Beling v Victorian Legal Services Commissioner (No 2)

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
VICTORIAN LEGAL SERVICES COMMISSIONER	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 20 May 2022
DATE OF JUDGMENT:	24 April 2023
CASE MAY BE CITED AS:	Beling v Victorian Legal Services Commissioner (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 212

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JUDICIAL REVIEW – Investigation of legal practitioner’s professional conduct – Practitioner’s judicial review challenge to investigation – Associate Justice summarily dismissing proceeding – Appeal filed out of time – Lengthy extension of time required – Application for extension of time dismissed by Judicial Registrar – Appeal from Judicial Registrar’s orders – Appeal dismissed - Legal Practice Act 2004 s 4.4.13.

PRACTICE AND PROCEDURE – Application to appeal Judicial Registrar’s orders – Application to join parties, serve interrogatories and notice to admit and amend notices of appeal – Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	M G McNamara	White Cleland Pty Ltd

HIS HONOUR:

Background

Mr Joel Beling commenced this proceeding in 2014 seeking judicial review orders in respect of an investigation of his professional conduct as a legal practitioner by the defendant, the Victorian Legal Services Commissioner (‘the Commissioner’). The matter before the Court is Mr Beling’s appeal from orders of an Associate Justice summarily dismissing the proceeding.[1] Mr Beling sought an extension of time to appeal the Associate Justice's orders almost 4 years out of time.[2]
[1]Beling v Legal Services Commissioner [2016] VSC 180 (‘Reasons’).
[2]Supreme Court (General Civil Procedure) Rules 2015, r 77.06.2.(6).

Between August 2012 and January 2013, Mr Beling acted for Tracie and Peter Hanna in claims they commenced against the Australia and New Zealand Banking Group Ltd in the Federal Magistrates’ Court. Subsequently, Mrs Hanna sent a complaint about Mr Beling’s professional conduct to the Commissioner.

Following the investigation, the Commissioner laid disciplinary charges against Mr Beling under the Legal Profession Act 2004 (‘LPA') concerning his professional conduct. On 12 July 2017, the Victorian Civil and Administrative Tribunal (‘Tribunal’ or ‘VCAT’) found Mr Beling guilty of one count of professional misconduct and one count of unsatisfactory professional conduct.[3] Thereafter it imposed penalties on him.[4]
[3]Beling v Victorian Legal Services Commissioner [2017] VCAT 1022 (‘First Tribunal Decision’).
[4]Beling v Victorian Legal Services Commissioner [2017] VCAT 1576 (‘Penalty Decision’).

On 17 November 2014, during the investigation, Mr Beling commenced this proceeding. In early 2015, he sought leave to discontinue the proceeding and the Commissioner sought orders that it be summarily dismissed.

On 22 April 2016, an Associate Justice summarily dismissed the proceeding and ordered that Mr Beling pay the Commissioner's costs. His Honour concluded:[5]

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]Reasons [103]-[105].

In October 2019, Mr Beling commenced a second proceeding in this Court seeking leave to appeal VCAT’s orders made in respect of the disciplinary charges brought by the Commissioner.[6] That proceeding was also out of time. A Judicial Registrar heard Mr Beling’s application for an extension of time, refused it, dismissed the notice of appeal seeking to leave to appeal VCAT’s orders and ordered that Mr Beling pay the Commissioner’s costs. Mr Beling has appealed the Judicial Registrar's orders, and that appeal is the second proceeding before the Court (‘2019 proceeding’).
[6]First Tribunal Decision and Penalty Tribunal Decision.

The two proceedings were listed for hearing on 26 March 2021, but Mr Beling sought their adjournment so that he could make interlocutory applications and have them determined before the proceedings were heard. Mr Beling's first application sought leave to join the Tribunal as a second defendant to the proceedings. The second sought leave to serve interrogatories directed to the Tribunal. The third sought leave to file and serve a notice to admit on the Tribunal. He also sought leave to file amended notices of appeal.

I refused each of these applications by Mr Beling,[7] save that I granted him leave to rely on an amended notice of appeal from the Judicial Registrar’s orders. I ordered that Mr Beling pay the Commissioner's costs of the applications.
[7]Beling v Victoria Legal Services Commissioner [2021] VSC 390, [21]-[24].

On 13 September 2021, the Court of Appeal refused Mr Beling leave to appeal my orders.[8]
[8]Beling v Victorian Legal Services Commissioner [2021] VSCA 257.

The Court of Appeal endorsed the Associate Justice’s observation that this proceeding entailed an attempt to interrupt the Commissioner’s investigation under the LPA. It stated that, as the proceeding was for judicial review, the Court could only consider the lawfulness of the Commissioner’s conduct rather than its merits.[9] It stated that because Mr Beling had sought to discontinue this proceeding, there was no occasion for him to obtain further evidence.[10] In any event, there was no justification for the interrogatories. The Court concluded that the Commissioner’s consent to Mr Beling filing an amended pleading did not amount to an admission of the truth of the allegations contained in it.
[9]Ibid [25].
[10]Ibid [38].

