. On the return of the hearing, the Commissioner declined the invitation to amend.  So the Tribunal put out a document specifying, as a matter of procedural fairness, the inferences it was considering drawing, and invited argument.  The solicitor swore an affidavit responding to the Tribunal’s document.  The Commissioner’s counsel cross-examined the solicitor, but did not put it to him that he had acted dishonestly. The Tribunal then concluded that the solicitor had acted dishonestly, and decided to strike him off rather than go with the fine and reprimand recommended by the Commissioner.  Ooffa!

‘Wrong way. Go back!’ said the Court of Appeal.  It started with a general proposition:

’54 It is … a well recognised rule of practice in civil proceedings that, although the word “dishonesty” is not necessarily required, any charge of dishonesty must be made in clear terms.  In a well known passage in Belmont Finance Corporation Ltd v Williams Furniture Ltd & Ors [1979] Ch 250 at 268  Buckley LJ said: Continue reading “Commissioner’s obligation to charge dishonesty if he intends to allege it”