Beling v Legal Services Commissioner
[2016] VSC 180
•22 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 06088
| JOEL LORENSZ BELING | Plaintiff |
| v | |
| LEGAL SERVICES COMMISSIONER | Defendant |
---
JUDGE: | DERHAM AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 March 2015 |
DATE OF JUDGMENT: | 22 April 2016 |
CASE MAY BE CITED AS: | Beling v Legal Services Commissioner |
MEDIUM NEUTRAL CITATION: | [2016] VSC 180 |
---
JUDICIAL REVIEW AND APPEALS – Order 56 – Application for orders in the nature of mandamus and prohibition by solicitor being investigated by the defendant under Part 4.4 of the Legal Profession Act 2004 – Whether application for orders in the nature of mandamus and prohibition available against the defendant on the facts – Orders not available.
PRACTICE AND PROCEDURE – Application by defendant for summary judgment under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015, s 63 of the Civil Procedure Act 2010 or pursuant to the inherent jurisdiction of the Court – Application Granted.
PRACTICE AND PROCEDURE – Application by plaintiff for leave to discontinue the proceeding under r 25.03 on the basis that the defendant’s actions have rendered the proceeding useless – Application for the defendant to pay plaintiff’s costs on discontinuance – Operation of r 63.15 of the Rules – Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the Defendant | Ms L Kirwan of Counsel | Ms Tina Stagliano, Solicitor of the Legal Services Commissioner’s Office |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Background......................................................................................................................................... 1
The Originating Motion............................................................................................................... 6
The Plaintiff’s Affidavits.............................................................................................................. 7
Applicable law.................................................................................................................................. 10
Judicial Review Under Order 56 ‑ Certiorari, Prohibition and Mandamus....................... 10
The relevant provisions of the Legal Profession Act............................................................. 12
Principles Relevant to the Summary Judgment Application............................................... 14
Discontinuance............................................................................................................................ 16
Summary Dismissal ‑ Submissions and Consideration........................................................... 19
Mandamus................................................................................................................................... 20
The Submissions Ground................................................................................................. 20
The Banks and Money Ground................................................................................................. 21
The Further Amended Statement of Claim Ground.............................................................. 22
The Legal Basis of the Charges Ground.................................................................................. 22
The Compliments Ground......................................................................................................... 22
The Failure of the Complainants to Raise Concerns Ground.............................................. 23
The Attempts to Renegotiate the Retainer Ground............................................................... 23
The Complainants Unreliability and Medical Condition Grounds.................................... 24
The Inconsistent Advice Ground.............................................................................................. 24
The Discovery Grounds............................................................................................................. 24
Abuse of Power Grounds.......................................................................................................... 25
Prohibition Grounds................................................................................................................... 26
The Questions Sought to be Answered................................................................................... 27
Discontinuance ‑ Submissions and Consideration................................................................... 28
Conclusion......................................................................................................................................... 32
HIS HONOUR:
Introduction
The defendant applies by summons filed on 20 February 2015 to dismiss the proceeding under:
(a) rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 (‘Rules’);
(b) sections 62 and 63 of the Civil Procedure Act 2010 (Vic) (‘the CPA’); or
(c) the inherent jurisdiction of the Court.
The plaintiff, on the other hand, applies for leave to discontinue the proceeding. The plaintiff purported to apply for leave to discontinue the proceedings by filing a Notice of Motion on 26 February 2015. In that Notice he also applies for the costs of the proceeding against the Commissioner.
It is clear therefore that the proceeding must come to an end. The question is on whose application and on what terms?
I have concluded for the reasons that follow that the defendant’s application for summary dismissal should be granted, with costs, and that the plaintiff’s application to discontinue should be dismissed.
Background
By Originating Motion filed on 17 November 2014, the plaintiff applied pursuant to Order 56 of the Rules for orders in the nature of mandamus and prohibition and for certain questions to be answered.
The proceeding concerns an investigation carried out under Part 4.4 of the Legal ProfessionAct2004 (‘the Act’) in relation to the conduct of the plaintiff as an Australian legal practitioner. The investigation was made in response to a disciplinary complaint made by former clients of the plaintiff who had engaged the plaintiff as solicitor and advocate in relation to a proceeding in the Federal Magistrates’ Court of Australia[1] between the clients and the Australia and New Zealand Banking Group Ltd.[2]
[1](as it then was).
[2]Affidavit of Tina Stagliano sworn 20 February 2015 (‘Stagliano affidavit’), Exhibit TS-1, letter 20 May 2014.
The proceeding has arisen as a result of the defendant advising the plaintiff by letter dated 20 May 2014[3] that it was possible that a finding of professional misconduct or unsatisfactory professional conduct might be made against him in consequence of complaints made by the clients (‘the complainants’). The defendant gave the plaintiff an opportunity to provide written submissions or further material in response. This letter is generally known as a Murray Letter, named after the decision of the New South Wales Court of Appeal in Murray v Legal Services Commissioner.[4] It affords the practitioner concerned procedural fairness. The plaintiff took up that opportunity and made very extensive submissions as to why the defendant should not conclude that there was a reasonable likelihood of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) finding him guilty of professional misconduct or unsatisfactory professional conduct.
[3]Letter from the defendant’s delegate to the plaintiff dated 20 May 2014, Exhibit TS-1 to the Stagliano affidavit.
[4][1999] NSWCA 70, (1999) 46 NSWLR 224.
In substance, the proceeding seems to have been designed to interrupt the process the defendant was required to follow under Part 4.4 of the Act and stop the defendant making the finding foreshadowed until he had done certain things, or considered certain matters, the plaintiff contended were relevant to the defendant coming to a decision.
The Originating Motion did not, however, seek injunctive relief to restrain the defendant from making a decision as to whether or not there is a reasonable likelihood that the Tribunal would find the plaintiff guilty of professional misconduct or unsatisfactory professional conduct.
The proceeding came on for directions on 16 December 2014 before another Associate Justice. The plaintiff announced that he sought to amend his Originating Motion, and had provided a draft to the defendant the day before. The defendant opposed the application to amend, on the basis that the amendments were fundamentally hopeless. The defendant also informed the Court and the plaintiff that the investigation into the complaint made against the plaintiff was complete and he would proceed to make a decision under s 4.4.13 of the Act (as to which see below) absent the Court granting an injunction.
In the course of the directions hearing on 16 December 2014, it emerged from submissions made by Ms Kirwan, Counsel for the defendant, that the affidavit in support of the Originating Motion had not been properly sworn, because at least one of the exhibits to it had not been present at the time of swearing. The Court was also told by Ms Kirwan that late on 15 December 2014, the defendant had been served with 10 bags of loose documents which appeared to be exhibits to the affidavit. The certificates for the exhibits had not, however, been signed by the person before whom the affidavit was sworn. A further bundle of supposed exhibits were given by the plaintiff to the defendant on the day of the directions hearing and there were apparently more to come.
