Bektas v McGarvie
[2015] VSC 78
•27 February 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S CI 2014 03176
| SAMMY BEKTAS | Plaintiff |
| v | |
| MICHAEL MCGARVIE (IN HIS CAPACITY AS LEGAL SERVICES COMMISSIONER) | Defendant |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 February 2015 |
DATE OF RULING: | 27 February 2015 |
CASE MAY BE CITED AS: | Bektas v McGarvie |
MEDIUM NEUTRAL CITATION: | [2015] VSC 78 |
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LEGAL PROFESSION AND PRACTICE — Roll of barristers and solicitors admitted to practice — Motion for removal of name of solicitor from roll — Application for removal by such solicitors — Power of single judge to make order under Legal Profession Act 2004 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr D Masel QC with Ms M Fitzgerald | Sarah Lethlean Solicitor to the Legal Services Commissioner |
HIS HONOUR:
This is an application made by way of originating motion by the plaintiff, Sammy Bektas, for an order removing his name from the role of practitioners of the Supreme Court of Victoria. The application is supported by the defendant, The Legal Services Commissioner.
Mr Bektas was admitted to practise as an Australian lawyer in Victoria on 5 March 2001. From 18 April 2001 to 31 January 2014, he held a local Practising Certificate. From about early April 2001 until May 2007, he was employed as a legal practitioner by another legal practice.
From 23 May 2007, he practised as a sole practitioner, Bektas and Associates. On 18 September 2007, he changed the name of his practice to Victorian Compensation Lawyers, and he continued to practise as a sole practitioner under that name. That practice was subsequently incorporated in the following year. Until 31 January 2014, Mr Bektas was the sole legal practitioner/director of the incorporated legal practice, Victorian Compensation Lawyers Pty Ltd, and on 31 January 2014, his Practising Certificate was cancelled in circumstances that I shall briefly describe.
The Legal Services Commissioner, the defendant, has before and after the cancellation of Mr Bektas’s Practising Certificate, received some 67 complaints concerning the plaintiff, pursuant to PART 4.2 of the Legal Profession Act2004. Of those complaints, 23 disciplinary investigations remain open, but suspended, by the defendant. Twenty-one have been withdrawn by the complainant, and eleven of them were the subject of an application to the Victorian Civil and Administrative Tribunal (‘Tribunal’). I shall refer to that matter shortly. Eight were summarily dismissed, and four were otherwise resolved.
At the time that the plaintiff commenced this proceeding, the defendant had conducted, or was conducting, seven investigations of its own motion. Of those, one was concluded without any finding against the plaintiff, one was the subject of the application to the Tribunal, and five remain open but suspended. The defendant’s offices also received and dealt with 13 pure costs disputes.
The materials which have been put before me are detailed and fulsome, and contained in two affidavits sworn by the defendant, and three affidavits sworn by the plaintiff. The parties have acted appropriately in providing that amount of material to the court and, indeed, the provision of such detailed material was the subject of a direction by the Full Court in Re Hills.[1]
[1][1973] VR 510.
In his first affidavit, the defendant has set out, in some detail, a description of each of the complaints made against the plaintiff, and the progress made in the examination of those complaints. In paragraph 12 of that affidavit, he summarised the effect of those investigations in the following terms:
‘My officers’ investigations reveal that, in conducting the practice, the plaintiff engaged in a pattern of conduct which repeatedly raised disciplinary concerns about: The charging of excessive legal costs, costs disclosure and billing practises, dealings with Trust money, the plaintiff’s conduct towards clients of the practice, including the exercise of undue pressure upon clients in his dealings with them in relation to the quantum of costs and their request for itemised bills, the adequacy of his advice and explanations to clients and the plaintiff’s failure, or refusal, to provide any, or any timely response to questions from my office upon my request.
