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Tribunals not bound by the laws of evidence

Update, 10 August 2017:  It once seemed to me having read Pizer’s Annotated VCAT Act (2015) at [8.60] that there was an argument to be made that the Evidence Act 2008 might have some operation to the extent that it is not over-ridden by s. 98 of the VCAT Act 1998, in that the Evidence Act 2008 empowers courts to do certain things which might not be described as part of the ‘rules of evidence’ referred to in s. 98. The Evidence Act 2008’s definition of ‘Victorian court’ (in whose proceedings the Act is said to apply) is inclusive of tribunals bound by the law of evidence, rather than excluding all tribunals which are not bound by the law of evidence, and VCAT has been regarded as a ‘court’ for various purposes. But the Court of Appeal has effectively decided (albeit without considering my thought) that the Evidence Act 2008 simply does not apply in VCAT: Karakatsanis v Racing Victoria Limited [2013] VSCA 305 at [32] – [34].

Update, 9 August 2017:  To gather the law together in one place:

(a) Pizer & Nekvapil, Pizer’s Annotated VCAT Act treats this question at [VCAT.98.160] citing Curcio v. Business Licensing Authority (2001) 18 VAR 155 at [26]; Pearce v. Button (1986) 8 FCR 408 at 422; Golem v TAC (2002) VAR 265 at [9(iv)]; Secretary to the Department of Infrastructure v Williamstown Bay and River Cruises Pty Ltd [2011] VSC 191 at [59]; and Medical Practitioners Board of Victoria v Saddik [2010] VCAT 366 at [44].

(b) A reader commended Justice Giles’s article ‘Dispensing with the Rules of Evidence’ at Vol 7 No 3 Australian Bar Review.

(c) Consider also Danne v The Coroner, [2012] VSC 454, noted here.

Original post: Here is a useful collection of interstate and federal law about what statutes are actually to be taken to mean when they say that a tribunal is not bound by the laws of evidence (like VCAT), from Justice Refshauge’s reasons in Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283: Continue reading “Tribunals not bound by the laws of evidence”

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Appeals from VCAT on the basis of inadequate reasons

A failure to give reasons is an error of law.[1] Seriously inadequate reasons are corrosive of public confidence in the administration of justice and ought not to be tolerated by an appeal court, since justice must not only be done but be seen to be done. This is the first public policy informing the requirement for reasons by courts and court-like tribunals. As the Supreme Court has observed:

‘To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant.’[2]

That is especially so in relation to factual determinations where a right of appeal lies only on a question of law. Even more especially so in a quasi-criminal[3] prosecution with serious consequences for the practitioner in which a disciplinary prosecutor carries the burden of proof as described in Briginshaw v Briginshaw. Continue reading “Appeals from VCAT on the basis of inadequate reasons”

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Summary judgment in a disciplinary prosecution?

I wrote about the test case on the application of penalties privilege to disciplinary prosecutions of solicitors brought by the Legal Services Commissioner here.  Now the Commissioner has made another novel application in the same case, which usefully provides some law on the appropriateness of prosecution applications for summary judgment in disciplinary prosecutions (Legal Services Commissioner v LJS [2015] VCAT 649).  The answer, according to VCAT’s President, Justice Garde?  Not very appropriate, certainly not in this case, despite the complete non-involvement of the respondent solicitor, because: Continue reading “Summary judgment in a disciplinary prosecution?”

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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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Suburban solicitor tenders video of himself asking employee for sex 78 times in his own sexual harrassment case

A solicitor somewhere in Melbourne’s suburbs failed in his defence of sexual harrassment claims and was ordered by VCAT’s President, Justice Garde, to pay his victim compensation of $100,000: GLS v PLP [2013] VCAT 221.  The solicitor described the complainant as a fantasist when she said that he asked her for sex in a most unwelcome manner, except to the extent that her allegations were corroborated by a video he himself had surreptitiously made during which he asked her most vulgarly for sex 78 times in about an hour and which he tendered to prove that she was coming onto him. Weird. But that was all just to grab your attention.