Later, in an affidavit sworn on 26 February 2015, the plaintiff revealed that the exhibits were incomplete because he could not afford to print them all.[5] In that affidavit, the plaintiff went on to deal with observations made in the affidavit filed on behalf of the defendant sworn by Ms Stagliano on 20 February 2015, in particular as to the fact that the purported exhibits to the plaintiff’s affidavit of 24 November 2014 either did not have the required certificate signed by the person before whom the affidavit was sworn, or that there was no exhibit note attached to some supposed exhibits at all. Essentially, the reasons given by the plaintiff in that affidavit were that Registry staff had advised that he need not file the exhibits at the time of the filing of the affidavit, because of time constraints and because of his inability to afford the copying expenses.
[5]Affidavit of plaintiff sworn 26 February 2015, at [25].
It was made clear in the course of the directions hearing that the defendant viewed the proceeding as without merit, that if no interlocutory injunction was applied for (in the Practice Court) the defendant would proceed to make a decision under s 4.4.13 of the Act. In that case the proceeding would have no utility and should be dismissed. If an injunction was sought and refused, the same position applied. If an injunction were granted then the defendant would apply to summarily dismiss the proceeding or seek a final hearing expeditiously.[6] It emerged later, when the plaintiff swore his affidavit in support of his application for leave to discontinue the proceeding,[7] that the defendant had, by letter dated 15 December 2014, warned the plaintiff of the submissions that would be made on 16 December 2014.
[6]Transcript, 16 December 2014, p. 9.
[7]Affidavit of 26 February 2015.
The plaintiff indicated in the course of the directions hearing that he had ‘no issue with the defendant prosecuting’ him under the Act, he just wanted to know why his responses to the Murray Letter had not been put to the complainants for their comment.[8]
[8]Transcript, 16 December 2014, p. 11.
The plaintiff was urged by the Court to seek independent advice and the Court took steps to enable the plaintiff to access the Victorian Bar pro bono barrister scheme at no cost to him. The Court ordered that the application to amend the Originating Motion be adjourned to a special fixture on 27 February 2015.
On 23 December 2014, the defendant made a decision pursuant to s 4.4.13 of the Act. The making of a decision under that section concluded the Commissioner’s investigations under the Act. The decision was that the defendant is satisfied that there is a reasonable likelihood that Tribunal would find the plaintiff guilty of professional misconduct. Accordingly, under s 4.4.13(2) of the Act, the defendant must apply to the Tribunal for an order under division 4 in respect of the plaintiff.
On 5 January 2015, the plaintiff informed the Court and the defendant by email that he intended to apply for leave to discontinue the proceeding. The apparent basis for doing so was set out in that email but relied upon matters the subject of without prejudice privilege, being communications made in an attempt to negotiate a settlement of the dispute between the parties. The defendant has objected to reliance upon those matters except as to the question of costs, which is the ultimate issue arising out of the competing applications.
On 20 February 2015, the plaintiff provided to the Court by email, and copied to the defendant, a ‘notice of motion’ in which he sought leave to discontinue the proceeding and that the defendant pay his costs. The Notice of Motion was not formally filed.
Because the plaintiff’s application to discontinue the proceeding was not in the appropriate form and had not in any event been filed, the defendant, out of an abundance of caution, applied to the Court on 20 February 2015 to summarily dismiss the proceeding on the grounds that it:
(a) had no real prospects of success from the outset; and
(b) has no possible utility following the decision of the defendant made on 23 December 2014 under s 4.4.13 of the Act that he was satisfied that there was a reasonable likelihood that the Tribunal would find the plaintiff guilty of professional misconduct.[9]
[9]Letters dated 22 December 2014 from the defendant to Ms Tracie Hannah and the plaintiff, exhibit TS-2 to the Stagliano affidavit.
On 24 February 2015, the defendant filed its Outline of Submissions in support of its summons.[10]
[10]Defendant’s Outline of Submissions in Support of the Summons for Summary Dismissal of the Proceeding files 24 February 2015 (‘Defendant’s Submissions of 24 February 2015’).
On 26 February 2015, the plaintiff filed an Outline of Submissions in support of the application to discontinue the proceeding. The defendant’s Outline of Submissions of 24 February 2015 indicated that he was prepared to consent to the proceeding being discontinued, but not on the basis that he pay the plaintiff‘s costs. The defendant submitted that the costs should follow the event as provided in rr 25.05 and 63.15 of the Rules and that the Court should not otherwise order in this case.[11]
[11]Defendant’s Submissions of 24 February 2015.
The plaintiff swore an affidavit on 26 February 2015 in support of his application to discontinue the proceeding. He revealed that he could not afford legal representation and was receiving the Newstart allowance from Centrelink. The affidavit puts the history of his communications with the defendant after receiving the Murray Letter of 20 May 2014.
The Originating Motion
The statement of the relief sought in the Originating Motion is long, convoluted, confusing and repetitive. In a compressed form the plaintiff applied as follows:
(a) for orders in the nature of mandamus that –
(i) in giving an indication [sic] on 6 November 2014[12] that the defendant was likely to decide that there is a reasonable likelihood that VCAT would find the plaintiff guilty of professional misconduct, the defendant failed to take into account or sufficiently in account [sic] certain relevant considerations; and
[12]Although the Murray Letter was sent on 20 May 2014, there was much subsequent correspondence regarding the reasonable likelihood that the Tribunal would find the plaintiff guilty of professional misconduct of unprofessional conduct: see TS-1 to the Stagliano affidavit.
(ii) the defendant has abused the exercise of its discretionary powers, acted or omitted to act [sic] in a manner which is not in good faith, or otherwise conducted an investigation by delegates who are biased against the plaintiff, or who have acted or omitted to act in a manner as a result of which the plaintiff has a reasonable apprehension of the investigating delegates’ bias against the plaintiff;
(b) for an order in the nature of prohibition, prohibiting or staying the defendant from issuing a Notice of Decision under s 4.4.14 of the Act [sic] until the plaintiff’s complaint regarding the professional conduct of the investigating officers is itself investigated and the delegates of the defendant are disqualified or ‘recused’ from further involvement in the investigation of the plaintiff on the basis of bias against the plaintiff, and related matters;
(c) for certain questions to be answered by the Court, including by way of example, what are the elements of the charge under Rule 12.2 of the Professional Conduct & Practice Rules (‘PCP Rules’). I note one of those purported questions is stated to be ‘confidential… to be advised in due course’.
The Plaintiff’s Affidavits
As I have mentioned, the plaintiff swore a number of affidavits in support of his application. The plaintiff’s affidavit sworn 24 November 2014 is very long (40 pages) and was served without any exhibits[13] notwithstanding that there 95 exhibits referred to in it, some very large. Exhibit JLB-3 to that affidavit was said to comprise a copy of the plaintiff’s file in the matter the subject of the investigation. That file was in the possession of the Commissioner. A copy was not provided to the plaintiff until after the affidavit was served. Indeed, in paragraph 4 of that affidavit, the plaintiff says that the defendant has a full copy of his file in the matter ‘which I mark exhibit JBL-3, and has agreed to courier it to me sometime today’. Further, some but not all of the exhibits were served on the defendant before the last hearing in December 2014 but none of the exhibits had attached a certificate signed by the person who witnesses the affidavit of 24 November 2014 and a number of those exhibits had no covering exhibit certificate at all.
