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Interrogatories

Interrogatories are powerful.  They are also out of fashion, partly because no party interrogated ever answers them properly, occasioning a post-discovery hiatus when a trial might otherwise be set down.  In the Supreme Court, you get 42 days to answer. Then compelling proper answers takes weeks more, and suddenly a great deal of time has been taken up.  If you commit to interrogating, you had better commit to an application to compel answers.

It’s important, as Associate Justice Evans and Justice Byrne reminded my client recently, not to ask too many questions.  Unjustifiable prolixity is a form of oppression which grounds proper objection to answering. When preparing for the hearing at which my client was reminded of this important precept, I read too many 19th century cases about interrogatories cited by Williams.  It’s not often you find a recent Court of Appeal decision about interrogatories.  So I thought I would note LS v Rolan Semaarn Salon Pty Ltd [2009] VSCA 201.  The plaintiff sought damages for psychiatric harm she said was the result of the stressful circumstances of her employment.  The employer said drugs consumed at night clubs were the problem.  The employer asked the plaintiff whether she had used marijuana or ice at the relevant time.  Associate Justice Gardiner, Justice Kyrou, and Acting Justice of Appeal Beach with whom Justice of Appeal Mandie agreed all held that the employee had to answer the interrogatories.  Of course they were not saying she had to elect between yes and no.  Taking the privilege against self-incrimination remains an option.

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Self-incrimination certificates

Latest word, 4 February 2018: Ying v Song approved by Full Federal Court: Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4.

Further update, 30 August 2017: Elliott J refused an application for a s. 128 certificate made by a plaintiff who sought it in respect of certain paragraphs of a witness statement he had voluntarily filed: De Lutis v De Lutis [2017] VSC 505.  His Honour considered the Court of Appeal’s decision in Clayton Utz (a firm) v Dale (2015) 47 VR 48 which in turn had considered the NSWCA’s decision in Song v Ying (2010) 79 NSWLR 442, both cases which post-date what is written below.

Update, 4 December 2009: A single judge of the NSW Supreme Court, Justice Julie Ward (NSW’s equivalent of Victoria’s Justice Kyrou, having been appointed from the ranks of solicitors last year), declined to follow the decision discussed below, Sheikholeslami v Tolcher [2009] NSWSC 920.  Twelve thousand words is a pretty good effort for an evidentiary ruling.  In Ying v Song [2009] NSWC 1344, her Honour concluded:

‘I am unable to conclude that, on its proper construction, s 128 is enlivened in the present circumstances. Someone who chooses to adduce incriminating evidence (albeit because he or she feels forced to make such a disclosure to defend a claim made against him or her) is not in any real sense “unwilling” or averse to doing so. At common law such a person would not have been able to invoke the privilege against self-incrimination unless under a legal compulsion to give such evidence and I do not read s 128(1) as introducing a right to claim privilege which otherwise would not have existed.’

See also Einstein J in Meiko Australia Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354 at [188]ff.  This passage from Ying v Song also seems worthy of squirrelling away for future reference:

‘There might be an argument that, even if a certificate were given to protect Mr Song from the consequences of giving evidence by reading his affidavits in the present case, that certificate would not protect him from the consequences of having prepared and disseminated those documents in the first place (see generally, Brebner v Perry [1961] SASR 177 per Mayo J and BTR Engineering (Australia) (Formerly Borg-Warner Australia Limited) v Patterson (1990) 20 NSWLR 724 at 729 per Giles J). There might also be an argument that, having prepared and sworn documents (ie the affidavits), which have been filed and served, containing admissions which could be tendered against him in any criminal proceedings, Mr Song has waived, for the purposes of these proceedings, any privilege in relation to matters attested to in those affidavits or would be placed in no greater jeopardy of prosecution by reading those affidavits in the present proceedings and swearing (for a second time) to their accuracy (BTR Engineering at 730 per Giles J; Microsoft Corp at 381 [41] per Lindgren J; R v Bikic at [15] per Giles JA). However, as these arguments were not raised in argument before me and as I am otherwise satisfied that a certificate cannot be given in the present circumstance, it is not necessary for me to decide them.’

Original post: Section 128(7) of the Evidence Act, 1995 (Cth.) says:

‘In any proceeding in an Australian court: (a) evidence provided by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person’.

A pretty useful certificate.  Victorian practitioners in the Federal Court, Federal Magistrates’ Court, and Family Court should already be familiar with the section.  Victoria’s Evidence Act, 2008, which commences on 1 January 2010 (thankfully after I have spent a week doing Advanced Evidence at Melbourne University with Professor Palmer), has a similar s. 128.

