Beling v Victorian Legal Services Commissioner
[2024] VSCA 49
•27 March 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL | |
| S EAPCI 2023 0047 | |
| JOEL LORENSZ BELING | Applicant |
| v | |
| VICTORIAN LEGAL SERVICES COMMISSIONER | Respondent |
| S EAPCI 2023 0050 | |
| JOEL LORENSZ BELING | Applicant |
| V | |
| VICTORIAN LEGAL SERVICES COMMISSIONER | Respondent |
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| JUDGES: | BEACH and NIALL JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 March 2024 |
| DATE OF JUDGMENT: | 27 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 49 |
| JUDGMENT APPEALED FROM: | In proceeding S EAPCI 2023 0047, [2023] VSC 213 (Ginnane J) In proceeding S EAPCI 2023 0050, [2023] VSC 212 (Ginnane J) |
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LEGAL PRACTITIONERS – Disciplinary charges against a legal practitioner – Application for leave to appeal Trial Division’s refusal to extend time for applicant to seek leave to appeal VCAT orders – No merit in any proposed ground of appeal – Leave to appeal refused.
JUDICIAL REVIEW – Investigation of legal practitioner’s conduct – Application for leave to appeal decision not to extend time to appeal Associate Judge’s orders – No merit in any proposed ground of appeal – Leave to appeal refused.
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| Counsel | |||
| Applicant: | In person | ||
| Respondent: | Mr MG McNamara | ||
| Solicitors | |||
| Applicant: | |||
| Respondent: | White Cleland | ||
BEACH JA
NIALL JA:
Between August 2012 and January 2013, the applicant acted as a legal practitioner for Tracie and Peter Hanna in a proceeding they commenced against the Australian and New Zealand Banking Group Limited (‘ANZ’) in the Federal Magistrates’ Court. On 21 February 2013, Mrs Hanna lodged a complaint with the respondent against the applicant. The respondent then commenced an investigation into the applicant’s professional conduct.
On 17 November 2014, during the respondent’s investigation into his professional conduct, the applicant commenced a judicial review proceeding seeking orders in respect of the respondent’s conduct of its investigation (‘the judicial review proceeding’). Following the conclusion of that investigation, an Associate Judge of this Court summarily dismissed the judicial review proceeding.[1] Almost four years later, the applicant applied for an extension of time to appeal that decision. A judge of this Court dismissed that application.[2]
[1]Beling v Legal Services Commissioner [2016] VSC 180.
[2]Beling v Victorian Legal Services Commissioner (No 2) [2023] VSC 212.
The investigation led to a number of charges of professional misconduct, and in 2017, a Senior Member of the Victorian Civil and Administrative Tribunal (‘VCAT’) found the applicant guilty of professional misconduct and unsatisfactory professional conduct,[3] and subsequently imposed a penalty on the applicant.[4] In October 2019, the applicant sought leave to appeal VCAT’s orders in this Court (‘the disciplinary proceeding’). A Judicial Registrar of this Court refused that application.[5] In May 2020, the applicant sought to appeal the Judicial Registrar’s orders. The judge dismissed that appeal.[6]
[3]Beling v Victorian Legal Services Commissioner [2017] VCAT 1022.
[4]Beling v Victorian Legal Services Commissioner [2017] VCAT 1576.
[5]Beling vVictorian Legal Services Commissioner [2020] VSC 200.
[6]Beling v Victorian Legal Services Commissioner (No 2) [2023] VSC 213.
The applicant now seeks leave to appeal against certain orders of the judge in both the disciplinary proceeding and the judicial review proceeding. The applicant also makes a number of other applications, namely an application for an extension of time for leave to appeal the conviction and penalty decisions by the Senior Member of VCAT, an application for leave to adduce fresh evidence, an application for leave to file and serve subpoenas on Mr and Mrs Hanna, an application for joinder of VCAT as a second defendant, an application for leave to file and serve interrogatories and notices to admit on VCAT, an application for leave to serve interrogatories on the respondent, an application to amend his notice of appeal and applications to stay the two decisions of the Senior Member of VCAT and the decision of the Associate Judge.