[13] Stagliano affidavit at [9].
My examination of the purported exhibits to the affidavit of 24 November 2014, as supplied to the Court, (they occupy 9 lever arch folders) reveals that not one has a certificate annexed to it which is signed by the person before whom the affidavit is sworn, as required by r 43.06 (2) of the Rules. Many exhibits are missing altogether.[14]
[14]Purported Exhibits JLB-7, JLB-8, JLB-10, JLB-12, JLB-13, JLB-15 to JLB-31, JLB-33 to JLB-46, JLB-48, JLB-50 to JLB-54, JLB-57 to JLB-59, JLB-61, JLB-62, JLB-64, JLB-65, JLB-68, JLB-69, JLB-71, JLB-73 to JLB-82, JLB-85, JLB-89, JLB-90, JLB-93 to JLB-95.
One of the missing exhibits is a draft of his Originating Motion in this proceeding given to delegates of the defendant at a meeting on 14 November 2014. Two exhibits that are, curiously, included are an acknowledgement by the defendant of service of the Originating Motion and Summons in this proceeding and a response from the plaintiff in which he says:[15]
Please advise if the Commissioner changes his mind in relation to any of the issues I have raised in my Originating Motion.
There are still over three weeks until the Directions Hearing and it is still possible to resolve the issues without the Court’s involvement.
[15]Purported Exhibits JLB-91 and JLB-92.
One exhibit (JLB-9) is said to be a letter from the plaintiff to the defendant dated 21 April 2013 enclosing all email correspondence between the plaintiff and Ms Hanna, one of the complainants. The letter is not included, but about 400 pages of email correspondence is included.
The defendant submits that the affidavit is irregular in form and ought not to be accepted on the Court file.
The evidence and submissions of the plaintiff display a lack of understanding of a quite basic kind regarding the requirements for the swearing of affidavits with exhibits. Rule 43.06 provides:
(1)A document referred to in an affidavit shall not be annexed to the affidavit but may be referred to as an exhibit.
(2)An exhibit to an affidavit shall be identified by a separate certificate annexed to it—
(a) bearing the same heading as the affidavit; and
(b) signed by the person before whom the affidavit is sworn.
(3) The certificate shall—
(a) be in Form 43A; and
(b)contain in the bottom right hand corner of the page in bold type and in a font size not less than 20 points the distinguishing mark of the exhibit and a brief and specific description of the exhibit.
The purported exhibits to the plaintiff’s affidavit of 24 November 2014 were not identified by separate certificates that are signed by the person before whom the affidavit is sworn. Nor do they contain in the bottom right hand corner of the page in large bold font the exhibit mark and a brief description.
Irregularities of this kind can, of course, be overcome in a variety of ways, including by the affidavit being re-sworn with the exhibits. But the plaintiff has, in his subsequent affidavit of 26 February 2015, stated that he will not be serving the exhibits or the exhibit certificates missing from his affidavit of 24 November 2014 because the defendant has, in a letter dated 22 December 2014, revealed a defence to the proceeding that renders it useless. That supposed defence, which is central to his submission that he should be given leave to discontinue and that his costs of the proceeding should be paid by the defendant, is that the defendant does not consider it necessary to put his submissions of 18 July 2014 and 8 September 2014 to the complainants because he does not intend to rely upon their evidence to dispute the veracity of those submissions. This, according to the plaintiff’s affidavits and submissions, means that the defendant has rectified a ‘breach’ that gave rise to the proceeding and thus nullified the claims in the Originating Motion.[16]
[16]Plaintiff’s affidavit of 26 February 2015 at [31], referring to the claims in paragraphs 1(a)(i), (ii), (iii), (v), (vi), (vii), (viii), (ix), (xi), (xiii), (xiv), (xv) and (xvi) of the Originating Motion.
The plaintiff submitted that the omission of the defendant to disclose before the commencement of the proceeding that he would not be relying on the evidence of the complainants to prove any of the charges against him has resulted in the plaintiff unnecessarily commencing the proceeding. Had the plaintiff known, he would not have commenced the proceeding.
The plaintiff swore another affidavit on 15 December 2014 in respect of which he purports to claim legal professional privilege on behalf of his former clients Tracie and Peter Hanna, notwithstanding that he has been notified by the defendant that they have waived their privilege. I note that s 4.2.15 (1) of the Act provides that if a client of a law practice or an Australian legal practitioner makes a complaint about the practice or practitioner, the complainant is taken to have waived legal professional privilege, or the benefit of any duty of confidentiality, to enable the practice or practitioner to disclose to the Commissioner any information necessary for dealing with or investigating the complaint. Sub-section (2) of that section provides that any information so disclosed may be used in or in connection with any procedures or proceedings relating to the complaint. This proceeding is, in my view, such a proceeding. The affidavit is, in large measure, a submission and contains a great many statements of the plaintiff’s belief as to a variety of matters allegedly connected with his claims.
The plaintiff also filed two further affidavits sworn on 26 February 2015 and 5 March 2015. The first deals with the plaintiff’s application to discontinue the proceeding and why the defendant should pay his costs. The second was filed pursuant to leave given at the conclusion of the hearing on 3 March 2015 to enable the plaintiff to advance evidence in support the grounds for judicial review set out in paragraphs 1(b)(i) to (vi) of the Originating Motion, being the ‘abuse of power’ grounds. It primarily consists of argument and submission.
Applicable law
Judicial Review Under Order 56 ‑ Certiorari, Prohibition and Mandamus
The common law jurisdiction of this Court to review decisions of inferior courts is subject to the procedure set out in Order 56 of the Rules. The jurisdiction is supervisory and does not entitle this Court to canvass matters that it would on an appeal. In a judicial review, the Court is concerned with the legality of what was done by the court or tribunal below, and is not concerned with the merits of the decision under review or whether the decision was fair or correct. This is to be contrasted with an appeal, where the question usually is whether the decision is right or wrong.[17]
[17]Lednar v Magistrates’ Court, [2000] VSC 549, at [98]-[103] per Gillard J; Craig v South Australia (1995) 184 CLR 163, 175–6; see also, by way of example, Stojanoski v Northern Meat & Poultry Supplies Pty Ltd & Anor [2001] VSC 229, per Gillard J at [30]-[33]; Velissaris v The Magistrates' Court of Victoria & Anor [2013] VSC 23 per Macaulay J at [12].
This is made clear in the decision of the High Court in Craig v South Australia[18] where the Court noted that:
[18](1994) 184 CLR 163, 175–6.