Pursuant to s. 132, courts have an obligation to warn parties and witnesses who they think might be in need of a certificate of their availability.

Typically, these certificates are granted when a witness objects to giving evidence, or answering certain questions, on the basis that to do so would be liable to incriminate them, or expose them to a civil penalty such as a fine or the suspension of a practising certificate.  Sub-section (1) says:

‘This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness (a) has committed an offence …’.

A recent case, Sheikholeslami v Tolcher [2009] NSWSC 920, makes clear that on the present state of the law, a party or witness may apply for such a certificate even where what would be liable to incriminate him or her is evidence which he or she wishes to adduce in favour of their own case — the plaintiff’s affidavit evidence, a counterclaimant’s witness’s answers in re-examination.  Justice Rein doubted the correctness of this interpretation of ‘objects to giving evidence’, but said by reference to Ferrall v Blyton [2000] FCA 1442; (2000) 27 Fam LR 178, Ollis v Melissari [2005] NSWSC 1016, and Chao v Chao [2008] NSWSC 584 that he was more or less bound to accept it.

Just how useful the section might be is exemplified by the facts and outcome of Ferrall v Blyton.  As described by Justice Rein in Sheikholeslami at [8]: Continue reading “Self-incrimination certificates”

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Admission of allegations relevant in distinguishing between misconduct and unsatisfactory conduct

In Legal Services Commissioner v PT [2009] VCAT 1603, Senior Member Preuss decided that a failure to respond to a demand by the Commissioner for information in relation to a disciplinary complaint was unsatisfactory professional conduct rather than the more serious professional conduct, for several reasons including that ‘he [the respondent solicitor] admitted the factual circumstances alleged and he did not oppose the orders which I sought to make’.  That is not a factor which has often expressly been taken into account in making the distinction, as far as I am aware.

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Doctors, psychologists, sex and former patients

In Re a Psychologist [2009] TASSC 70, the Supreme Court of Tasmania quashed a decision of the Psychologists Registration Board of Tasmania to suspend a psychologist for 6 months for entering into a sexual relationship with a former patient fewer than 2 years after the end of the therapeutic relationship.  In fact he married her.  A couple of newspaper articles are here and here.

The Supreme Court quashed the decision because the Board switched from considering these allegations as a breach of a code of conduct to considering them as an allegation of professional misconduct at common law without adequately bringing the switch to the unrepresented psychologist’s attention.  Also because the reasons were inadequate.  Justice Blow engaged in a mini-review of recent cases about health professionals and sex with former patients: Continue reading “Doctors, psychologists, sex and former patients”

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Legal Services Commissioner resigns

Update, 14 September 2009: Here are some comments made by the Commissioner to a journalist from The Australian about how her office might be remodelled, namely by giving consumers a more formal voice within her office.

Original post: Victoria’s Legal Services Commissioner, Victoria Marles, resigned today, effective 23 October 2009, to take up a position in the not-for-profit sector.

Will they try once more to woo John Faine?

The newbie’s job will be uncertain.  What will the effect on the states’ Commissioners’ offices of national regulation now being pursued with increased vigour?  Either they will be abolished and their staff fight with one another for positions in the one smaller more efficient national regulator, or they will become a part of one muscular unified Australia-wide scheme of regulators around which a well-understood national law of lawyers’ obligations can gather jurisprudence and engender quality texts.

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Criminal records

I have defended more than one lawyer whose client said the lawyer had failed to advise him properly as to the consequences of a guilty plea.  There are many more gradations of disposition of criminal prosecutions than I had realised, and ‘without conviction’ does not mean that society forgets the transgression ever after for all purposes.  I seem to recall that even pending charges appeared on the Police’s LEAP database, which generates criminal record checks.  Victoria has no spent convictions legislation, unlike the other states and territories other than South Australia, but the situation is not quite so simple as that statement makes it sound, since there are certain practical non-legislative impediments to obtaining criminal record checks which go back too far.  Here is a link to a Melbourne University Law Review article which seems to contain a wealth of up to date scholarship on the consequences of various dispositions of criminal proceedings.  The authors are Brownyn Naylor, Associate Professor Moira Paterson, and Professor Marilyn Pittard.