Background
In December 2014, the respondent concluded its investigation into the applicant’s conduct, finding that there was a reasonable likelihood that VCAT would find the applicant guilty of professional misconduct. As a result of that finding, the respondent was required to apply for orders against the applicant in VCAT. Given the termination of the investigation, in early 2015, the applicant sought leave to discontinue the judicial review proceeding, while the respondent sought orders that the proceeding be summarily dismissed. On 22 April 2016, the Associate Judge summarily dismissed the proceeding, finding the proceeding to be without merit.
On 12 July 2017, the Senior Member of VCAT found the applicant guilty of one charge of professional misconduct at common law and one charge of unsatisfactory professional conduct. The charges which were the subject of the findings related to various matters, including allegations that the applicant had prepared a defective pleading, failed to give adequate advice and did not provide sufficient costs disclosure to Mr and Mrs Hanna.
On 27 September 2017, the Senior Member delivered his decision on penalty, which included that the applicant was reprimanded, ordered to pay a fine of $10,000 to the Victorian Legal Services Board, and required to practise only under supervision for three years, to pay the Commissioner’s costs in relation to the two charges in respect of which he was found guilty, and to obtain ten extra CPD points from the time of the decision.
On 1 October 2019, the applicant commenced a proceeding in this Court seeking leave to appeal the orders of VCAT finding him guilty of the disciplinary charges and imposing the penalty. The proceeding was over 25 months out of time in respect of the findings of guilt and over 22 months out of time in respect of the penalty decision.[7] On 22 April 2020, the Judicial Registrar refused to grant an extension of time and dismissed the applicant’s notice of appeal with costs. The Judicial Registrar considered that the applicant had not provided a sufficient explanation for his delay and had not established that there was sufficient merit in his case to warrant the grant of an extension.[8]
[7]Beling vVictorian Legal Services Commissioner [2020] VSC 200, [11].
[8]Beling vVictorian Legal Services Commissioner [2020] VSC 200, [88].
On 22 April 2020, in the judicial review proceeding, the applicant filed a notice of appeal in which he sought an extension of time to appeal the Associate Judge’s orders, almost four years out of time.
On 3 May 2020, in the disciplinary proceeding, the applicant appealed the Judicial Registrar’s orders declining to grant an extension of time.
The disciplinary and judicial review proceedings were listed to be heard together by a judge of this Court. Prior to the hearing, the applicant sought leave to join VCAT as a second defendant in the proceedings, to serve interrogatories directed at VCAT, to file and serve a notice to admit on VCAT and to file amended notices of appeal. Other than granting leave to file amended notices of appeal, the judge refused those applications. The applicant unsuccessfully sought leave to appeal those interlocutory decisions in the Court of Appeal and in the High Court.[9]
[9]Beling vVictorian Legal Services Commissioner [2021] VSCA 257; Beling vVictorian Legal Services Commissioner [2021] HCASL 239.
In the disciplinary proceeding, on 24 April 2023, the judge dismissed the applicant’s appeals against the Judicial Registrar’s orders and, on 19 June 2023, the judge ordered that the applicant pay the respondent’s costs of the proceeding.[10] In deciding whether to extend time, the judge concluded that the applicant had not provided an adequate explanation for his delay in commencing the proceeding and that the 18 questions of law and attached grounds did not identify any arguable error by VCAT. The judge also dismissed the applicant’s summons seeking leave to adduce further evidence.
[10]Beling v Victorian Legal Services Commissioner (No 2) [2023] VSC 338.
In the judicial review proceeding, on 24 April 2023, the judge dismissed the applicant’s application for an extension of time in which to appeal the Associate Judge’s orders, finding that the applicant had not adequately explained his very great delay and that none of the errors alleged in the proposed grounds of appeal were arguable. The judge also refused a number of interlocutory applications made by the applicant and ordered that the applicant pay the respondent’s costs of the proceeding.[11]
[11]Beling v Victorian Legal Services Commissioner (No 2) [2023] VSC 337.