(a) certiorari was a process by which a superior court, in the exercise of its original jurisdiction, supervises the acts of an inferior court or tribunal. It merely enables the quashing of an impugned order or decision upon one or more of a number of distinct grounds of which the most important are:
(i) jurisdictional error;
(ii) failure to observe some applicable requirement of procedural fairness;
(iii) fraud; and
(iv) error of law on the face of the record;
(b) where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it;
(c) where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to ‘the record’ of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record; and
(d) it is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made.
An order in the nature of prohibition is appropriate where an inferior tribunal has exceeded its authority or assumed a jurisdiction it does not possess. Its object is not merely to prevent an individual being vexed by an order which might affect them in their person or property, made by a person or tribunal assuming to have jurisdiction to make such an order, but having no such jurisdiction, but also to prevent any person or tribunal from assuming a jurisdiction which has not been conferred on him or it.[19]
[19]R v Hibble; Ex parte BHP Co Ltd (1920) 28 CLR 456, 463 (per Knox CJ and Gavan Duffy J).
The main difference between certiorari and prohibition concerns the timing of the application to Court.[20] There is little or no difference in principle between certiorari and prohibition, except that the prohibition may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, then prohibition will lie to restrain it from so exceeding its jurisdiction.[21]
[20]Aronson & Groves, Judicial Review of Administrative Action, 5th Ed, at [12.20].
[21]R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co, [1924] 1 KB 171, 206 (per Atkin LJ).
Mandamus is a judicial command instructing the defendant to perform a public duty. It may be granted to a plaintiff of sufficient standing who proves that the defendant has actually or constructively failed to perform a duty of a public nature.[22] Further:
[22]Aronson & Groves, Judicial Review of Administrative Action, 5th Ed, at [13.10].
(a) an order in the nature of mandamus might be made whenever there was a specific legal right to require the performance of a statutory duty, and no specific legal remedy was provided for enforcing that right;[23]
[23]Royal Insurance Co Ltd v Mylius (1926) 38 CLR 477 at 497; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 398-9; Williams, Civil Procedure Victoria, at [56.01.25].
(b) in the case of a court or other body that is under a duty to hear and determine a matter, the order requires the hearing and determination of the matter, but not the determination of the matter in any particular manner;[24]
(c) a public duty must be performed in accordance with the law, but mere error in performance does not afford a ground for the grant of an order in the nature of mandamus. There must have been an error of such a kind that the duty had not in law been performed at all. That amounts to a constructive failure to perform the duty;[25] and
(d) mandamus has a wider scope than certiorari because it has always been available for use in respect of non-judicial functions.[26]
[24]R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 398-9; See also Murdesk Investments Pty Ltd v Roads Corporation [2005] VSC 39 at [17].
[25]Wade v Burns (1966) 115 CLR 537 at 555.
[26]Ibid at 551–2.
The relevant provisions of the Legal Profession Act
A complaint under the Act is a disciplinary complaint if it concerns conduct to which Chapter 4 applies, to the extent that conduct, if established, would amount to unsatisfactory professional conduct or professional misconduct.[27] Once a disciplinary complaint is made, it must be dealt with by the defendant in accordance with Part 4.4 of the Act.[28] The defendant is required to investigate each disciplinary complaint unless it is summarily dismissed.[29] As a part of the investigation process, the defendant may require a legal practitioner who is the subject of a disciplinary complaint to provide a full written explanation of the practitioner’s conduct.[30] The defendant is obliged to conduct an investigation as expeditiously as possible and to give updates to a complainant at least every six months until completion of the investigation.[31]
[27]s 4.2.3 of the Act.
[28]s 4.2.11(1)(b) of the Act.
[29]s 4.4.7(1) of the Act.
[30]s 4.4.11(1)(a) of the Act.
[31]s 4.4.12(1) and (2) of the Act.
A critical section for present purposes is s 4.4.13 of the Act which provides as follows:
(1)After an investigation has been completed under this Division, the Commissioner must deal with the matter in accordance with this section.
(2)The Commissioner must apply to the Tribunal for an order under Division 4 in respect of the Australian legal practitioner the subject of the investigation if the Commissioner is satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of professional misconduct.
(3)If the Commissioner is satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct, the Commissioner may—
(a)apply to the Tribunal for an order under Division 4 in respect of the practitioner; or
(b)with the consent of the practitioner, reprimand or caution the practitioner; or
(c) take no further action against the practitioner if satisfied that—
(i)the practitioner is generally competent and diligent; and
(ii)there has been no substantiated complaint (other than the complaint that led to the investigation) about the conduct of the practitioner within the last 5 years.
(4)If the investigation arose from a complaint under which the complainant requested a compensation order, the Commissioner may require the practitioner to pay compensation to the complainant as a condition of deciding under subsection (3) not to make an application to the Tribunal in respect of the practitioner.
(5)If the Commissioner is satisfied that there is no reasonable likelihood that the Tribunal would find the practitioner guilty of professional misconduct or unsatisfactory professional conduct, the Commissioner must take no further action against the practitioner.
(6)In determining what action, if any, to take under this section, the Commissioner may rely on a recommendation contained in a report of a prescribed investigatory body under this Division.
(7)An application to the Tribunal under this section need not identify the particular order or orders sought.
[emphasis added]
It can be readily seen that s 4.4.13 requires the defendant to take certain action once an investigation under the division has been completed. The defendant ‘must’ deal with the matter in accordance with the dictates of that section. In particular, if the defendant is satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of professional misconduct then the defendant must apply to the Tribunal for an order under Division 4. By contrast, if the defendant is satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional misconduct then the defendant may apply to the Tribunal or take other action.
The defendant submits, and in my view the provisions of Part 4.4 of the Act show, that it is against the policy of the Act that the course of an investigation is dictated or interfered with by the practitioner under investigation, unless the defendant denies the practitioner procedural fairness where that is required, or in some material way fails to perform his duties as laid down in the Act.
Principles Relevant to the Summary Judgment Application
The defendant makes application for summary judgment under the Rules, under the CPA and pursuant to the inherent jurisdiction of the Court. For present purposes, it is sufficient to refer to the relevant sections of the CPA, which state:
62 Defendant may apply for summary judgment in proceeding
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.
63 Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
…
(b) on the application of a defendant in a civil proceeding…
In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[32] Warren CJ and Nettle JA[33] summarised the test to be applied under s 63 as follows:
[32][2013] VSCA 15.
[33](as he then was).
(a) the test for summary judgment under s 63 of the CPA is whether the respondent to the application for summary judgment has a real as opposed to a fanciful chance of success;
(b) the test is applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel Industries Inc v Commissioner for Railways;[34]
(c) it should be understood, however, that the test is to some degree a more liberal than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, permits the possibility that there might be cases yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success; and
(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[35]
[34](NSW) (1964) 112 CLR 125 (‘General Steel’).
[35]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 15 at [35].