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Professionals’ duties of care to subsequent purchasers of commercial buildings

My fellow barrister Andrew Kincaid has written a useful summary of that thorny part of the law of negligence which regulates in what circumstances builders owe a duty to people who buy buildings from the original owner to avoid them suffering pure economic loss when a latent defect becomes patent. Although we (or I at any rate) usually think about this problem in terms of builders, Andrew points out for readers of this blog that President Maxwell’s decision in Moorabool Shire Council v Taitapanui [2006] VSCA 30 suggests at [24] that desk-workers like engineers and designers might also owe these kinds of duties.  Here it is: Continue reading “Professionals’ duties of care to subsequent purchasers of commercial buildings”

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Costs do not always follow the event

Generally, costs of a proceeding follow the event in the sense that the winner at trial is entitled to an order that the losing party pay its costs, calculated on a party-party basis. That the loser is poor, or only just lost, or lost on a technicality, is usually irrelevant. In Jones v Apps (No 2) [2009] VSC 366, however, the defendant’s unmeritorious conduct which led to the litigation which he won and sought the costs of, and the devastating financial losses suffered by the plaintiff, an ingenue, with which the defendant was associated (though not found legally liable for), were sufficient in combination to displace the usual order, with the result that in the exercise of his discretion in relation to costs, Justice Hansen ordered that neither party be liable to pay the other party’s costs. It is an exceptional case, but it is a useful reminder of the Court’s absolute discretion in relation to costs, regardless of how settled the application of the discretion often appears to be.

In relation to the discretion, see Supreme Court Act, 1986 (Vic.) s 24(1). In Latoudis v Casey (1990) 170 CLR 534, Justice Dawson described the discretion as ‘unqualified’, Justice McHugh J described it as ‘uncontrolled’, and Chief Justice Mason described it as ‘unconfined’. That may be so, but it is a discretion the unqualified exercise of which must be exercised judicially: Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2001] NSWCA 137; (2001) LGERA 439 at 447 per Justice of Appeal Stein. See also Dal Pont’s Law of Costs (2008) pp 160ff from which these authorities are taken.

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Latest on expert evidence in professional negligence cases

A barrister is being sued for negligence in the NSW Supreme Court. The plaintiff sought to tender an expert report of a senior counsel to the effect that a barrister of ordinary competence would have appreciated from the start that the case he had run on behalf of the plaintiff had been hopeless. Mid-trial, the Court refused the tender of the report, and refused an application to tender a varied report with a view to curing the defects which prevented the tender of the original

The Court found that the witness, having 32 years’ practice in the relevant fields probably was qualified to give evidence about what competent lawyers would do in various situations in his fields of practice, even though the evidence of that competence had not been properly set out. At issue was a dispute arising from a conveyance, so there was a large body of practice to assess. Justice Brereton doubted the wisdom of the drafting of the report (‘In the circumstances faced by [the barrister]’, a careful and competent professional would have acted …), but found that this was not one of the numerous cases where the failure to articulate exactly what those circumstances were understood to be rendered the report bad.

By the time the barrister’s conduct fell to be considered, the case the expert said the defendant barrister should have appreciated to have been hopeless had gone against the barrister’s client. What rendered the report inadmissible was ex post facto reasoning backwards from the adverse judgment, an ambiguity in the report, and a lack of articulated reasoning (the two key paragraphs from the judgment are reproduced below). The report was nothing but assertion — just an ipse dixit. The decision is Lucantonio v Klein [2009] NSWSC 853. Justice Brereton summarised the relevant principles helpfully:
Continue reading “Latest on expert evidence in professional negligence cases”

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Conflict applications to restrain opposing solicitors from acting not interlocutory

In Legal Practice Board v Lashanky [2008] WASC 294, the Supreme Court of Western Australia’s Justice Chambers said that applications to restrain solicitors from acting are not interlocutory applications, so that affidavit evidence may not be given from information and belief (i.e. the hearsay prohibition is not relaxed as it is for interlocutory applications):

’29    Under O 37 r 6(2) of the Rules of the Supreme Court 1971 (WA), an affidavit used for the purposes of interlocutory proceedings may contain statements of information and belief. However, an application to restrain a solicitor from acting is not an interlocutory proceeding. Continue reading “Conflict applications to restrain opposing solicitors from acting not interlocutory”

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The consequences of substituting lawyers responsible for client matters

My experience of working in and representing big firms is that they consider they have an entitlement to swap lawyers in and out of files, even if that involves the loss of accumulated knowledge and a need to spend time on (and therefore charge fees for) the newbie coming up to speed.  One of the things solicitors whose retainers are governed by the Legal Practice Act, 1996 are required to disclose before, or as soon as reasonably practicable after, being retained, is the name of the person who will be principally responsible for the matter (s. 86(3)(a)).  Under the Legal Profession Act, 2004 there is no such requirement, but I often see disclosures and costs agreements which specify who is going to work on a matter, and at what rate.  In Fitzroy Robinson Ltd v Mentmore Towers Ltd [2009] EWHC 1552 (TCC), the Queen’s Bench Division of the English High Court considered an alleged breach of a promise in a professional services contract that a certain person would work on an engagement. I will link to CMS Cameron McKenna’s excellent Law Now service’s helpful case note rather than reinventing the wheel.

