England’s new Legal Ombudsman

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.’

New Legal Services Commissioner to talk on his office’s new direction

On Tuesday week, the 17th, Michael McGarvie, Victoria’s somewhat-new Legal Services Commissioner (he has been Commissioner or Acting Commissioner for coming on 10 months) is going to give a talk at the Leo Cussen Institute at 5.30 p.m.  Mr McGarvie has acknowledged the need to build trust with the profession, and to reduce the extraordinary delays in complaint handling with which his predecessors have been associated.  The jury is still out in those regards, but it is early days, and at least change is being pursued, some of which sounds quite promising. Leos bill the ‘unique’ event, which will cost you a mere $95, as follows: Continue reading “New Legal Services Commissioner to talk on his office’s new direction”

New complaints scheme in England

For English news, I have switched from reading The Times‘s legal affairs section to The Guardian‘sThe Times wanted me to pay to read, and I said no.  I am not a connoisseur of international newspapers, but from what I can tell, The Guardian is the best newspaper in the world, so I am happy to have discovered its legal section.  International in outlook, it brings welcome news of the law in under-reported areas of the world.

England is in the throes of massive change to lawyer regulation.  CMS Cameron McKenna has published an article entitled ‘Solicitors PI: Counting the Cost of Improved Legal Regulation’.  Self-regulation, Joe Bryant says, is ‘irretrievably abandoned’.  The new Legal Services Board will run extensive and expensive advertising about the new regime.  There is a new body named in a way not to leave anything to the imagination — the Office for Legal Complaints, tipped to have jurisdiction to make awards of up to AU$170,000 on the papers.  And it’s all going to increase the costs of doing business as a lawyer.   Of the OLC, the article says: Continue reading “New complaints scheme in England”

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”

Civil Procedure Bill

The civil procedure landscape is changing fast.  A new Evidence Act.  The establishment of the Costs Court.  The Federal Court’s rocket docket.  The Supreme Court’s Commercial Court.  The abolition of the County Court’s Practice Court in favour of a managed list approach.  Early neutral evaluation.  The increasing use of Associate Justices and Judicial Registrars. The New Courts Act project, which will produce one Act regulating the Supreme, County and Magistrates’ Courts.  Now, here comes a big one: the Civil Procedure Bill, 2010.  There are similar moves afoot at the federal level: the Civil Procedure Bill, 2010 (Cth).

Here is Corrs Chambers Westgarth’s commentary on the Victorian bill. And here is Allens’s.  Lots of room here for a reinvigoration of the law of lawyers’ obligations to the Court. Justice Ipp’s ‘Lawyers’ Duties to the Court’ (1998) 114 Law Quarterly Review 63 ought to form the backbone of commentary to the Act, and ought to be compulsory reading for all those who join litigation departments.  This speech of the Federal Court’s Justice Barker in 2009 is also worth a look.

Shrink chucks a Hercules re fellow shrink’s Medical Board complaint

Readers, to ‘chuck a Hercules’ is to follow in the footsteps of Keith Hercules, solicitor, of Melbourne whose suit for defamation against the complainant in respect of the complainant’s publication of a disciplinary complaint to the Law Institute is the subject of Hercules v Phease [1994] 2 VR 411, which I noted here.  (Compare Lincoln v Daniels [1962] 1 QB 237, Rajski v Carson (1988) 15 NSWLR 84, Lansley v Gaynon [2001] NSWSC 695, and Foley v Radford [2008] NSWDC 167.)  Now one psychiatrist has has sued another for defamation, injurious falsehood, and misleading and deceptive conduct over his complaint to the Medical Board.  The case is Lucire v Parmegiani [2010] NSWDC 115. You can read the letter below, and find out about NSW’s mandatory reporting regime which requires doctors to dob each other in on pain of disciplinary sanction if they don’t.