The power to give summary judgment must be exercised in accordance with the overarching purposes of the CPA and take into account the fact that, if granted, a party will be deprived of the chance to pursue its claim or defence.[36]
[36]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 15 at [42] (Neave JA).
If there is no real prospect of success, a court may nevertheless allow a matter to proceed to trial if:
(a) it is not in the interests of justice to summarily dispose of the proceeding;[37] or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.[38]
[37]s 64(a) of the CPA.
[38]s 64(b) of the CPA.
Whether a proceeding should be allowed to go to a full hearing on the merits must be determined according to the circumstances of each case.[39]
[39]Barber v State of Victoria [2012] VSC 554 at [15].
Discontinuance
Rule 25.03 provides:
A proceeding not commenced by writ may be discontinued and any part of a proceeding not commenced by writ may be withdrawn at any time –
(a) by leave of the Court; or
(b) with the consent of all other parties.
Rule 25.05 provides:
Where a proceeding, counterclaim or claim by third party notice is discontinued, or where part of a proceeding, counterclaim or third party notice is withdrawn, liability for costs shall be determined in accordance with Rule 63.15.
Rule 63.15 of the Rules provides:
Discontinuance or withdrawal
Unless the Court otherwise orders, a party who discontinues or withdraws part of a proceeding, counterclaim or claim by third party notice shall pay the costs of the party to whom the discontinuance or withdrawal relates to the time of the discontinuance or withdrawal.
By these rules the wide discretion of the Court as to costs is modified.[40] The modification is that the onus is on the party seeking to discontinue the proceeding (in this case, the applicant) to satisfy the Court that the costs should not be paid by him. The principles and factors that the authorities outline on these, and other similar rules in other jurisdictions, have been collected and summarised by Hallen AsJ[41] in Johnson & Anor v Clancy & Anor.[42] My summary of them is as follows:[43]
[40]Unless otherwise expressly provided by any Act or by the Rules, the costs of and incidental to all matters in the Supreme Court are in the discretion of the Court, and the Court has full power to determine by whom and to what extent the costs are to be paid: Supreme Court Act 1986 (Vic) s 24(1).
[41](as he then was).
[42][2010] NSWSC 1301 at [21]; see also One.Tel Ltd v Commissioner of Taxation [2000] FCA 270; 101 FCR 548, at [5]-[8]; Ringwood Plus Pty Ltd v Commissioner of State Revenue [2004] VSC 494 at [13]-[23]; Fehring Livestock Pty Ltd (In Liquidation) [2012] VSC 326 at [30].
[43]Soteriadis v Nillumbik Shire Council [2015] VSC 363 at [12].
(a) the rule does not give rise to a presumption that costs will be ordered against the discontinuing party;
(b) the rule does, however, create a starting position for the plaintiff to pay the defendant’s costs, subject to a contrary order;
(c) the contrary order itself involves a discretionary decision to be exercised judicially. If there is to be a departure from the starting position, it should be done in a particularised, and principled way. The Court is required to make such order as it thinks just in the particular circumstances of the case;
(d) the burden is on the party who seeks to persuade the Court that a contrary order should be made. If facts are to be relied upon to found the Court making a different order, the plaintiff will bear the onus of proving the relevant facts;
(e) all the relevant circumstances, and not just the fact of discontinuance, should be considered. This may include a consideration of the whole of the proceedings. Generally the discretion will be exercised on the basis of the objective circumstances established on the evidence and not involve the subjective considerations of one party;
(f) a relevant consideration is whether the plaintiff acted reasonably in commencing the proceedings and whether the defendant acted reasonably in defending them. It might also be appropriate for the Court to consider the conduct of the defendant prior to the commencement of the proceedings where such conduct may have precipitated the litigation;
(g) generally there must be some proper justification, sound positive ground, or a good reason, for departing from the staring position. The reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs, so for example, it may be appropriate to make a contrary order where:
(iii) the proceedings have been rendered unnecessary by circumstances beyond the plaintiff’s control;
(iv)the plaintiff achieved practical success in the proceedings; and
(v) costs have been significantly increased by the unreasonable conduct of the defendant;
(h) where the proceedings are discontinued prior to any hearing on the merits, usually it will be impracticable to assess the eventual prospects of success in the action and the Court cannot try a hypothetical action between the parties to determine the question of costs;
(i) there is a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event, or settlement, so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court’s discretion otherwise than by an award of costs to the successful party. It is the latter type of case that usually creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs; and
(j) where the proceedings are discontinued after interlocutory relief has been granted, the Court may take into account the fact that that interlocutory relief has been granted.
Summary Dismissal ‑ Submissions and Consideration
The defendant submitted that apart from a range of drafting deficiencies and misconceptions, the Originating Motion does not establish any legal error on the part of the defendant which is susceptible to judicial review.[44]
[44]Defendant’s Outline of Submissions in Support of Summary Dismissal of the Proceeding dated 24 February 2015.
The grounds in the Originating Motion are divided into groups:
(a) first, relating to orders in the nature of mandamus (although no actual order in that nature is sought);
(b) second, relating to the defendant having abused the exercise of discretionary powers, acted or omitted to act in good faith or otherwise conducted the investigation by delegates who are biased;
(c) third, orders in the nature of prohibition staying the defendant issuing a notice of decision under s 4.4.14 of the Act until certain conditions have been satisfied; and
(d) fourth, certain questions to be answered.
The particular grounds for the mandamus orders are discrete and refer to a failure to take into account, or into sufficient account, relevant considerations, namely:
(a) a failure or refusal of the defendant to put ‘the relevant parts’ of the plaintiff’s responses to the defendant dated 18 July and 8 September 2014 to the clients for comment;
(b) a failure or refusal of the defendant to obtain a copy of the complainant’s ‘book draft’ called ‘Banks and Money’ which contains a record of some of the advice given by the plaintiff to the complainants; and
(c) a failure or refusal of the defendant to obtain a copy of the Draft Further Amended Statement of Claim from the complainants which the plaintiff gave to them in November 2012.
Mandamus[45]
[45]Originating Motion para 1(a)(i).
The Submissions Ground
The first mandamus ground is that the plaintiff seeks to have the defendant provide submissions made by the plaintiff to his former clients, the complainant, and to seek the complainant’s response before completing the investigation.[46] The submissions in question were given by the plaintiff on two dates, 18 July and 8 September 2014. The submission of 18 July 2014 (purported exhibit JLB-66) is 201 pages, single spaced, (with its exhibits) comprising a potpourri of submissions, extracts from correspondence sent or received relating to the clients litigation, extracts and references to authorities and legislation and references to such things as a conversation with a Members Advocate from the Law Institute of Victoria (‘LIV’) regarding the clients complaint the subject of investigation by the defendant.
[46]Ibid.