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Offences created by the Legal Profession Act, 2004

Note: I drafted this post last financial year.  Since then, the value of a penalty unit increased today by about 3%, to $116.82, with the result that the dollar figures referred to below will be commensurately too low.  See the details at Quis Custodiet Ipsos Custodes.

Original post: I acted for a fellow whom the Law Institute as delegate of the Legal Services Board was purporting to investigate, and noticed for the first time what a rich repository of crimes is the Legal Profession Act, 2004. Two are punishable by imprisonment of up to 5 years or more: s. 3.3.21(1) (having or causing a trust account deficiency or failing to pay trust money) and s. 5.5.15 (interfering with property to defeat a receivership of a law practice). A third, s. 2.2.2(1) (unqualified practice) is punishable by up to 2 years’ imprisonment respectively. Eight are punishable by fines of up to about $27,000, about 25 by fines of up to about $13,500, about 57 by fines of up to about $7,000, and another 14 by fines of between up to about $500 and about $2,500. That’s over 100 crimes.  As far as I know, the only conviction is likely to have been under s. 3.3.21.

All of the offences punishable only by fines are summary offences: 600 penalty units (a fine of about $68,000) and imprisonment for up to 5 years being the level of seriousness which brings offences into the indictable category: see s. 112 read with s. 109 of the Sentencing Act, 1991.  So s. 3.3.21(1) (having or causing a trust account deficiency or failing to pay trust money) and 5.5.15 (interfering with property to defeat a receivership of a law practice) appear to be the only indictable offences created by the Act.  They may be prosecuted at any time, while all those punishable by fines, and unqualified practice, are summary offences which may generally be prosecuted only within 12 months after the allegedly criminal conduct occurred, by virtue of s. 26(4) of the Magistrates’ Court Act.  Do not allow an investigator under the Legal Profession Act, 2004 to investigate a summary offence if the conduct allegedly occurred more than a year beforehand!  (Whether the Legal Services Commissioner may entertain a disciplinary complaint more than a year after the relevant conduct is a more difficult question. See this post.)

I really wonder about the social utility of having all those crimes there. Continue reading “Offences created by the Legal Profession Act, 2004”

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Double jeopardy and disciplinary proceedings

Coke-Wallis v Institute of Chartered Accountants In England and Wales [2009] EWCA Civ 730 considered the application of principles of res judicata and autrefois acquit (the criminal version of the same principle, an aspect of double jeopardy) to disciplinary ‘prosecutions’.  It did so in the context of the disciplining of accountants.  The relevant scheme made a conviction conclusive evidence of an act likely to bring the accountant, and the profession, into disrepute. The conviction itself, and the conduct of which it was conclusive evidence were each able to justify disciplinary sanction. Mr Coke-Wallis was convicted of a crime but the disciplinary prosecution brought on that basis failed unexpectedly.  So the regulator charged him again, by reference to the conduct which was the subject of the conviction.  The English Court of Appeal held that the principles of res judicata, or autrefois acquit (which it seemed to assume applied to disciplinary proceedings) were not infringed, because the two charges were separate and distinct. That left open the question that though there was no legal bar to the second prosecution, nevertheless it constituted an abuse of process.  After analysis, no abuse was found.  English solicitors Shepherd + Wedderburn have kindly prepared a little case note.  Justice Gillard’s decision on a similar problem in Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 is the subject of this post.

The Institute does not always seem to get everything perfect.  Take for example, the Queen’s Bench Division’s description of another prosecution, in Gorlov, R (on the application of) v The Institute Of Chartered Accountants In England And Wales [2001] EWHC Admin 220, justifying an exceptional award of costs against a professional disciplinarian: Continue reading “Double jeopardy and disciplinary proceedings”

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Procedure in applications to set aside costs agreements

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:

Continue reading “Procedure in applications to set aside costs agreements”

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VCAT explores definition of professional misconduct at common law unconnected with legal practice

In Legal Services Commissioner v RAP [2009] VCAT 1200, the Bureau failed to establish a charge of professional misconduct at common law against a solicitor in respect of conduct which occurred otherwise than in the course of, and unconnected with, legal practice.  (Another charge, not the subject of this post, succeeded.) The allegation was that he:

‘deliberately misled a person with whom he had entered into a commercial transaction, thereby behaving in a manner that would reasonably be regarded as disgraceful or dishonourable by fellow practitioners of good repute and competency’.

