According to the Victorian Bar, the Supreme Court’s Justice Ross has been appointed President of VCAT. That does not mean he is no longer a Supreme Court judge; he will be both. Justice Morris, two Presidents ago, used to hear cases in both jurisdictions. It did not occur to me when his Honour leapt from VCAT to the Supreme Court recently (see my post at the time) that this might be in the wind; Justice Kevin Bell was appointed President only in March 2008, but it seems that was always a 2 year term. It will be interesting to see whether Justice Ross will see much business in the Legal Practice List, to which he is accustomed.
Judge Iain Ross, who was the head honcho of VCAT’s Legal Practice List, and the Tribunal’s Vice-President, has been appointed to the Supreme Court, presumably taking up the spot left behind by a good and honourable man and quiet champion of human rights, Justice David Harper, who has been appointed to the Court of Appeal. People from the generation before me typically seem to confuse him with Judge Les Ross, also a County Court judge, who retired in 2005. Justice Ross was appointed a Vice-President of the Australian Industrial Relations Commission at the age of 35 in 1994, and was there until he went off to Corrs briefly in early 2006. His Honour has been a County Court judge since 2007, and remained so as VCAT’s Vice-President. He was in charge of alternative dispute resolution at VCAT, and once referred to mediation my client’s application for orders compelling the Legal Services Commissioner to provide further and better particulars of a professional misconduct charge. Austlii records numerous careful and thorough decisions of his Honour in Legal Practice List matters, many of which I have blogged.
I did not even know that his Honour had commenced hearing cases in his new role, but The Age‘s front page today records that he is hearing an appeal from VCAT in the case about the taxi driver who, long ago, stabbed his wife to death under the grip of a psychosis from which he has now recovered. The case was XJF v Director of Public Transport  VCAT 2303, a decision of Deputy-President Macnamara who seems to have moved into Justice Ross’s old spot as head honcho of the Legal Practice List. I posted about the decision here. Attorney-General Hulls’s press release says:
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  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”
Update, 24 October 2017: MH6 was affirmed on appeal:  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  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  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. 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”
It costs about $290 to file an application to set aside a costs agreement under s. 3.4.32 of the Legal Profession Act, 2004 in VCAT. It is not a step lightly to be taken. Moreso than much of what goes on in VCAT, such applications are treated like litigation in a court. Costs will be awarded against the unsuccessful party much more often than in other kinds of proceedings in VCAT; indeed, it is more or less true that costs follow the event, that is, the loser generally has to pay the winner’s costs calculated according to an appropriate County Court scale. See the page on VCAT’s website about these kinds of applications, which includes the correct form for initiating these kinds of proceedings.
Following filing, VCAT generally sets down a directions hearing of its own motion. There is a standard form of orders which is often made. They are reproduced below. To avoid a directions hearing, applicants would be well-advised to include the details (‘particulars’ in legal lingo) the usual orders require in the application itself. The applicant should then ask the respondent whether it will consent to doing what the usual orders generally require within, say, 2 weeks. Alternatively, if that was not done at the outset, the parties might consider submitting the orders they would each be happy with (‘a minute of consent orders’ in legal lingo) in the terms of the usual orders to VCAT in advance, saving the need for a trip to VCAT if the decision maker who would otherwise preside at the directions hearing is content to make the orders on the papers. Of course, a directions hearing may be necessary anyway. Directions made at directions hearings are not necessarily limited to those found in the usual orders. Nor are the usual orders always made.
The usual orders are:
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  VCAT 2077, a decision of Judge Ross’s tribunal, and XJF v Director of Public Transport  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  VSCA 264. The appeal ultimately failed:  VSCA 109.
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.
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  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  VCAT 683,  VCAT 836, and  VCAT 1345). The application succeeded. On the law, his Honour said: Continue reading “When will a company be permitted to litigate without legal representation?”