Now for the saucy bit: the President rehearsed the authorities on the Briginshaw application of the civil standard of proof, reproduced in this post.  But it is also interesting in that the President expressly invoked the VCAT Act power to apply rules of evidence, and did so because serious allegations were being made.  In a case about a solicitor, and for the protection of the solicitor.  I don’t think I have seen that power expressly invoked in a VCAT decision before, except occasionally to reject the tender of particularly unreliable hearsay. Here’s hoping that it might be the start of the development of VCAT’s own de facto law of evidence, because a forum without any law of evidence is a strange beast, and a forum which has an unspoken de facto evidence regime undermines equality of access to it, creating an advantage in favour of those in the know, who will tend to be experienced users and lawyers. Continue reading “Suburban solicitor tenders video of himself asking employee for sex 78 times in his own sexual harrassment case”

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Palm tree justice banned at VCAT

Justice Sifris banned palm tree justice in VCAT in a mercifully concise judgment: Christ Church Grammar School v Bosnich [2010] VSC 476, overturning President Morris’s decision in Law v MCI Technologies Pty Ltd [2006] VCAT 415, which was against the tide of NSW authorities.  Peter Riordan SC led Will Alstergren for the School. As the keener readers of this blog would be well aware, VCAT has a general jurisdiction, unlimited as to amount, in relation to disputes between the suppliers and recipients of goods and services, broadly defined.  In a sub-set of such disputes (consumer disputes and trader-trader disputes), it is empowered by s. 109(1) of the Fair Trading Act, 1999 to ‘make any order it considers fair’. The definition of ‘consumer disputes’ and ‘trader-trader disputes’ is at the end of the post. Oversimplified, however, they are disputes in relation to the supply of goods or services (a) for personal, household or domestic consumption, or (b) for a price of $10,000 or less. Continue reading “Palm tree justice banned at VCAT”

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Is this the Legal Practice List’s biggest case?

Virgtel Ltd v Gadens Lawyers [2010] VCAT 1584 might be VCAT’s Legal Practice List’s highest value case.  Not all that long ago in the scheme of things, I remember learning that VCAT had certain jurisdictions which were unlimited, and realising that — shock! — it might hear cases which the Magistrates’ Court could not hear.  Well, this case is an application pursuant to s. 103 of the Legal Practice Act, 1996 to set aside a costs agreement pursuant to which bills totalling $2.3 million were charged.  That explains why two QCs faced off on a pre-trial application.

The respondents applied for summary dismissal under s. 75 of the VCAT Act, but advised the day before the hearing that they would withdraw it.  The applicants sought costs of the application.  Senior Member Howell granted that application, on a solicitor-client basis.  That was because the application was misconceived.  Its thesis was that there was no point making an order setting aside the costs agreement because all but one of the bills was out of time for taxation anyway.  But it did not follow from the unavailability of taxation that the fees billed by the respondents could not be adjusted.  As Senior Member Howell said: Continue reading “Is this the Legal Practice List’s biggest case?”

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High Court says something about VCAT

In Osland v Secretary to the Department of Justice [2010] HCA 24, Chief Justice French, and Justices Gummow and Bell said:

‘The jurisdiction and powers of the Court of Appeal

17.  It is necessary to refer to the nature of the jurisdiction and powers of the Court of Appeal in an appeal from an order of the Tribunal. That jurisdiction and those powers continued to define the functions of the Court on the remitter of the appeal for further hearing. The relevant jurisdiction and powers are set out in s 148 of the VCAT Act, which provides, inter alia: Continue reading “High Court says something about VCAT”

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More on when lawyers engage in ‘trade and commerce’

In Seachange Management Pty Ltd v Madgwicks, [2010] VCAT 599, Senior Member Vassie decided that solicitors who allegedly falsely wrote to the Registrar of Titles advising that proceedings had been instituted to substantiate the claim of their client, a caveator, did not engage in trade and commerce even if the conduct was misleading and deceptive: Continue reading “More on when lawyers engage in ‘trade and commerce’”

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Can you serve VCAT proceedings on defendants outside Victoria?