The defamation claim was dismissed summarily by reference to a statutory absolute privilege defence.  Judge Gibson suggested in dicta that the common law equivalent was of only qualified privilege, a finding which was said to be consistent with Mann v O’Neill (1997) 191 CLR 204, but apparently inconsistent with the Full Court of the Supreme Court of Victoria’s decision in Hercules v Phease, which said that the publication of a complaint about a lawyer is an occasion of absolute privilege.  Mind you, the District Court’s attention does not seem to have been drawn to Hercules v Phease. The injurious falsehood claim was not summarily dismissed, because the statutory protection did not apply, and likewise the misleading and deceptive conduct claim.  Judge Gibson was not even prepared to find, at this early stage of the proceedings, that the writing of the letter was not an activity in ‘trade or commerce’, suggesting that ‘the bringing of complaints has long been regarded as conduct being capable of giving rise to a cause of action under s 52 Trade Practices Act 1975 (Cth): Merman Pty Ltd v Cockburn Concrete Ltd (1988) 84 ALR 521.’ Continue reading “Shrink chucks a Hercules re fellow shrink’s Medical Board complaint”

The Tax Man and the Law Institute, round III

In Deputy Commissioner of Taxation v Law Institute of Victoria [2010] VSCA 73, the Court of Appeal unanimously overturned the trial judge’s decision in Law Institute of Victoria Limited v Deputy Commissioner of Taxation (No 2) [2009] VSC 179, which I posted about here.  I posted about round 1, before that, here.  Justice of Appeal Mandie, with whom the other judges agreed, said that the documents were ‘innocuous’ and suggested that they would not have attracted public interest immunity even had the Law Institute argued that the nature of their contents was so secret and sensitive that the public interest in keeping them secret outweighed the public interest in protecting the revenue for which the Tax Man wanted them.  But the situation was worse than that for the Law Institute, according to his Honour.  The Law Institute argued in favour of public interest immunity on the basis that the documents were part of a class of documents so secret and sensitive that they should be protected irrespective of their contents.  ‘Bollocks’ said the Court of Appeal. Continue reading “The Tax Man and the Law Institute, round III”

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”

States’ and territories’ disciplinary systems summarised by the government

Helpfully, the government has put out a little discussion paper about its proposal for a new national legal regulator.  Turns out the proposal is for the existing regulators to keep on keeping on, rebadged as offices of the Uber-Bureau but for there to be one central number for the Uber-Bureau which will oversee everything panoptically from a station atop Mt Kosciuszko.  Anyway, within the discussion paper is a section summarising how things are now in relation to complaints against lawyers in each of the states and territories: Continue reading “States’ and territories’ disciplinary systems summarised by the government”

Latest on claims for the other side’s lawyers to pay your costs personally instead of their client

Kelly v Jowett [2009] NSWCA 278 is the latest wasted costs case.  The lawyers against whom the order was made had tendered against them their own intra-office memorandum:

‘Your performance in the conduct of this matter has been pathetic. Your failure, given the recent transfer of these matters, to even have the courtesy to provide Hamad with a memo regarding the status of the file is totally inconsiderate of a colleague already burdened with some of your other similarly neglected files. This file is your mess, clean it up.’

Ooffa! Justice of Appeal McColl, with whom the other justices of appeal agreed, explained at [61] that: Continue reading “Latest on claims for the other side’s lawyers to pay your costs personally instead of their client”

How would Goldberg v Ng be decided today?

For the moment, I am taking Advanced Evidence at Melbourne University, and Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 is on the reading guide.  As it is a case about a lawyer-client dispute, and as it not likely to be at the forefront of reading about legal professional privilege since Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, I thought it would be appropriate to share a proper note of it.

How would it be decided today? Both decisions were decided according to the common law.  This post is more about the common law than the Evidence Act, 2008. Soon enough, though, s. 122(2) of the Evidence Act, 2008 may provide the answer. But it’s a pretty Mann v Carnellish section, so the answer may well turn out to be the same at common law and under the Act.  It provides for waiver where the privilege holder ‘acted in a way that is inconsistent with … objecting to the adducing of the evidence [on the basis of client legal privilege]’.  Without limiting sub-section (2), a client is taken, according to sub-section (3)(a) to have acted inconsistently if he knowingly and voluntarily disclosed the substance of the evidence to another person.’ According to sub-section 5(a), a client is not taken to have acted inconsistently merely because the substance of the evidence has been disclosed (i) in the course of making a confidential communication or preparing a confidential document, or (ii) as a result of duress or deception, or (iii) under compulsion of law.’