The Associate Justice’s judgment

The Associate Justice noted that Mr Beling did not seek injunctive relief to restrain the Commissioner from completing the investigation. The Commissioner in his Notice of Decision of 23 December 2014 stated that he was satisfied that there was a reasonable likelihood that VCAT would find Mr Beling guilty of professional misconduct. Having reached that conclusion, the Commissioner was obliged to apply to the VCAT for order under the LPA in respect of Mr Beling’s conduct.[11]
[11]LPA s 4.4.13(2).

The Associate Justice described the following background to the applications before him. On 5 January 2015, Mr Beling informed the Court and the Commissioner that he intended to apply for leave to discontinue the proceeding. Because his application was not in the appropriate form and had not been filed, the Commissioner, acting out of ‘an abundance of caution’ applied to the Court to summarily dismiss the proceeding on the grounds that it had no real prospects of success and had no possible utility because the investigation had been completed. The Commissioner was prepared to consent to the proceeding being discontinued, but not on the basis that he pay Mr Beling's costs.

Mr Beling, on the other hand, argued that the Commissioner’s conduct had caused him to commence the proceeding. The Commissioner had failed to inform him that he would not be relying on the evidence of the Hannas to prove any of the charges against him. Had Mr Beling known that, he would not have commenced the proceeding.

The Associate Justice considered that Mr Beling's grounds of judicial review misapprehended the Commissioner's task as the Court could not interfere in the Commissioner’s investigation of a complaint by requiring him to take any particular course.

The Associate Justice concluded that Mr Beling's proceeding was without merit.[12]
[12]Reasons [89].

Following the Court of Appeal’s decision, Mr Beling’s appeal from the Associate Justice’s orders was listed for hearing on 5 October 2021. However, on 1 October 2021, Mr Beling sought special leave to appeal the Court of Appeal’s orders to the High Court. Therefore, I adjourned the appeal until 9 December 2021 and then, because the special leave applications had yet to be determined, until 19 May 2022, by which time the High Court had refused Mr Beling’s application for special leave to appeal.

Mr Beling’s further interlocutory applications

At the commencement of the hearing on 19 May 2022, Mr Beling again made interlocutory applications seeking substantially similar orders to those refused in 2021 based on ‘new facts and circumstances’.[13] He sought leave to join VCAT as second defendant, amend the notices of appeal, serve a notice to admit and interrogatories on VCAT and serve interrogatories on the Commissioner. The Commissioner opposed these applications.
[13] Plaintiff's summons filed 20 May 2022, [3].

The application to join VCAT as a party

Mr Beling argued that VCAT should be joined as second defendant because it, and the Commissioner, had engaged in a common enterprise to improperly and unlawfully find him guilty of professional misconduct. He alleged that the Commissioner conspired with VCAT to tamper with the client files that were the subject of the professional disciplinary proceedings against him and to mislead an expert witness. The Commissioner, by not responding to his application had conceded it.[14]
[14]Transcript of Proceedings, Beling v Victorian Legal Services Commissioner (Supreme Court of Victoria, S CI 2014 04597; S ECI 2019 04627, Ginnane J, 19 and 20 May 2022) ('T'), 2, 214.

Application to serve a notice to admit and interrogatories on VCAT

Mr Beling sought leave to serve a notice to admit and interrogatories on VCAT as second defendant in the 2014 and 2019 proceedings. Mr Beling argued that his previous similar applications were refused because this Court, and the Court of Appeal, ruled that they could not succeed if the joinder application failed. He submitted that because the Commissioner had conceded that VCAT should be joined as a defendant, the applications now had merit and should be granted.

Application to serve interrogatories on the Commissioner

Mr Beling sought leave to serve interrogatories on the Commissioner. He argued that the Commissioner had ‘admitted her role in the conspiracy’ by failing to deny allegations of file tampering, falsifying submissions before the Tribunal, failing to appear at a file review meeting, previously making admissions of fact and failing to file affidavits in this Court. Mr Beling submitted that an inference of ‘guilt or liability’ arose from this conduct and therefore the Commissioner should be compelled to answer the interrogatories.

Application to amend Notices of Appeal

Mr Beling also again sought leave to amend two Notices of Appeal despite my previous refusal of such leave. He contended that my decision and the Court of Appeal’s had provided no path of reasoning or analysis for the refusal of leave.

The Commissioner opposed each of Mr Beling's application relying on my 2021 judgment and the Court of Appeal’s judgment.

Conclusion on the interlocutory applications

I refused each of Mr Beling's applications. I considered that they were without merit for the much the same reasons as his 2021 applications were. They involved a rerun of arguments that were rejected in 2021.