During 2012 and 2013, the defendant prosecuted the plaintiff by an application to the Victorian Civil and Administrative Tribunal in respect of conduct arising out of 12 of the complaints. Shortly before the hearing, the defendant withdrew charges relating to two of those complaints. During the hearing, the proceeding was stood down, and lengthy negotiations then ensued between the plaintiff and the defendant. Ultimately, an agreement was reached, as a result of which an agreed statement of facts and amended charges were placed before the Tribunal. The plaintiff pleaded guilty to those charges. Submissions were made to the Tribunal and the Tribunal then reserved its decision. On 16 December 2013, the Tribunal delivered its order and reasons for decision. It found the plaintiff guilty of eight charges of professional misconduct, and five charges of unsatisfactory professional conduct.
In summary, charges which were found to have been proven, involved the following conduct by the plaintiff: Charging excessive costs; placing undue and improper pressure on clients in respect of costs; making errors of professional judgement, failing to comply with costs disclosure obligations under the Act; failing to comply with disclosure obligations in the making of inappropriate statements and bills issued to clients; failing to provide itemised bills upon his client’s request, and placing undue pressure upon clients not to maintain requests for itemised bills; failing to provide trust account statements and other trust account information to clients; failing to provide adequate advice to clients in respect of the recovery of remuneration from third parties; substantially and consistently failing to provide adequate advice to clients; and failing to respond adequately, or at all, to a number of the defendant's statutory demands for information.
In conclusion, the Tribunal made orders which placed controls on the plaintiff’s entitlement to practise, and as from 31 January 2014, his Practise Certificate was cancelled. He was also ordered to pay the costs of the proceeding.
I should also state, importantly, that notwithstanding those findings by the Tribunal and the investigations by the defendant, no allegation of fraud or dishonesty was made, or has been made, against the plaintiff.
As a result of the negotiations that occurred between the plaintiff and defendant, agreement was made between them on 12 June 2014 whereby the plaintiff agreed to make this application to this court, and he also agreed to pay the sum of $116,500 as compensation to the complainants. The plaintiff has complied fully, as I understand it, with both of those obligations. He has made this application, has helpfully put material before the court, and appeared today to support the application.
Secondly, he has paid the full amount of compensation, which he agreed to pay and, indeed as I understand it, may even have paid a little bit more. As a result of that, the defendant, in my view, has appropriately exercised his discretion under s 4.4.12A(1a) to suspend any further investigations of the complaints made against the plaintiff.
That, then, is the background of the application before me. The first question which arises is whether this court has a power to make an order of the type sought by the plaintiff in this case. That question has been partly resolved by the decision of the Full Court in Re Hills,[2] to which I have already referred. In that case, the practitioner, himself, made an application on motion to the Full Court that his name be removed from the roll of barristers and solicitors admitted to practise in the court. The Full Court held that the court had an inherent jurisdiction to grant the relief sought, and proceeded to grant the motion.
[2][1973] VR 510.
The question which arises is whether I, sitting alone as a single judge of this Court, have a like power to grant the relief sought, or whether that relief might only be granted by a full court sitting in bank. The power to order the removal of a practitioner, who has been admitted to practise by the Supreme Court, is not contained in any express legislative provision. However, it has long been recognised as an incident to the power of the court to admit a person to practise as a lawyer. That recognition goes as far back as 1830 in the decision of the Privy Council on a petition to it in Re the Justices of the Court of Common Pleas at Antigua.[3] In that case, Lord Wynford, delivering the decision of the Privy Council, at p.268 said as follows:
Now, advocates and attorneys have always been admitted in the Colonial courts by the judges, and the judges only. The power of suspending from practise must, we think, be incidental to that of admitting to practise, as is the case in England with regard to attorneys.
[3](1830) 1 Knapp 267, 33 RR 25, PC.
That view, of course, was further supported by the decision of the Full Court in Re Hills, which I have referred, although in that case, the court described the power as being an inherent power rather than an incidental power.