The submission dated 8 September 2014[47] consist of 9 pages, single-spaced, ending:
I would greatly appreciate a detailed 4-5 page summary of the Commissioner’s preliminary findings upon reviewing my response to the Commissioner dated 18 July 2014. If the Commissioner decides on a course of action other than that submitted by me on pages 181-182 of my response, I would greatly appreciate two weeks to consider the Commissioner’s detailed 4-5 page response, after which I would like to meet with Ms Smith at a mutually convenient time to further attempt to resolve the matter.
Finally, I thank you for the extra time to complete this response and previous responses. I look forward to hearing from you in due course.
[47]Purported exhibit JLB-70.
The course of action that the plaintiff had proposed at pp 181-182 of his response of 18 July 2014 was that the defendant withdrew his finding that there was a reasonable likelihood the Tribunal would find him guilty of unsatisfactory professional conduct or professional misconduct and take no further action in relation to the complaint on the basis of his general competence and diligence and the fact that he had no substantiated complaints against him in the past 12 years of legal practice.
The plaintiff does not identify any duty owed by the defendant to take this course. Further, even if there were a duty, now that the decision has been made by the defendant the relief sought would be of no utility.
The defendant also submits that this ground of review misapprehends the defendant’s task. The Act gives to the defendant the sole discretion to decide whether there is, or is not, a reasonable likelihood that the Tribunal would make a particular finding based upon the material the defendant considers relevant. It is the defendant’s decision whether he would be assisted in this task by putting certain information to the complainant.
I agree with the submission made on behalf of the defendant. There is no place in the course of an investigation of a complaint by the defendant for the Court to interfere by requiring the defendant to take any particular course of action in carrying out his investigation under the Act. This would amount, in this case, to requiring the defendant to perform the duty, assuming there were one, in a particular manner, which is not, as I have pointed out above, available by the mandamus remedy.
The Banks and Money Ground
The next mandamus ground[48] advanced by the plaintiff is that despite demands made by him to the defendant, the defendant refuses or fails to obtain a copy of the complainant’s book draft called ‘Banks and Money’ which the plaintiff says contains a record of some of the legal advice the plaintiff has given to the clients. The defendant rightly points to the fact that the nature of that advice has not been identified nor has the particular relevance of that advice to the defendant ’s investigation been made clear. Once again, the defendant submits that he has the sole discretion of assessing what information is necessary and appropriate to obtain in the conduct of an investigation. I repeat what I said above. It is not in my view open to the plaintiff to seek, in effect, to interfere with the manner of the investigation undertaken by the defendant in this way.
[48]Originating Motion para 1(a)(ii).
The Further Amended Statement of Claim Ground
The next mandamus ground[49] the plaintiff advances is that the defendant has refused or failed to obtain a copy of the draft Further Amended Statement of Claim from the clients which the plaintiff gave to them in early November 2012. The defendant says that this is a very perplexing complaint as he has in his possession a draft Further Amended Statement of Claim dated 9 November 2012 and prepared for mediation purposes only. That document was referred to in the defendant ’s correspondence of 20 May 2014 which is exhibited to the affidavit filed on behalf of the defendant.[50]
[49]Originating Motion para 1(a)(iii).
[50]Affidavit of Tina Stagliano sworn 20 February 2015, exhibit TS-1 p. 1.
Even if it were not so perplexing, it would not, for the reasons I have already given, be a proper ground for interfering with the manner of the investigation undertaken by the defendant.
The Legal Basis of the Charges Ground
The next mandamus ground[51] seeks an order compelling the defendant to inform or sufficiently inform the plaintiff of the elements of or legal bases for the possible charge under r 12.2 of the PCP Rules and the possible common law charge. The defendant submits that it is not his role to provide legal advice to the plaintiff. I agree. Any legal practitioner in the position of the plaintiff should obtain their own legal advice in a matter of this kind.
[51]Originating Motion para 1(a)(iv).
The Compliments Ground
The next mandamus ground[52] seeks to compel the defendant to consider or sufficiently consider various compliments the plaintiff says that the clients gave him during the course of their relationship. It may be that what the plaintiff says about this is that if the defendant considered or sufficiently considered these compliments he may not be the subject of a charge. Whatever may be the meaning of ‘sufficiently consider’ this is again an attempt by the plaintiff to have the Court get involved in, or interfere with, the manner of the conduct by the defendant of an investigation of a complaint. The Act prescribes with some particularity the procedure the defendant is to follow and the consequences that they lead to by way of referral to the Tribunal or otherwise. There would need to be a substantial denial of procedural fairness by the defendant to warrant the intervention by the Court in an investigation undertaken by him. This is not such a case.
[52]Originating Motion para 1(a)(v).
In any event, whether a client has complimented a practitioner is irrelevant to whether the practitioner’s conduct has fallen short of the standards applicable. The meeting of these standards by the plaintiff are matters of law based on an objective assessment of the conduct of the practitioner, about which the complainant is unlikely to be skilled.
The Failure of the Complainants to Raise Concerns Ground
The next mandamus ground[53] is that the plaintiff seeks to compel the defendant to consider or sufficiently consider the failure of the complainants to raise concerns about the quality or standard of the legal advice the plaintiff gave them. The defendant submits that, like the previous ground, this is again an attempt by the plaintiff to have the Court get involved in, or interfere with, the manner of the conduct by the defendant of an investigation of a complaint. I agree. Further, this ground misconceives the objective nature of the defendant’s task. It is not available as a ground of review.
[53]Originating Motion para 1(a)(vi).
The Attempts to Renegotiate the Retainer Ground
The next mandamus ground[54] is that the plaintiff seeks to compel the defendant to consider the complainants’ attempts to renegotiate the retainer at reduced rates so that the plaintiff could continue to act in the matter. The defendant submits, and I agree, that such conduct cannot have any relevance to whether the practitioner has satisfied his professional obligations.
[54]Originating Motion para 1(a)(vii).
The Complainants Unreliability and Medical Condition Grounds
The next two mandamus grounds[55] seem to be that the defendant has failed to consider or sufficiently consider the unreliable behaviour of the complainant and/or his medical condition and that if the defendant had done so he would not charge the plaintiff with professional misconduct or unsatisfactory conduct. The defendant submits that the vice in these grounds is self-evident. The applicable standard by which the conduct of the practitioner is to be assessed in the Tribunal, and thus by the defendant, is an objective standard. This ground presupposes that the defendant has not assessed, or is unable to assess, the quality of evidence available or reach a relevant state of satisfaction for the purposes of s 4.4.13 of the Act. There is no evidence to support the supposition. I add, this ground is another attempt by the plaintiff to have the Court get involved in, or interfere with, the manner of the conduct by the defendant of an investigation of a complaint.
[55]Originating Motion para 1(a)(viii and ix).
The Inconsistent Advice Ground
The next mandamus ground[56] is the alleged failure or refusal of the defendant to consider or sufficiently consider that the defendant has given the plaintiff inconsistent advice concerning the legal bases for the plaintiff’s failure to comply with r 12.2 of the PCP Rules. The defendant points out that it is quite unclear what the alleged inconsistent advice comprises and, even if the allegation could be sustained, why it would entitle the plaintiff to an order in the nature of a mandamus. I agree. I can find no relevant content to this ground even if there was a decision capable of review.