In Gluyas v Google Inc [2010] VCAT 540, an Australian blogger sued Google in VCAT.  Google Inc is an American company.  VCAT struck out the suit on another basis, but indicated that there are no provisions for the service of VCAT applications on persons outside Australia, unlike in the Supreme Court, so that VCAT probably had no jurisdiction unless Google Inc consented to it exercising jurisdiction, which Google did not do.  Some tribunal proceedings with a link to Victoria may be served in other states and territories under Part 4 of the Service and Execution of Process Act, 1992.

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Extra-territoriality of Victorian statutes

In Gluyas v Google Inc [2010] VCAT 540, an Australian blogger took Google to VCAT to complain about the content of a blog published in America on Google’s blogger platform.  The blog criticised people with the blogger’s disability. The blogger sought relief under the Equal Opportunity Act, 1995 (Vic.), claiming that Google had authorised or assisted the American blogger to discriminate against the class of persons suffering his disability, and against him personally.  The Act does prohibit such assistance and authorisation, but  Google applied to strike out the suit on the basis that the alleged conduct occurred in America, and the Equal Opportunity Act did not regulate the conduct of Americans in America, or in legal language, the Act did not have extra-territorial operation.  Deputy President McNamara agreed.  There is nothing startling about this application of well-worn principles, but this blog sometimes just restates things which people like me need reminding of from time to time. Continue reading “Extra-territoriality of Victorian statutes”

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VCAT decision overturned for appearance of bias

Two men litigated a case over $10,000 in VCAT’s Civil List before a sessional member. As per the norm in that list, they were unrepresented. That Civil List is a place a world away from the proceedings you read about in the law reports.  I must say I like the idea of an accessible tribunal where people can get the catharsis of a judicial determination, without the expenditure on legal fees which is impossible for most people. And I like to think that there is a class of case where the quality of legal representation which can be obtained for a price which is proportionate to the amount at stake is in fact such that the diligent and ordinarily intelligent litigant who is all over his or her case, and may have sought out some legal advice along the way, is likely to do better himself than with the kind of representation he can afford.  It is a tough job being a member down there.  All sorts of legal problems get thrown at them and they are expected to churn through them in a fraction of the time a Court would take, and give ex tempore decisions.  Judges in superior courts have an easier time because counsel present relatively recognisable legal theories of disputes in a relatively predictable way.  Arguments devised by people who do not think within the same structures that experienced lawyers do throw up odd ideas the appraisal of which is difficult for the very reason that they are odd.

But it is important that the Civil List actually apply the law, even if it dispenses with its more technical excrescences, and review by superior courts from time to time (incredibly rare, if you look at the statistics) remains important.  Justice Habersberger considered that justice in one case had got so rough that the appellant deserved another go, and set aside VCAT’s decision: Leon Holdings Pty Ltd v O’Donnell [2009] VSC 430.  The rules of evidence may not bind the tribunal, his Honour said, but whatever rules are adopted in relation to evidence, they must be applied even handedly.  When the member allowed one man to tender hearsay evidence without demur but then refused to hear the other man’s hearsay evidence despite the absence of any objection by his opponent, she created a perception of bias: Continue reading “VCAT decision overturned for appearance of bias”

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Procedure in VCAT merits reviews

Update, 24 October 2017: MH6 was affirmed on appeal: [2009] VSCA 184.  See also in relation to penalties privilege in the context of administrative law reviews in the disciplinary realm the thorough judgment of Kenny J in Frugtniet v Migration Agents Registration Authority [2017] FCA 537, which is itself under appeal and could easily go to the High Court.

Original post: In recent times, I have not found legal regulators forthcoming in advising in advance the evidence to be tendered against a practitioner, and have generally sought directions for disclosure where it could not be sorted out between the parties’ representatives, sometimes attracting ire in the process.  I have had disagreements, too, about who should go first in a merits review where one of the outcomes of the review involves a penalty (e.g. a fine, or suspension from practice).  Usually, the plaintiff or applicant or appellant goes first, but in a review of a decision by VCAT standing in the shoes of the decision maker, it kind of makes sense for the decision maker to justify the decision first, especially if the decision is for example that the applicant is no longer a fit and proper person to practise law.  I did get an order in a review of a decision to cancel without notice my client’s practising certificate that the Law Institute should prove why he was not a fit and proper person before I had to respond.  Now, such orders should be routine.