The power of this court to admit a practitioner to practise is contained in s 2.3.4 and following, of the Legal Profession Act, which vests that power in the Supreme Court. It is noteworthy that the relevant statutory provisions do not require that the Supreme Court sit in banc to make such an order. Order 14.05(1) of Chapter 2 of the Rules of the Supreme Court provides that an application for such admission shall be heard and determined by a judge, or such judges of the court sitting in banc, as the Chief Justice may direct. Thus, the power to admit a practitioner may be exercised by a single judge, although it has long been the tradition of this court that it be exercised by a Full Court sitting in bank.
It would, therefore, follow that the power to remove a practitioner's name from the roll, being incidental to that power, may also be exercised by a single judge of this court. In that respect, I am fortified by the decision by the decision of Brooking J, in Re B (a solicitor).[4] In that case, there was an application to have a solicitor struck off, or suspended from, the rolls of the court. That application was made under a specific provision of the then Legal Profession Practice Act. Brooking J described the as being older than the express legislative provision, and being an incident of the power to admit a person to practise. In expressing that view, his Honour referred to the decision of the Privy Council in Antigua Justices, Re, to which I have just referred.
[4][1986] VR 695.
Accordingly, I am satisfied that I do have power to grant the orders sought in the originating motion.
The jurisdiction that this court exercises, both in admitting practitioners to practise, and in removing a person’s name from the roll of the court is, of course, essentially protective, and not punitive in its purpose. In other words, the purpose is to ensure that those whose names are on the roll are fit and proper to practise law in Victoria, so that members of the community may have a proper sense of confidence in the competence and integrity of those engaged in legal practice in this State. It needs hardly to be stated that that is an important element in ensuring that our system of justice functions in a manner designed to protect the rights of members of our community.
Thus, the question as to whether the motion in this case should be granted should be determined bearing in mind the central purpose of the power, namely its protective purpose. In this case, it seems clear from the matters that have been put before me, that no purpose would be served in retaining Mr Bektas’s name on the roll.
In particular, it would seem that the removal of his name off the roll would not prevent the defendant from continuing to deal with civil complaints concerning costs disputes under PART 4.3 of the Act. Secondly, removal of his name from the roll would not have any effect on the rights of his former clients to challenge legal costs charged to him by his former practice. Thus, I cannot, nor can the defendant, detect, any purpose which may be served to protect the public by retaining Mr Bektas’s name on the roll.
On the other hand, if I were not to grant this application, the Commissioner would be required to revitalise his investigations. In that case, it is expected that the Commissioner would, pursuant to the provisions of the Act, be obliged to bring proceedings before the Tribunal. That process would be lengthy and expensive. It would, as I understand, occupy at the very least, two fulltime officers of the defendant for at least one year in the process. It would tie up the resources of the Tribunal, and be an expensive and exhausting process. At the conclusion of such a process, at most, the Tribunal could recommend that Mr Bektas’s name be removed from the local roll, or otherwise make orders of lesser effect. Thus, if I were not to accede to this application, it would seem that a long road would need to be travelled, which would result, at most, in the same disposition which is urged upon me by the parties. In those circumstances, I am persuaded that there is no reason for retaining Mr Bektas’s name of the roll, and the public interest is better served by acceding to his application to have his name removed from the roll.
In reciting these reasons, I have not referred to Mr Bektas’s affidavits, but I have read them. In short, it seems to me that Mr Bektas, like some practitioners, got himself in the position where he — to use the vernacular — bit off more than he could chew. He became overwhelmed by the demands of practice, and it would seem that a number of the problems which he had were the result of a snowballing process because of those difficulties.
The parties in this case, Mr Bektas and the Legal Services Commissioner, have acted entirely responsibly and properly in bringing this matter to this court, and I particularly commend Mr Bektas for the sensible attitude he has adopted before this Court.
With those remarks in mind, I am therefore persuaded to make the orders sought in the originating motion, which is an order for the removal of Bektas’s name from the role of practitioners of the court.
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