The solicitor had negotiated in late 2005 with a car dealer for the purchase of a $1.4 million [sic.] car. Continue reading “VCAT explores definition of professional misconduct at common law unconnected with legal practice”

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Commissioner’s unexplained delay reduces penalty for serious misconduct

Speaking of the need for speed as Justice Heydon and I were on this blog yesterday, there are two other instances worthy of reporting.

First, the High Court has recently considered the need for speed in criminal proceedings, and were not nearly as excited about it as in commercial litigation. This time, they rolled the court below for saying that enough delay was enough and staying a criminal prosecution that had hung around for too long, resulting in the loss of exculpatory evidence.  The decision in R v Edwards [2009] HCA 20 might have application by analogy in disciplinary cases. It is blogged about at Quis Custodiet Ipsos Custodes, and there is a short note in the latest Law Institute Journal.

Secondly, delay by the Legal Services Commissioner has had a consequence in a serious disciplinary prosecution.  Parliament requires the Bureau de Spank to conduct their investigations ‘as expeditiously as possible’, and to give the complainant progress reports at least 6 monthly: s. 4.4.12, Legal Profession Act, 2004.  If the Commissioner complies with these injunctions, the degree of expedition which is possible is not always great.  In fact, sometimes the rate at which investigations progress is astonishing.  So glacial can progress be that the possibility that climate change sceptics might actually have some kernel of truth buried away beneath all of their hot air (-not) begins to nag at you.  There is a letter in the latest Law Institute Journal complaining about the Commissioner’s April 2009 response to a solicitor’s September 2008 letter (August 2009, p. 10).

An unexplained period of apparent inactivity of 18 months was taken into account in favour of the lawyer prosecuted for misconduct in Legal Services Commissioner v ER [2009] VCAT 1445.  This is a factor which might be brought to bear in many a plea in a disciplinary prosecution.  What Judge Ross’s tribunal said on this issue is: Continue reading “Commissioner’s unexplained delay reduces penalty for serious misconduct”

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Litigation takes speed

Adjournment applications and applications to amend out of time in civil proceedings just got more difficult. I have a feeling that the first time I said anything in court after I came to the Bar was an expression, to the Supreme Court’s Master Efthim, of how melancholy I felt about regrettably having little choice but to — ahem — respectfully submit that in all the circumstances, the only fair thing to do was to adjourn the following day’s trial of a commercial matter.  Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 was what got me my first victory as counsel, even if I did join the elite club (or possibly even achieve a unique status in the history of the Victorian Bar) of suffering an order for solicitor-client costs against my client on my first appearance.  It was an excellent introduction to my new reality of having to be the frontman in other people’s cases on short notice.

I knew Queensland’s Case (I could not resist) did not say exactly what many people lazily believed it to say. But the plurality (Justices Dawson, Gaudron and McHugh) did say:

‘Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.‘

I knew it could not last.  In fact my reaction to Justice Kiefel’s appointment to the Highkers was to note to myself that her Honour was the no-nonsense trial judge who had refused the adjournment in Queensland’s Case only to be rolled on appeal. I figured she would be plotting her revenge against that rare indignity.  Sure enough, in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 a plurality of Justices Gummow, Hayne, Crennan, Kiefel and Bell today shredded Queensland’s Case, excoriated four ACT Supreme Court judges‘ toleration of a radical amendment at trial which caused it to go off for months, threw a grenade full of speed and a bucketfull of steroids into litigation, especially commercial litigation, and implicitly gave Justice Finkelstein permission to look towards a uranium enriched rocket docket.  Justice Heydon and Chief Justice French were so excited about the need for speed that they weighed in with separate concurring decisions.  This is the penultimate, swingeing, paragraph in the decision (from Justice Heydon’s reasons):

‘The presentation and adjudication of the case in the courts below do cause it to merit a place in the precedent books. The reasons for placing it there turn on the numerous examples it affords of how litigation should not be conducted or dealt with. The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers. One fears that, in reality, there must be another.’

Continue reading “Litigation takes speed”

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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”