Principles regarding the extension of time to commence proceedings
In considering whether to exercise the Court’s discretion to extend time to commence an appeal or an application for leave to appeal, the judge was required to take into account a number of factors, including the length of the delay, the reasons for the delay, and the extent of any prejudice suffered by the respondent if the extension of time were granted.[12] Further, a court will not grant an extension of time if ‘the appeal is so devoid of merit that it would be futile to extend time’.[13]
[12]Trkulja v Dobrijevic [2015] VSCA 281, [27].
[13]Jackamarra v Krakouer (1998) 195 CLR 516, 521 (Brennan CJ and McHugh J).
An overview of the applicant’s case
The applicant is a legal practitioner. Although he appears for himself, and recognising that this might entail some loss of objectivity, the applicant is not entitled to the leeway generally accorded to unrepresented litigants. On numerous occasions the applicant has alleged that the respondent, officers within her office, and judicial officers including a former Chief Justice of this Court and Derham AsJ have been involved in a criminal conspiracy to doctor court records. There is no foundation for these allegations at all, yet they have been continually repeated, including in oral submissions in this Court. They pervade the applicant’s entire case.
Moreover, several of these allegations proceed from the fundamental misconception that the Court was required to accept all evidence led by the applicant or that acquiescence to the applicant’s forensic decisions by the respondent constituted an admission as to the truth of the applicant’s allegations.[14]
[14]See Beling vVictorian Legal Services Commissioner [2021] VSCA 257, [20].
The applicant’s grounds and submissions are prolix, hyperbolic and in many respects fanciful. It is to be remembered that in each proceeding the applicant required an extension of time and that the jurisdiction sought to be invoked was confined to legal error: in the context of judicial review or an appeal on a question of law from VCAT. The applicant has had the benefit of reasons in each case by two judicial officers. The reasons of the trial judge are detailed and exemplary. Yet the applicant made no viable attempt to locate error in the judge’s reasons.
Although it is customary, and it will usually be necessary, to have some regard to the merits of an underlying proceeding when an extension of time is sought, such an occasion does not require the full-blown hearing of the grounds. Were that to be so, the need for an extension of time would be illusory.
The disciplinary proceeding
The applicant contends that the judge erred in exercising the discretion to extend time for the applicant to appeal from VCAT’s orders on a range of proposed grounds including, by way of summary:
(a)an alleged failure to consider the reasons for the applicant’s delay in applying for an extension of time, including by reference to the applicant’s evidence and submissions (grounds 1 and 3), his impecuniosity and lack of legal representation (ground 2), the prejudice to the respondent (ground 4) and the deed of settlement between the parties (ground 5);
(b)an alleged failure to consider the applicant’s submissions and evidence in relation to VCAT’s finding of guilt with respect to charges 1 and 3 (grounds 6 and 7), VCAT’s decision in relation to his pre-trial applications (ground 8), the test VCAT applied to determine whether the pleading he had prepared had a proper basis (ground 9), VCAT’s treatment of an expert report (ground 10), VCAT’s interpretation of various instruments and evidence (grounds 11 and 12), the drawing of inferences adverse to the respondent (ground 14), whether VCAT acted in excess of or without jurisdiction (ground 15), the applicant’s submissions relevant to VCAT’s findings of guilt (grounds 16 and 17), the applicant’s allegation that VCAT penalised him for future conduct (ground 18), the charges in respect of which his penalty was assessed (ground 19), matters relevant to the restriction of his practising certificate (ground 20), whether there were exceptional circumstances justifying no order as to costs (ground 21), the applicant’s submissions on costs (ground 22) and both parties’ submissions as to costs (ground 25);
(c)an alleged error in the judge’s finding as to whether VCAT amended charge 1 (ground 13);
(d)an alleged failure by VCAT to give sufficient reasons as to costs and penalty (ground 23) and an alleged failure by the Judicial Registrar to give sufficient reasons for the costs order (ground 24); and
(e)an alleged failure to consider the applicant’s evidence and submissions in relation to his application to join VCAT in both proceedings (ground 26), to file and serve a notice to admit on VCAT (ground 27), to serve interrogatories (grounds 28 and 29) and to amend his notice of appeal (ground 30).