MH6 v Mental Health Review Board [2008] VSC 345, an appeal from a VCAT decision,  tackles these issues head on, filling out some of the implications of the Court’s earlier decision in Towie’s Case confirming that professional discipline proceedings which may result in fines or interference with an entitlement to practise are proceedings for a penalty.  The Court declined in the circumstances of this case to find that there had been a denial of procedural fairness such as to require reversal of VCAT’s decision to make the applicant go first (the main circumstances were the absence of any objection to the applicant going first by his trial counsel, and the fact that the applicant had forewarning of the Mental Health Review Board’s evidence in the form of witness statements served in advance).  But I do not think you will find VCAT in merits reviews of this kind making the applicant (i.e. the subject of the administrative decision) go first in a merits review hearing again.  For the Court constituted by Justice of Appeal Redlich and Acting Justice of Appeal Hargreave said:

’26 The submission of the respondent cannot be sustained. It focussed on the purpose of the order rather than its effect. It is well understood that orders which may be non-punitive in their purpose can have a grave impact upon the rights or interests of an individual.[19] The consequences of an involuntary treatment order include the continued, indefinite, and involuntary detention of the applicant. An involuntary treatment order affects interests in a manner that enlivens those aspects of the hearing rule articulated in Towie. Procedural fairness would require that an involuntary detainee be given an opportunity to hear and respond to evidence that provides the jurisdictional basis for continued confinement. In such cases the ‘usual procedure for merits review’ at VCAT that ‘the applicant goes first’ will not normally be appropriate. Nor will such procedure ordinarily be appropriate at a hearing conducted by the Board. [emphasis added] Continue reading “Procedure in VCAT merits reviews”

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When will a company be permitted to litigate without legal representation?

Update, 24 February 2010: An appeal failed: [2010] VSCA 17.

Original post: Rule 1.17(1) of the Supreme Court Rules (the County Court’s and Magistrates’ Court’s rules are to similar effect) reads as follows:

“Except where otherwise provided by or under any Act or these Rules, a corporation, whether or not a party, shall not take any step in a proceeding save by a solicitor.”

In Worldwide Enterprises Pty Ltd v Silberman [2009] VSC 165, Justice Forrest considered an application by a solicitor for a stay of his unrepresented former client’s case against him unless the former client, which was a company, appointed lawyers to act for it.  The proceeding was an appeal to the Supreme Court from a decision of VCAT’s Legal Practice List, where Mr Goodman had represented himself (see [2008] VCAT 683, [2008] VCAT 836, and [2008] VCAT 1345). The application succeeded. On the law, his Honour said: Continue reading “When will a company be permitted to litigate without legal representation?”

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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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Costs of complex litigation in presumptively costs-free consumer tribunals

A Queensland District Court judgment (Saunders v Paragon Property Investments Pty Ltd [2009] QDC 19) about the costs provision in a Queensland consumer tribunal has alerted me to a passage from a decision of the Queensland Court of Appeal (Tamawood Limited v Paans [2005] 2 Qd R 101) which might be useful in arguing for costs if you are successful in a complex VCAT proceeding. It runs contrary to the tenor of certain decisions of VCAT’s President Morris noted in Pizer’s Annotated VCAT Act, (3rd ed.) at points 6 and 7 on pp 426-7 in para [4039.1D], e.g. Buttigieg v Melton SC [2006] VCAT 1058, Mornington Peninsula SC v Fox, unreported, 24 October 2003.

Also, Ballymont Pty Ltd v Ipswich City Council [2002] QCA 454 at [19] to [20] is said to be authority for the proposition that the costs provisions of the consumer tribunal should not be thought to infect the costs provisions of an appellate forum. That is, the costs of an appeal from a consumer tribunal will be dealt with consistently with the costs of appeals generally. The useful passage from Tamawood, and a comparison between the Queensland costs provisions and VCAT’s are set out below. Continue reading “Costs of complex litigation in presumptively costs-free consumer tribunals”

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The practising certificate suspension challenge that went wrong

Update, 8 November 2008: When I wrote this post, the Court of Appeal had authoritatively answered another of the questions posed below, about the penalty privileges, but I had not yet read the case, CT v Medical Practitioners Board [2008] VSCA 157.  Now I have, and I have posted here about it.