Qantas Airways Limited v Gama  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 . 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”
When you are preparing witnesses for trial — expert and lay witnesses, party and non-party witnesses alike — you should bear in mind that the other side’s barrister can call for all documents which the witness has used to refresh their memory, whether or not they are privileged. Even the client’s proof of evidence, a privileged document drawn up by his or her solicitor, and in some ways the centrepiece of the privileged file, may be called for, if the client used it in preparation for trial. Even — GET THIS! — a barrister’s opinion in the matter (as in Grundy v Lewis  FCA 1537), if the client witness has read over it by way of preparation for trial. The fact of the existence of a proof of evidence is not, of course, enough for it to be called for (Justice Refshauge said ‘If [the witness] had read it to check it was accurate, to see that it was complete, to add additional material of instruction to her lawyer or to excise inaccuracies or irrelevancies, that would not justify its production following a call.’). It must have been used by the witness to refresh his or her memory for the purposes of giving evidence in court (or of being cross-examined, in the case of evidence given on affidavit). All this is the clear message from Spalding v Radio Canberra Pty Ltd  ACTSC 26, a defamation case. Radio Canberra’s barrister was cross-examining the plaintiff. It went like this: Continue reading “How the other side’s barrister can see your witness’s proof of evidence”
A Queensland District Court judgment (Saunders v Paragon Property Investments Pty Ltd  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  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  VCAT 1058, Mornington Peninsula SC v Fox, unreported, 24 October 2003.
Also, Ballymont Pty Ltd v Ipswich City Council  QCA 454 at  to  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”
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.
In Walsh v PJCC&A Pty  VCAT 962, beneficiaries of an estate were critical of the testator’s lawyers before death. They became his executors after his death, and appointed the firm they worked for as their solicitors. The beneficiaries sued the firm, and its solicitor-executors for unconscionable conduct and misleading or deceptive conduct. Their beef was the level of fees charged by the firm in the context of the executors having left all of the work of the administration of the estate to the firm as their solicitors, and yet having scooped up the 3% executors commission provided for in the will. Judge Harbison summarily dismissed the whole case principally on the basis that when they engage in professional work, lawyers do not engage in trade or commerce, as required by both causes of action under the Fair Trading Act, 1999. The trade or commerce requirement was a jurisdictional issue, she said, for the applicants to establish at the outset of the case, not something for the respondents to establish the absence of. It was permissible, and quite possible, to determine the question by reference to the particulars of dispute so long as they were articulated sufficiently.
Interestingly, despite numerous strike out applications, a professional negligence claim against solicitors pleaded as a misleading and deceptive conduct case has survived in Western Australia, though it is not clear that anyone has taken the point that lawyers do not engage in trade or commerce in that case: Alpine Holdings Pty Ltd v Feinauer  WASCA 85.
Slobodan Catovic did not want to pay his solicitor’s bill. He misconceivedly invoked the Legal Profession Act, 2004 provision which allows clients to apply to set aside costs agreements, but that is not what he wanted to do. Senior Member Howell satisfied himself that Mr Catovic had intended to bring an application under the Fair Trading Act, 1999, and ordered that the application be treated as a small claim under that Act. He even told the Registrar to refund Mr Catovic the difference between the fee on an application to set aside a costs agreement and the paltry fee payable on the institution of a small claim under the Fair Trading Act, 1999. See Catovic v H Solicitors  VCAT 840. On the propriety of the cross-fertilisation of VCAT’s jurisdictions, see also this post.
It is well established in VCAT that when doctors and lawyers engage in professional activities in the course of their retainers, e.g. by giving advice, interviewing witnesses, and representing clients, they do not engage in trade or commerce: see for example Stagliano v Duke  VCAT 1070, which I posted about here. Most Fair Trading Act, 1999 causes of action are available only in respect of conduct in trade or commerce. But is the workaround its consumer and trader dispute jurisdiction? The authorities are at odds with one another. Continue reading “Can lawyers sue and be sued under the Fair Trading Act, 1999?”
I was drinking beer at The Peacock the other afternoon, and a VCAT member was muttering about the Supreme Court overturning VCAT decisions on the basis that applications for adjournment were not granted when they could have been cured by an order for costs. The suggestion was that the Court may have overlooked the fact that no costs are awardable in certain classes of cases. The other point was that in many lists, like the civil list, members are expected to churn through a case an hour, without the assistance of counsel on which decision makers generally rely on so heavily.