[56]Originating Motion para 1(a)(x).
The Discovery Grounds
There are then five mandamus grounds[57] that seem to require the defendant to give discovery or pre-litigation disclosure to the plaintiff of communications between him and Counsel retained in relation to the complaint. The defendant submits that the premise for these grounds appears to be that a failure to provide such discovery amounts to a judicially reviewable legal error. If the plaintiff intends to claim that he has not been afforded procedural fairness, then that claim should be set out clearly with particularity. This has not been done. The defendant maintains that the material supplied to the plaintiff[58] has accorded the plaintiff with the required procedural fairness.
[57]Originating Motion para 1(a)(xii, xiii, xiv, xv, xvi).
[58]Exhibited to the affidavit of Tina Stagliano.
My review of the extensive material supplied by the defendant to the plaintiff over a lengthy period reveals that he has afforded the plaintiff every reasonable and fair opportunity to consider the bases on which the defendant has reached the position stated in the Murray Letter and that material has been sufficient to enable the plaintiff to advance argument against that conclusion. This is the extent of the procedural fairness to which the plaintiff is entitled in this case.[59]
[59]Murray v Legal Services Commissioner [1999] NSWCA 70, (1999) 46 NSWLR 224 at [90].
I agree with the submission of the defendant that during an investigation, a practitioner the subject of the investigation has no right to know all of the information available to the defendant and, in particular, the advices given by Counsel engaged by the defendant to advise and assist the defendant in the investigation. The obligation to afford procedural fairness does not go that far.
Abuse of Power Grounds
The plaintiff makes approximately six broad allegations of abuse by the defendant of his discretionary power, in that the defendant has acted ‘or omitted to act’ in a manner which is not in good faith, or otherwise conducted or is conducting an investigation by delegates who are biased against him, and so on. In support of the grounds the plaintiff refers back to the grounds, referred to in support of his claims for an order in the nature of mandamus and leaves the door open to further grounds that are unspecified.[60] He also relies on matters set out in a letter to the defendant dated 14 November 2014.
[60]See Originating Motion para 1(b) and the words ‘which include, but are not limited to, the following grounds’.
It is quite unclear how the plaintiff propounds these grounds and what relief is claimed to depend on them. In his affidavit of 5 March 2015, filed pursuant to leave given at the conclusion of the hearing on 3 March 2015, the plaintiff advances arguments that the further justification provided by the defendant (in his letter dated 3 June 2014[61]) for the view expressed in paragraph 9 of the Murray Letter are misconceived. In the letter of 3 June 2014, the defendant had put grounds to support his view that there has been a possible failure by the plaintiff to comply with rule 13.1 of the PCP Rules by the plaintiff preparing a Further Amended Statement of Claim that contained misconceived claims that were suggested by the complainants. It appeared from the material referred to in the defendant’s letter of 3 June 2014 that the plaintiff acted as a mere mouthpiece for the client and failed to exercise the independent forensic judgments called for during the case.
[61]Exhibit TS-1 to the Stagliano affidavit, pp. 4-7.
I can find no justification for the argument advanced by the plaintiff that the material to which the defendant referred to support his view, and which material the plaintiff sought to challenge as a matter of fact, shows the defendant has abused his discretionary power. The defendant may be wrong, in his views (and I express no views to whether he is or was), but if he was wrong that is not a basis for this Court to stop him coming to a decision under s 4.4.13 of the Act in relation to the conduct the subject of that view. That he might be wrong does not show an abuse of power, in my view.
Prohibition Grounds
The plaintiff seeks orders in the nature of prohibition that the defendant be prohibited, or stayed, from making a decision under s 4.4.13 of the Act. The plaintiff has failed to demonstrate that the defendant is acting on any error of law which would justify an order in the nature of prohibition. The particular bases for these orders are as follows, together with my comments:
(a) the plaintiff seeks that his complaint regarding the professional conduct of certain officers of the defendant be investigated preferably by the LIV. There is no proper basis for an order of this kind and in any event, whether or not a matter is referred to the LIV is a matter for the exercise of the discretion of the defendant;
(b) the plaintiff seeks that the particular investigation staff cease their involvement in the investigation, because of their alleged abuse of the exercise of discretion and acts or omissions not performed in good faith a set out in paragraphs 1(a)(i)-(xvi) (the mandamus grounds) and 1(b)(i)-(vi) (the error grounds) of the Originating Motion. The Court cannot interfere within the administrative processes in which the defendant undertakes an investigation. If there were any evidence of any bias, which there is not, the Court may require an investigation to be recommenced; and
(c) the plaintiff seeks that the defendant remedy the alleged deficiencies in the investigation identified in the mandamus grounds. This ground is not sustainable for the reasons I have already given.
The Questions Sought to be Answered
The plaintiff sets out the questions to be answered by the Court in consequence of this range of relief sought. The defendant submitted that questions amount to asking the Court for legal advice which is neither appropriate nor permissible in the exercise of judicial power.
The plaintiff submitted that the questions were a part of the relief or remedy sought in the nature of a mandamus, which the Court has jurisdiction to grant under r 56.01 of the Rules.[62]
[62]Written Submission of the plaintiff dated 8 March 2015 in accordance with the order made on 3 March 2015.
The terms of the questions contradict this submission. Advice is sought as to the elements of various charges that might be brought against him (questions 3(a) and (b)), as to how long after a solicitor ceases to act for a client does the solicitor have to revise the file (3(c)), whether a solicitor’s file must be self-contained in order to comply with the solicitor’s common law obligations (3(d)), to what extent must legal advice to the client be written (3(e)) and the confidential question, which was concerned with the extent to which legal advice must be written where the clients suffer various disabilities, including in the case of one of them, illiteracy?
I agree with the submission of the defendant that there is no basis established for the plaintiff, in an application of this kind, to ask questions such as these.
Discontinuance ‑ Submissions and Consideration
The plaintiff submitted that the actions of the defendant have rendered the proceeding effectively useless. The action referred to is not revealing before 22 December 2014 a defence that the defendant had to the plaintiff’s request that his submissions dated 18 July and 8 September 2014 in response to the Murray Letter be provided to the complainants for comment.
The defence to which the plaintiff refers is that the defendant does not consider it necessary to put those submissions to the complainants because he does not intend to rely upon their evidence to dispute the veracity of those submissions.
By reference to the authorities that I have summarised above in relation to the applicable law regarding discontinuance, and others authorities that need not be mentioned, the plaintiff submitted that this conduct of the defendant enlivened the power of the Court to ‘otherwise order’ under r 63.15 of the Rules.