The majority’s language in Goldberg was certainly tweaked by Mann.  ‘Fairness’ is out as the touchstone, and the search for conduct inconsistent with the maintenance of the privilege against the person seeking to establish waiver is in, a category of conduct which overlaps with but does not correlate with unfairness.  But would the tweak affect the outcome?  Justice McHugh, who alone in Mann thought privilege had been waived,  said at [108] he thought Goldberg was wrongly decided, as did Justice Kirby at [147], maintaining the position in his dissenting decision in the Court of Appeal in Goldberg v Ng.  The plurality judgment of the rest of the Court (Chief Justice Gleeson and Justices Gaudron, Gummow and Callinan) seemed content with the decision, however (see below).

In outline, a dispute over a payment by a client to his solicitor’s wife of about $100,000 was concurrently the subject of Supreme Court proceedings and a professional conduct complaint made to the NSW Law Society.  The proceedings and the complaint were both brought by the former client.  In response to a request by the Law Society to look at a proof of evidence the solicitor had prepared for the purpose of a suit for fees he had intended to bring against the former client, the solicitor volunteered it (free of compulsion to do so) for the purpose of convincing the Law Society of his case.  Later, he did likewise with a second proof of evidence he drafted at his lawyer’s request in response to the allegations in the former client’ suit against him.  Had he not volunteered these two proofs, he would in the ordinary course have had to provide a formal written response to the complaint, but he did not have to do so. The Law Society had promised not to show them to the former client, and reassured him that he maintained his privilege over the documents notwithstanding that he had disclosed them to it.  The Law Society dismissed the disciplinary complaint by the Law Society by reference to the information contained in the proofs of evidence, and advised the client complainant to pursue his remedies at law.  Had the complaint not been dismissed, the Fidelity Fund might have paid out the $100,000 or so claimed in the Supreme Court proceedings, obviating the need for those proceedings.  The proceedings having to continue, however, both proofs were subpoenaed by the former client, along with the rest of the Law Society’s file, which were but ‘different emanations of the same dispute’ — in fact, the complaint had been initiated by providing a copy of the issued but as yet un-served Supreme Court documents to the Law Society with a request that the allegations within be investigated.

The High Court confirmed the lower courts’ decisions that privilege had been waived over the documents by their provision to the Law Society and so could be inspected following production in response to the subpoena.  The dissenters said this was a plain case of limited waiver and ‘fairness’, the majority’s touchstone, had nothing to do with it.  Furthermore, they took issue with the majority’s characterisation of the solicitor’s conduct as being voluntary and calculated self-interest, saying that the threat of compulsion, and an obligation of frankness in solicitors towards legal regulators meant that there was a quasi-compulsion operating. Continue reading “How would Goldberg v Ng be decided today?”

Ombudsman carries out own-motion investigation of Legal Services Commissioner

A former client of mine, dissatisfied with the adverse outcome in a complaint he lodged making serious allegations against a senior member of the profession has tipped me off to an own motion investigation conducted into the Bureau de Spank by the Victorian Ombudsman.  The results, reproduced below, will not assist morale at the Bureau (compare his excoriation of the migration agents’ Bureau).  But solicitors can expect, I suppose, for the investigation process to become a bit more investigative than the gentlemanly exercise it has been as long as I can recall, and for more prosecutions to be brought.

