In disciplinary proceedings, prosecutors often wrongly assume that findings in prior decisions (usually criminal convictions) are both admissible and un-challengeable by the respondent. Neither is true, however, at least where what is relied on by the prosecutor in the disciplinary case is something more than the fact of the conviction (e.g. the fact of the conduct which gave rise to it). Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 is much-cited, but has flown under the radar in Victoria and I must confess that I was ignorant of it until recently. It says as a matter of ratio decidendi that a professional in a disciplinary case is entitled to call evidence to contradict findings made in a previous criminal prosecution, and to do so is not of itself an abuse of process. The same must be true, a fortiori, I would suggest, in relation to findings in a civil case.
Section 91 of the Evidence Act 2008 is often forgotten, too. It says that evidence of a Court’s or tribunal’s decision or a finding of fact is not admissible to prove the existence of a fact that was in issue in that proceeding. Not only are reasons usually hearsay and opinion evidence, but the tender of reasons to prove the truth of what they record is specifically prohibited, except to the extent necessary to establish a res judicata or issue estoppel. Where the common law applies, an even stricter result obtains by virtue of the rule in Hollington v F Hawthorn & Co Ltd  KB 587.
I’m interested to know of how other jurisdictions deal with these questions, which also crop up in personal costs order cases, also discussed below.
Continue reading “Disciplinary prosecutions arising out of criminal convictions and civil findings against professionals”
The table of contents of new issues of Legal Ethics Journal are available online. Its general editor is Christine Parker from Melbourne University. Its advisory board features a number of Australians too: Adrian Evans, Monash University, Reid Mortensen, University of Southern Queensland, and Gino Dal Pont, University of Tasmania. Unlike the rest of the journal, ‘correspondents’ reports’ are free. Here are some beautifully written examples from Melbourne University’s Linda Haller, who is also the journal’s ‘Ethics in Practice Editor’: one, two, three. Other correspondents report on England and Wales, China, Canada, and America. You can sign up for emails with news from the Journal.
The English spent £20 million on a new Legal Ombudsman who, since Thursday, has had power to issue fines of up to nearly $50,000. He is the former director of a homeless shelter, Adam Sampson, pictured. He is not a lawyer, but his wife is a barrister. This is his website. And this — yes — is the Ombo’s blog. And this is his branding: ‘Fair, open, effective, shrewd and independent’. I hate lawyers’ absurd branding exercises (I was going to have business cards printed saying ‘Stephen Warne: Good, but Cheap’), but I like his. The Guardian‘s Afua Hirsch’s takes may be read here and Neil Rose’s here. Listen to this and learn Australia:
‘”We’re going to be inquisitorial,” she [Elizabeth France, Chairwoman of the Ombudsman’s office’s Board] says. “The ombudsman’s team will look at the evidence they’re presented with, ask any questions they need to ask and level up the playing field to the extent of helping to articulate a complaint, but they will be doing it in a way which is not bearing, I hope, any resemblance to the legal process.”
So there will not be lengthy to-ing and fro-ing between the parties, for example. Complaints will not stretch on for months (not that many do now, in fairness to the existing bodies). Miss a deadline and, unless the lawyer has a very good excuse for doing so, the ombudsman will make his decision without their input. The only remedy then will be judicial review.’