The plaintiff also submitted that there were a number of letters written by the defendant that were the subject of the without prejudice privilege that needed to be admitted into evidence under s 131 of the Evidence Act 2008 (‘the Evidence Act’). Otherwise, the evidence submitted on behalf of the defendant in the Stagliano affidavit would be misleading. The plaintiff has, against the protest of the defendant, unilaterally exhibited that correspondence to his affidavit sworn on 26 February 2015. The plaintiff also submitted that some of the defendant’s correspondence, in particular a letter dated 12 February 2015, was prepared in furtherance of a deliberate abuse of power by the defendant. The premise for this submission was that without reference to the without prejudice communications the Court would not be aware that the defendant had concealed the existence of the defence.[63]
[63]Plaintiff’s Outline of Submissions dated 26 February 2015 at [9].
The plaintiff’s Outline of Submissions dated 26 February 2015 address at considerable length various arguments in support of these submissions. They are responded to at length in the defendant’s Outline of Submissions in Reply dated 24 March 2015. It is not necessary to set out all of those arguments.
It is sufficient to set out in a summary form my views as to the plaintiff’s submissions.
First, the proposition that by the defendant revealing the ‘defence’ the plaintiff’s proceeding is rendered useless proceeds upon a false premise; namely, that there is merit in the claims made in the proceeding requiring a defence of the kind referred to. For the reasons the defendant submitted, to which I have referred above and with which I agree, the proceeding is without merit;
Second, there are, in any event, a large number of grounds set out in the Originating Motion that have nothing whatever to do with the failure or refusal of the defendant to send the submissions to the complainants for comment,[64]. These grounds and questions are wide ranging and travel far beyond the subject matter of the so called ‘defence’ revealed by the defendant.
[64]Paragraphs 1(a)(ii) to (xvi), 1(b)(i)-(v) and 2 (a), (b), (c), (e), (f) and (g), and all of the questions in paragraph 3, of the Originating Motion.
Third, it is a misconstruction of the grounds in the Originating Motion for the plaintiff to contend that the defendant’s conduct in revealing the so called ‘defence’ effectively rendered the proceeding useless. In my view, the proceeding was always without any objective merit and had the plaintiff obtained competent independent legal assistance following his appearance on 16 December 2014, as the learned Associate Judge who dealt with it on that day recommended, then the proceeding would then have been brought to an end without the unnecessary argument that has been occasioned since then.
Fourth, it is unnecessary to deal at length with the application by the plaintiff to apply s 131(2)(g), (i) and (k) of the Evidence Act because the very basis upon which it is submitted that these without prejudice communications should be admitted into evidence is itself without any proper foundation. As the affidavits of the plaintiff clearly reveal, the defendant told him that it was not necessary for the purposes of the defendant making a decision under s 4.4.13 of the Act for the defendant to obtain the comments of the complainants upon the submissions of the plaintiff dated 18 July and 8 September 2014. Whether that was because the defendant did not intend to rely upon the evidence of the complainants to dispute those submissions or because of some other reason is, in my view, irrelevant.
The assessment made by the defendant of the complaint made concerning the plaintiff’s conduct of proceedings on behalf of the complainants turns upon an objective assessment of whether or not there has been a contravention of the duties of the plaintiff as their legal adviser and advocate. The submission of the plaintiff made on 18 July 2014 is, as I have noted, very long, discursive and difficult to understand. I ask rhetorically, would it have made any difference had the defendant informed the plaintiff that it did not propose to ask the complainants for their comments on that submission because it would be likely to confuse them and be unproductive?
It might be said that had the plaintiff been informed that this was a reason that the defendant did not put the submission to the complainants, that this was a good ‘defence’ to his complaints that the submission should have been submitted to the complainants for comment. That would have been equally irrelevant because it is enough for the plaintiff to know that the defendant considered it not necessary to provide the submissions to the complainants for comment.
For the plaintiff to attempt to compel the defendant to take the course of sending the submissions to the complainants for their comment is squarely within the field of the ‘manner’ in which the defendant undertakes the performance of the public duty, that of investigating the complaint, cast upon him by the Act. An order in the nature of mandamus is not, as I have said, available to compel the exercise of the investigation in any particular manner. But that is what the plaintiff has consistently sought to achieve.
The reliance by the plaintiff on the Model Litigant Guidelines and the provisions of the CPA and s 6.3.11(1) and (3) of the Act to support a duty on the defendant to disclose to the plaintiff or the Court privileged correspondence is difficult to understand and, if I understand it correctly, misconceived. It seems to be put that these provisions are relevant to him receiving a fair hearing before the Tribunal of the charges to be brought by the defendant and in this proceeding. The plaintiff submits that right to a fair hearing is a right within s 131(2)(i) of the Evidence Act which then applies to render all the privileged correspondence admissible.
The flaw in the reasoning is immediately apparent. The defendant has been carrying out an investigation under specific provisions of the Act. To argue, as I understand the plaintiff to do, that the making of the communication affects his right to a fair hearing in the Tribunal before it has begun is misconceived. There are procedures in the Tribunal which deal with and protect his right to a fair hearing. To argue that it affects his right to a fair hearing in this proceeding assumes he has a meritorious claim in this proceeding and that in some unspecified way the withholding of the privileged communications affect his right to a fair hearing. That is not this case. The proceeding is without merit. In any event, the plaintiff has not elaborated how the hearing of the applications presently before me are affected otherwise than by the effect of the withholding of the purported ‘defence’.
The plaintiff also identifies other asserted rights that he claims are impacted by withholding the privileged material that are relevant to the application of s 131(i) of the Evidence Act.
He points to his natural justice right to know the allegations against him in the Tribunal. These are clearly set out in the Murray Letter and in the correspondence given to him when the defendant notified him of his decision. He responded with hundreds of pages of submissions. If he does not know the allegations yet, then that is his fault. Understanding them is another matter. Further particulars may well be called for in the Tribunal and that is the proper place in which to raise that matter.
Another right or interest he claims is impacted by withholding the privileged correspondence is his impecuniosity. This is regrettable, but gives rise to no right for the purposes of s 131(i) of the Evidence Act.
Another right he claims is affected is his right to practice law. That right ‑ or perhaps more appropriately, privilege, – is in no way shown to be affected by withholding the privileged correspondence.
Another right is his claim to be treated fairly and in good faith by the defendant pursuant to s 6.3.11(1) of the Act. I will not stay to recite the terms of that provision. It is enough to say that this provision deals with the immunity from suit of the defendant and his delegates. It has nothing to do with the manner in which he is treated by the defendant.
Conclusion
The material advanced by the plaintiff reveals no arguable case for relief of any kind. The proceeding has no real prospects of success and it should be summarily dismissed on the defendant’s application. No valid reason has been shown why the defendant’s costs should not be paid by the plaintiff.
There is no arguable basis for the proceeding to be discontinued otherwise than on payment by the plaintiff of the defendant’s costs. The plaintiff has not satisfied me that the costs should not be paid by him.
I will therefore order that the proceeding is dismissed with costs.
5
15
0