In the hierarchy of regulators, I doubt that the Legal Services Commissioner is a particularly desirable post, but it should be.  Regulate the lawyers diligently, and the scope for all the others’ wrongdoing which the other regulators regulate is likely to be retarded.  It should also be desirable because it would be fun: the Commissioner doesn’t have to worry about the privilege against self-incrimination, and at least in complaints brought by former clients, can cruise past the usual irritant to pious investigators, legal professional privilege.  Imagine an investigation where you can gun for fines of $50,00o per offence, or the inherently spectacular thrill of seeing a lawyer fall from his perch with the wonderfully archaic fanfare of being struck from the rolls, but where you can essentially administer as many interrogatories as you like.  And imagine that default in answering the interrogatories is a crime the investigation of which is to be carried out by an investigator you personally get to choose in your capacity as head honcho of the Legal Service Board!  It should be enough to make an investigator pant with excitement.  Many a federal policewoman would probably give up her taser in exchange for these kinds of powers.

Continue reading “Ombudsman carries out own-motion investigation of Legal Services Commissioner”

Sex offence doctor’s VCAT success stayed pending appeal

The Herald Sun has been active recently with front page excoriation of VCAT’s professional regulatory review jurisdiction for letting loose on the public again those they have described in unusually large letters as ‘sex fiends’ and ‘insane killers‘.  The two decisions are SL v Medical Practitioners Board of Victoria [2008] VCAT 2077, a decision of Judge Ross’s tribunal, and XJF v Director of Public Transport [2008] VCAT 2303, a decision of Deputy President Macnamara.  Given that the psychiatric evidence about the taxi driver was ’emphatically favourable’, the homicide occurred 18 years ago, and the taxi driver, whose son has leukemia and needs flexible work, has led an apparently blameless and psychiatrically acceptable life since, the Hun was a bit harsh. It surely cannot be right to call a man who committed a homicide two decades ago in the grip of a psychosis from which he has recovered an ‘insane killer’ in such a way as to refer to the present.

The taxi driver decision was reversed legislatively. The Medical Practitioners Board appealed the doctor’s success in VCAT.  Justices of Appeal Redlich and Weinberg granted an unusual stay of VCAT’s decision: Medical Practitioners Board of Victoria v SL [2008] VSCA 264. The appeal ultimately failed: [2009] VSCA 109.

Continue reading “Sex offence doctor’s VCAT success stayed pending appeal”

How to deal with a Legal Services Commissioner complaint

In the 2007-08 financial year, the Legal Services Commissioner (aka the Bureau de Spank on this blog) received 2033 complaints (801 civil complaints, and 1584 disciplinary complaints).  That’s one for every 7 of the 13,837 lawyers who worked in Victoria as at the end of March 2008.  17% of them were characterised as mixed civil and disciplinary complaints.  One in 12 complaints was referred to the Law Institute for investigation.  Comparatively few prosecutions were brought.  In fact in only 1 in 25 complaints was the trigger for a prosecution arrived at, and a small fraction of those were or will be prosecuted.  Only 32 reprimands or cautions were issued by the Commissioner.  I take all this from the latest annual reports of the Commissioner (see my posts on the two previous annual reports here and here) and the Legal Service Board.  It makes me realise that mine is a skewed perspective, and that solicitors hire barristers to represent them in the complaints which are more complicated, more serious, or more anxiety-provoking.  Accordingly, much of what follows must be taken as advice in relation to the more serious end of the complaints spectrum.

Most of my clients want to avoid, above everything else, prosecution in VCAT.  Fair enough too.  All other outcomes remain hidden from public scrutiny.  Successfully defending a prosecution is a hollow victory: the allegations against you still get published in the reasons on Austlii, and the prospect of a costs order in your favour is virtually nil: Clause 46D, Schedule 1, Victorian Civil & Administrative Tribunal Act 1998.  It is the lawyers who do not do a good job of responding to the complaint who get prosecuted, rather than those who do the worst things. There is of course a limit to that proposition: do something bad enough (especially in relation to trust accounts) and you will be prosecuted, assuming that the Commissioner thinks she can prove it, regardless of how cooperative you are in the investigation.  The Commissioner has recently published guidelines in relation to her prosecutorial discretion: here and here.  Some of the factors she considers are:

  • whether the practitioner acknowledges his or her error and/or has shown remorse;
  • whether the practitioner made a mistake and is unlikely to repeat the conduct;
  • whether the practitioner cooperated during the investigation;
  • whether a guilty finding may entitle the complainant or others who may have been adversely affected to compensation.