This proceeding was commenced during the Commissioner's investigation so there was no basis for the Tribunal to be joined as a party or to be required to respond to a notice to admit or to answer interrogatories. In addition, the interrogatories were not proper interrogatories.

I refused Mr Beling's application to amend the notices of appeal, which amendments would have enabled him to lead evidence that the Commissioner made his clients a settlement offer. Whether or not that settlement offer was privileged, or whether any such privilege was waived, that settlement offer had no relevance to this proceeding.

Mr Beling’s summons to adduce fresh evidence

As part of his application for an extension of time Mr Beling sought leave to adduce fresh evidence. I refused that application in the 2019 proceedings and I refuse the application in this proceeding for the same reasons.[15]
[15]See Beling v Legal Services Commissioner (No 2) [2023] VSC 213 [30]-[37].

Mr Beling’s application for an extension of time

I next consider Mr Beling's application for an extension of time in which to appeal the orders of the Associate Justice. The notice of appeal was filed almost 4 years, out of time. The Commissioner opposed his application.

Mr Beling contended that his VCAT proceedings against his former clients to recover professional fees were only decided in September 2019 and were ‘inextricably intertwined’[16] with this proceeding. As a result, he argued that he could not have commenced this appeal before they were decided. This argument cannot be accepted as the subject matters of this proceeding and the VCAT proceedings were quite different and provided no justification for Mr Beling disregarding the time limits for appealing the Associate Justice's orders.
[16]T 37.

Mr Beling also explained his delay as being due to the ‘widespread misconduct engaged in by [the Associate Justice] which gave rise to a reasonable apprehension of bias or actual bias’.[17] This alleged conduct included falsifying the audio recording and transcript of the proceeding by causing portions of the hearing to be removed from the audio and not transcribed.[18] In addition, he argued that the Commissioner failed to comply with professional standards during the investigation. Mr Beling provided no evidence for such serious allegations, yet he was still prepared to make them, despite the Court of Appeal criticising him for making similar allegations.[19]
[17]Joel Beling, ‘Applicant’s Outline of Submissions for the Application to Adduce Fresh Evidence and Extensions of Time’, Submission in Beling v Victorian Legal Services Commissioner (No 2) S CI 2014 06088, 12 October 2020, [15].
[18]T 39; Joel Beling, ‘Applicant’s Outline of Submissions for the Application to Adduce Fresh Evidence and Extensions of Time’, Submission in Beling v Victorian Legal Services Commissioner (No 2) S CI 2014 06088, 12 October 2020, [15].
[19]Beling v Victorian Legal Services Commissioner [2021] VSCA 257, [15].

Unsubstantiated allegations provide no basis upon which the Court should exercise a discretion to extend time. When awarding indemnity costs against Mr Beling for his unsuccessful applications to appeal interlocutory rulings in the proceeding that the Commissioner commenced in the County Court, the Court of Appeal stated:[20]

While the applicant was self-represented, nevertheless, he was admitted to practise as a legal practitioner, and he has practised as a legal practitioner for a number of years. It is a matter of particular concern that, as we pointed out in our substantive judgments, the applicant made a number of very serious allegations, which were wholly unsupported and were without any evidentiary or other foundation, including allegations of fraud, dishonesty and falsification of documents that had been lodged with VCAT. In our reasons in the first appeal, we noted that a significant number of allegations and propositions, advanced by the applicant, were wholly lacking in any evidentiary support, and we concluded that a number of the bases, upon which with applicant had sought leave to appeal, were quite hopeless. Further, the application for an extension of time and the application for the stay were entirely without merit.
As a legal practitioner, the applicant ought to have known, and been acutely aware of, his obligation not to advance propositions in court which allege dishonesty, fraud or the like without an appropriate and sound factual foundation, and of his obligation not to advance submissions to the Court which were so devoid of merit.
In those circumstances, it is appropriate that the Court should order that the applicant pay the respondent’s costs in each matter on an indemnity basis.

[20]Beling v Legal Services Commissioner (No 2) [2021] VSCA 271, [13]-[15].

Mr Beling also alleged that the Associate Justice ‘covered up’ purported abuses of power by the Commissioner. Again, no evidence of a ‘cover up’ was presented and again the allegation provides no basis upon which such a substantial extension of time could be justified.

Mr Beling relied on a range of other matters. These included that he could not afford legal representation to pursue an appeal and that he lacked the skills or knowledge to be able to conduct the appeal himself. He could not risk incurring a further costs order. The Commissioner failed to discuss his allegations with him and had obstructed his preparation of the appeal documents and had hindered him from narrowing the issues in dispute. Mr Beling also challenged the Commissioner’s response to his complaints about four staff in the Commissioner’s office and about matters that they had failed to consider or evidence that they had failed to obtain.