My conversation came back to me while reading HL v Fahey  VCAT 2400, a case about Ms Fahey’s dissatisfaction with a bill for $1,199. Ms Fahey successfully sought 2 adjournments. The first time, she had to go to Norway for a qualifying competition for the Olympics. Her game is dressage. The second time, she simply wrote in sick. The third time, she attached a sick note from a doctor. VCAT told her that administrative adjournments were over and told her to come to the hearing and make her application there, and to be ready to proceed if she failed. She did not turn up, and so an order was made against her. She sought a review, akin to an application to set aside a default judgment. She sent a fax to VCAT at 9.36 a.m. before the 10 a.m. hearing in which she said she was ‘unable to attend today’s review hearing due to extreme illness’, and concluded ‘I will contact you again in the future to arrange a new review date.’ That attempt to direct the Tribunal to adjourn failed, and Senior Member Howell heard the case in her absence, saying: Continue reading “VCAT runs out of patience with serial adjourner”
I had heard the rumour a fair while ago from the most impeccable sources in VCAT and the Supreme Court that the Supreme Court’s Justice Bell was hot tip to take over from Judge Bowman as VCAT’s head. Now it’s confirmed. Frankly, though it would not be every lawyer’s cup of tea, it’s a great job, and a most important appointment. Continue reading “Justice Kevin Bell appointed VCAT’s President”
Happy new year, readers. 2007 was a big one for me, and it seems that lots of interesting things happened. So I made a list.
The Bar: My senior mentor, Peter Riordan SC, was elected Chairman of the Bar Council. Peter Hayes QC died, and the Ethics Committee took Peter Faris to task for commenting to excess on drugs in the profession. Mr Faris joined the Law Institute in lieu of the Bar. Former solicitor-advocate Andrew Fraser got out of jail and published his memoirs, Court in the Middle. Julian Burnside wrote an excellent book. Good people joined the Bar, including Tony Horan, formerly a partner of Phillips Fox, and Lisa Nichols, formerly a partner of Slater & Gordon Ltd, suggesting that it is a healthy institution. Mark Dreyfus QC was elected into Federal Parliament, Jeff Sher QC retired, and Peter Cawthorn, Dr Ian Freckleton, and Kerri Judd, all leaders of the professional negligence and/or discipline bar, took silk. Ross Ray QC assumed the helm at the Law Council of Australia.
The Bench: Justice Kiefel was appointed to the High Court from the Feds, the Howard Government’s 6th appointment after Justices Hayne, Callinan, Gleeson, Heydon and Crennan. She was the trial judge in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, the case which is commonly understood to mean that you can always amend your pleadings at any time, contrary to her Honour’s view that sometimes, enough’s enough. Justice Callinan, the protagonist in Flower & Hart v White Industries (Qld) Pty Ltd (1999) 163 ALR 744, one of the key legal ethics cases of recent times, retired after nine and a half years. Lex Lasry was appointed to the Supreme Court. He was one of the blokes who campaigned against the execution of Van Nguyen, and was a legal observer at David Hicks’s show trial. Also appointed were Jack Forrest, Ross Robson, Paul Coghlan (ex-director of the Office of Public Prosecutions), and Tony Pagone (a tax lawyer with a keen interest in human rights who was reappointed after a tenure of 9 months in 2001 and 2002). The Court of Appeal had added to its bench Murray Kellam and Julie Dodds-Streeton. So 1 in 5 Supreme Court judges was appointed this year. Justice Gillard retired after ruling that Dr Abbie Lee was not defamed in the Herald-Sun‘s ‘Medibonk’ articles which called her a madam and a fraud. Justices of Appeal Callaway and Eames retired too.
Michelle Gordon, to whom the High Court’s Justice Hayne is married, was the only Melbourne appointment to the Federal Court. Former Federal Court judge Marcus Einfeld QC was committed to stand trial for perjury after pleading not guilty.
Blogs: Melbourne lawyers Peter Faris, Leagle Eagle, Dr Mirko Bagaric, and Nicky Greenberg all wrote interesting blogs, mostly not about the law. Jamie Wodetzki, also a Melbourne lawyer, published the excellent Breakfast Blog. Club Troppo‘s ‘Missing Link‘ rounded up the best posts from Australian blogs twice a week or so: well worth subscribing to.
Books: Monash’s Professor Adrian Evans and Melbourne’s Christine Parker put out a book Inside Lawyers’ Ethics. Walmsley, Abadee and Zipser did great with the second edition of Professional Liability in Australia. University of Woollongong’s Ainslee Lamb and John Littrich put out Lawyers in Australia. Jason Pizer published the 3rd edition of his Annotated VCAT Act. The 9th edition of Keith Fletcher’s The Law of Partnership in Australia hit the stores. Former actress, barrister and ABC Radio National ‘Law Report’ compere Susannah Lobez published Gangland Australia. Leigh Sales published a book about David Hicks, Detainee 002. J.K. Rowling‘s Harry Potter and the Deathly Hallows sold over 8 million copies in the first 24 hours of its release. Black Inc.’s The Monthly continued, unlike most in its genre, to publish, suggesting this might actually be the new quality news magazine which sticks around. Helps when your publisher, Morry Schwartz, is a property developer I suppose. (A bit off-topic, but Bali got Lawyers’ Lawyered this year, so: Black Inc. also published Under the Volcano; The Story of Bali. Former English property lawyer Jonathan Copeland published another good book about Bali — a rare thing — Secrets of Bali.)