Original post: WPE v Law Institute of Victoria [2008] VCAT 1277 shows that you’ve got to be careful when challenging a decision to cancel or suspend your practising certificate because if the Law Institute wants to sic you, they can seek to establish misconduct against you in the merits review proceedings, and if they get up, VCAT has the same suite of powers as it would following a disciplinary prosecution: s. 2.4.37(3) Legal Profession Act, 2004.

Sometimes, rather than engage in litigation, it is better to play the game, take an early long service leave, help some orphans, have a moment on the road to Damascus, and send in a well thought out application for a new certificate at a well judged time in the future. Saves a lot of costs and maybe a few orphans,  lets you have a holiday at the same time, and means there’s never a hearing into the conduct which gave rise to the suspension and/or cancellation. Spend half the money you would have spent on lawyers on a public relations consultant and a lobbyist and you’re doing even better. Other times it’s better to avoid merits review — the obvious remedy specifically provided for in the Legal Profession Act, 2004 — and go for judicial review proper (a course which we now know since Zarah G-W’s cases is kosher; c.f. Perkins v Victorian Bar Inc [2007] VSC 70), especially where the decision making process leading up to the suspension or cancellation is dubious.  But sometimes, if a disciplinary charge seems imminent, the question of costs referred to below might recommend getting in early with an application for review of a practising certificate decision which might prevent the laying of disciplinary proceedings proper and lead to adjudication of the issues in a more costs friendly regime.  There is much to weigh up in choosing one’s approach when challenging a practising certificate decision.

How these hybrid administrative law and quasi-criminal proceedings are supposed to pan out has been a bit of a mystery to date.  They are a new concept.  Maybe they are unique — who knows?  Anyway, there was certainly no analogue under the Legal Practice Act, 1996.  Who bears the burden of proof?  Who should go first?  Does the privilege against penalties protect the lawyer?  Is it an inquisitorial or adversarial proceeding?  Should the matters the Law Institute will argue should found disciplinary findings be the subject of properly particularised charges?  What about costs?  Can the Law Institute apply for disciplinary findings at all, or is it a jurisdiction which must be invoked by VCAT?  Judge Ross provided answers to a couple of these questions only in this case. Continue reading “The practising certificate suspension challenge that went wrong”

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Latest word on burden of proof in professional discipline ‘prosecutions’

In this post, I just reproduce what Deputy President Dwyer said recently about the burden of proof, right to silence, and inferences which may be drawn from the fact of the exercise by a solicitor of the right to silence. He said it in the context of a hard-fought hearing into the conduct of Kylie’s one-time lawyer, Michael Brereton, reported on in the previous post. Interestingly, the Tribunal was not critical of the solicitor’s decision not to give evidence, but asserted that it was free to draw adverse inferences against the solicitor under the rule in Jones v Dunkel, and did so with gusto, drawing support from Woods v Legal Ombudsman [2004] VSCA 247, and Golem v Transport Accident Commission [No2] [2002] VCAT 736.)

What Mr Dwyer said was: Continue reading “Latest word on burden of proof in professional discipline ‘prosecutions’”

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Is interest a form of relief VCAT can grant?

In a long-wnded way, I tentatively suggest that, so long as the applicant has the sense to invoke s. 108 of the Fair Trading Act, 1999, then penalty interest is available under the Supreme Court Act, 1986, just like in the Supreme Court, so long as the dispute is a consumer-trader dispute. That is, a dispute between a purchaser or potential purchaser and a supplier or potential supplier of goods and services, broadly defined. There are some causes of action which come with specific interest provisions too, like the one attached to costs disputes under the Legal Profession Act, 2004.

Continue reading “Is interest a form of relief VCAT can grant?”