The judge gave detailed reasons for rejecting these grounds. The applicant has supplied no reason to suggest that the judge misunderstood the facts and the law, misdirected himself or came to an erroneous result. In fact, the decision of the judge was patently correct.
None of the proposed grounds of appeal are arguable. To the extent that several of the proposed grounds relate to procedural matters dealt with by the judge, no basis to impugn those aspects of the decision has been established. The grounds that relate to the judge’s decision regarding delay and the applicant’s prospects of success are entirely without merit. Some of the grounds depend on factual allegations that this Court has previously found to lack evidentiary support.[15]
[15]Beling vVictorian Legal Services Commissioner [2021] VSCA 257, [19]–[20]; Beling vVictorian Legal Services Commissioner [2021] VSCA 256, [65], [100].
The judge properly applied the principles regarding applications for an extension of time and no basis for disturbing the judge’s exercise of the discretion to refuse an extension of time has been identified.
We would dismiss the application for leave to appeal in relation to the disciplinary proceeding.
The judicial review proceeding
The applicant attacked the judge’s decision not to grant an extension of time to appeal in the judicial review proceeding on a range of grounds including, by way of summary:
(a)an alleged failure to consider the reasons for the applicant’s delay in applying for an extension of time, including by reference to the applicant’s evidence and submissions (grounds 1 and 3), his impecuniosity and lack of legal representation (ground 2), the prejudice to the respondent (ground 4) and the deed of settlement between the parties (ground 5);
(b)alleged errors in the decision to refuse the applicant leave to discontinue the proceeding (ground 6), the decision to grant summary judgment (ground 7), and the refusal of applications for orders in the nature of mandamus (ground 8), certiorari (ground 9) and prohibition (ground 10);
(c)other alleged errors in the decision in relation to waiver of legal professional privilege (ground 11), alleged fraud and other conduct by the respondent (grounds 12, 15 and 16), alleged non-compliance with statutory requirements in relation to the respondent’s notice of decision (ground 13), costs (grounds 14 and 26), other matters raised by the applicant’s originating motion (ground 17) and the application of the Evidence Act 2008 (ground 18);
(d)an alleged failure to provide sufficient reasons (grounds 19 and 20); and
(e)an alleged failure to consider the applicant’s evidence and submissions in relation to his applications to join VCAT in both proceedings (ground 21), to file and serve a notice to admit on VCAT (ground 22), to serve interrogatories (grounds 23 and 24) and to amend his notice of appeal (ground 25), and both parties’ submissions as to costs (ground 27).
Again the judge gave exemplary reasons. There is an overlap in many of the grounds relied on in relation to the disciplinary proceeding. As with the disciplinary proceeding, several of the proposed grounds relate to procedural matters dealt with by the trial judge and, to that extent, we would reject them on the same basis. The grounds that relate to substantive matters are completely without merit. The applicant has not identified any basis to interfere with the judge’s exercise of the discretion not to grant an extension of time.
Further, by the judicial review application, the applicant sought review of an ongoing investigation into his conduct. As already noted, the proceeding was overtaken by the respondent’s conclusion of the investigation. In those circumstances, the parties agreed that the proceeding should conclude, although there was a dispute as to whether it should conclude by way of discontinuance or summary dismissal. Given that neither party desired for the proceeding to continue to trial, there was no injustice in the Associate Judge’s decision to summarily dismiss the proceeding.
The application for leave to appeal in relation to the judicial review proceeding must be dismissed.
Other applications
Given the applications for leave to appeal in respect of both proceedings are dismissed, there is no utility in dealing with the other applications made by the applicant. However, for completeness, we would observe that there was no merit in any of them, and specifically that there was no basis for the reception of any new evidence or the making of any of the other procedural orders sought by the applicant.
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