Crime, and alleged crime: Christopher Hudson allegedly shot Norton Gledhill solicitor Brendan Keilar dead outside the Rialto where I had been working until a couple of weeks before. A martial arts enthusiast is suspected of killing Pumpkin’s mum, and cast Pumpkin adrift at Spencer St. Carl Williams said that in an ideal world, he wouldn’t have executed Jason Moran in front of his kids, and Justice Betty King responded to point out that in an ideal world he wouldn’t have executed him at all. In an ideal world wife Roberta probably wouldn’t have expressed disappointment that Carl would be behind glass, making spitting in his face problematic, and Jason probably wouldn’t have hired two hit men to gun Carl down at his daughter Dhakota’s christening, giving Carl the idea of the execution with kids in the first place. The Herald Sun must have been spewing about the 35 year fully catered luxury State holiday Justice King granted him despite his insolence. Tony Mokbel was found in Greece. Bad wig. Peter Dupas was convicted of another murder as a result of confessions made to Andrew Fraser. Paris Hilton went to jail, prompting this peculiar peaen from Dr Bagaric. Continue reading “2007 a review: law and war”
Updated, 4 January 2008: See the underlined additions below (with thanks for the references to Jason Pizer’s book at p. 246).
Original post: Now two unrepresented folk have managed to convince VCAT’s Legal Practice List’s Member Butcher in a Fair Trading Act, 1999 claim that yet another solicitor has been acting unconscionably towards his clients in relation to fees. The decision in Alexander v HWL  VCAT 2297 (and two earlier decisions posted about here and here and here) suggests two separate schisms between VCAT’s decision makers:
- The first between those who hold that solicitors engage in trade or commerce when they provide professional services to clients (such as Member Butcher) and those who hold that they do not (such as Senior Member Howell and Deputy President Steel); and
- Secondly, between those who emphasise that only in cases of highly unethical behaviour should a finding of unconscionability be made (such as Senior Member Vassie) and those who presumably consider that test to be a little on the stringent side (such as Member Butcher). Continue reading “Sudden eruption of unconscionability amongst solicitors further documented”
There’s a seminar coming up in exactly a week’s time at the Law Institute at which Alan Hebb is going to speak on disputes in VCAT’s Legal Practice List. He’s a good bloke and has more experience there than anyone else. He was very often briefed as Counsel Assisting the Tribunal, both at the Legal Profession Tribunal and at VCAT. Speaking generally, ‘Counsel Assisting’ are generally cast in the role of prosecutors. It is usually an office associated with disciplinary prosecutions and royal commissions. Though the old Tribunal, and now VCAT have important disciplinary jurisdictions, this was not Alan Hebb’s role.
Until very recently, when the practice was — so I hear — abandoned, Counsel Assisting were briefed by Legal Practitioners Assisting the old Tribunal, and then by Legal Practitioners Assisting VCAT’s Legal Practice List, to take otherwise unrepresented claimants through their evidence and cross-examine lawyers in professional negligence claims under the Legal Practice Act, 1996 and then the Legal Profession Act, 2004. They did not act for the claimants though, and were proscribed by the terms of their brief from giving legal advice. I hear too that the Legal Practitioners Assisting the Legal Practice List are no longer employed in that capacity.
One might think these two developments to be a terrible thing which has quietly slipped under the radar. In the case of the office of Counsel Assisting, I am not so sure, not because of any deficiency in those who held the office, who did a very diligent job fairly in often difficult circumstances, but because of what I perceive, at least in some cases, to be a structural difficulty with the whole concept of ‘counsel assisting’ a civil tribunal hearing a private civil dispute. I think it comes down to this: if the aim was to even up the playing field between unrepresented claimants and solicitors, perhaps what needs to happen is to simply pay for a barrister to appear for the claimant. That may be politically impossible, and would amount to an ad hoc form of legal aid. Here’s why I think that, based on years of experience. Continue reading “Legal Practice List guru to give VCAT seminar”