Not doing a good job during the investigation phase manifests in two ways:

  • failing to take legitimate and forensically useful technical points; and
  • (where there are none) failing to realise that demonstrating a current understanding of the relevant law, admitting the error, expressing contrition, and taking the rap is always a better policy than being uncooperative.

Continue reading “How to deal with a Legal Services Commissioner complaint”

Restraints on use of information obtained by compulsion

The rule in Home Office v Harman governs the use of documents and information obtained by people generally by various forms of compulsion in litigation: the court rules about interrogatories (a form of statute), Court orders for discovery, witness statements served pursuant to an order to do so.  But when I carefully checked this point a while ago, it seemed clear that the principle had no application outside litigation, the exception being, perhaps, arbitration.

Outside litigation, however, the main source of powers to compel the production of documents and the disclosure of information is statute, and the main repository of them mandarins.  When a mandarin (disguised say as a Commissioner, or an Inspector) obtains information by compulsion, there is an important limit on what the mandarin may do with it.  The important limit is that the information may only be used for the purpose the power of compulsion was bestowed.  This is a proposition which I vaguely knew I had read somewhere, but which has several times eluded me when I tried to look it up.  But now it’s back in my quiver, courtesy of Apache Northwest Pty Ltd v Agostini [2009] FCA 534.  The relevant High Court authority is Johns v Australian Securities Commission (1993) 178 CLR 384; [1993] HCA 56, which is posted about separately here.

Continue reading “Restraints on use of information obtained by compulsion”

More on confidentiality and disciplinary hearings

A propos my post about an English solicitor’s revulsion for the reptiles of the press engorging themselves on the protection of the public by the public spanking of lawyers:  ACT’s lawyers are up in arms.  It seems that suddenly, disciplinary hearings are open to the public, with the transfer of lawyers’ discipline hearings to the ACT Civil and Administrative Tribunal.  Just like all the other hearings except for cases about terroists, spooks, nice people spooks think might be terrorists, spice, rapists and paedophiles.  Their Law Society won’t have it.  The Canberra Times editorialised on 27 April 2009 that everyone else suffers the slings and arrows thrown at them by maddies and baddies (as well as the genuinely aggrieved), and why should lawyers be different?

Why indeed?  Well, I often feel for the clients of lawyers, who have their confidences ripped open because someone — say their client’s husband — has decided that the lawyer in whom they confided their secrets as if in a modern day confessional did something wrong.  The identity of clients, and all features of the matter out of which a disciplinary prosecution springs as might identify the lawyer’s client should certainly be more anonymised than it is, at least on the net.  But otherwise? Bah!  Here’s where to go to look up decisions of the new Tribunal.  The Law Society’s response to the editorial was the following letter to the Editor: Continue reading “More on confidentiality and disciplinary hearings”

Statutory powers of compulsion to be invoked reasonably

Justice Pagone considered the Commissioner of Taxation’s invocation of a power to compel the production of documents and information (s 264(1)(b) of the Income Tax Assessment Act 1936 (Cth)). In this case, the subject of the compulsion was the Law Institute, more used to flinging such powers around itself.  Legal regulators not infrequently list poorly formulated allegations drafted by angry laypeople and then requiring ‘a full written response’ from lawyers.   Sometimes, requiring a ‘full written response’ is specifically contemplated by statute (e.g. s. 4.4.11(1)(a) of the Legal Profession Act, 2004, which is about investigating disciplinary complaints) but sometimes it is not (e.g. s. 7.2.7 of the same Act, which relates to investigations of offences against the Act).  If the response is not ‘full’ in the way the regulators think about ‘fullness’, the respondents risk being convicted of the crime of non-cooperation (seriously: see s. 7.2.7(1)).  His Honour cautioned regulators and said they must use such powers ‘wisely and responsibly’: Continue reading “Statutory powers of compulsion to be invoked reasonably”

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”