Mr Beling relied on the County Court decisions twice granting him leave to apply to strike out the Commissioner's statement of claim seeking payment of outstanding costs on grounds that it did not comply with the Civil Procedure Act 2010 (‘CPA’). He also relied on the statement of a Deputy President at VCAT, when refusing him leave to join the Commissioner as a party to his proceedings, that he could commence separate proceedings against the Commissioner, if he wished.

Mr Beling argued that the Commissioner would not suffer prejudice if he was granted an extension of time and, in any event, the public interest outweighed any such prejudice.

The Commissioner’s submission on the extension of time application

The Commissioner submitted that Mr Beling had not adequately explained his inordinate delay in commencing the appeal. He had made a deliberate decision not to appeal within time and that was fatal to obtaining an extension of time. Mr Beling's inability to afford legal representation was not an acceptable explanation as he was a legal practitioner who has represented himself during his dispute with his former clients and with the Commissioner.

The Commissioner relied on the Court of Appeal's statement in Beling v McLeay as Legal Services Commissioner,[21] when refusing Mr Beling an extension of time in which to seek leave to appeal Judge Cosgrave’s orders, in the Commissioner’s County Court proceedings to recover costs under an agreement made with Mr Beling, that he had ‘failed to demonstrate that any of the proposed sixteen grounds of his application for leave to appeal are reasonably arguable’.[22]
[21][2021] VSCA 256 (’McLeay’).
[22]Ibid [159].

The Commissioner relied on the importance of finality being given to the Associate Justice's decision. Mr Beling had made a deliberate decision not appeal within time.

The Commissioner submitted that the solicitors employed in her office and counsel were not obliged to cooperate with Mr Beling in the manner that he sought. The Court of Appeal dismissed a similar argument made by Mr Beling.[23] The Commissioner decided that none of the complaints that Mr Beling raised about his staff satisfied the high standard required to establish that any of the practitioners was not a fit and proper person to engage in legal practice or had engaged in conduct that other lawyers of good repute and competency would regard as dishonourable and disgraceful. The Commissioner concluded that:[24]

None of the matters you raise could satisfy such a high standard so I am not able to deal with them here and in the circumstances dismiss these complaints under section 4.2.10 of the Act.

[23]Ibid [51].

[24]Affidavit of Joel Beling 1 February 2021, Exhibit JLB-1.

The Commissioner disputed that those matters occurring in the County Court proceeding, or the Deputy President’s statement in VCAT, had had any relevance to the merit of any proceeding that Mr Beling sought to commence.

Some of Mr Beling’s arguments had no relevance to the Commissioner’s investigation such as allegations that the Commissioner had interfered with the VCAT proceedings against his former clients in which he sought payment of legal fees.[25]
[25]Beling v Hanna (Legal Practice) [2019] VCAT 1327.

Analysis

In McLeay,[26] the Court of Appeal referred to the statement of McLeish JA and Riordan AJA in Kambouris v Kiatos, about granting an extension of time, that:[27]

[i]n deciding whether an extension of time to seek leave to appeal should be granted, the Court will take into account several factors, including: (a) the length of delay; (b) the reasons for delay; and (c) the extent of any prejudice suffered by the respondent if the extension is granted: An extension of time will not be granted if the appeal ‘is so devoid of merit that it would be futile to do so’.

[26]McLeay [47].

[27][2016] VSCA 266, [23].

The principles governing the grant of an extension of time were also stated by the Court of Appeal in Trkulja v Dobrijevic:[28]

The principles, relating to the application for an extension of time, are well established. The guiding principle is that the discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. The applicant, for an extension of time, must explain the delay, and the explanation must justify the delay being excused. The Court should take into account the history of the proceedings and the conduct of the parties. A relevant consideration is that, in the case of a proposed appeal, the successful party, at first instance, has a legitimate interest in the finality of the decision in that party's favour. The Court does take into account its assessment of the prospects of success of the appeal, on such an application, bearing in mind, however, that the parties are not in a position to address a full argument on that issue, nor is the Court in a position to make a detailed assessment of it.

[28][2016] VSCA 281, [27].

Mr Beling made a deliberate decision to not pursue an appeal within the time allowed due to his perception of the bias of the judiciary, a perception which had no basis. He was aware of the time limit for seeking leave to appeal but explained his decision not to observe them in the following terms:^[29]

In light of the above alleged serious misconduct by the Commissioner and VCAT, and the alleged serious misconduct by former Associate Justice Derham in [the judicial review proceeding]… I say that I made a deliberate and considered tactical decision not to appeal the decisions of VCAT dated 12 July 2017 and 27 September 2017 and the decision of … [Derham AsJ] dated 22 April 2016 within the prescribed statutory time frame, because of a grave fear of a reasonable apprehension of bias or actual bias, and because I could not risk losing my and my children’s home on a judiciary who had shown a tendency to falsify documents and cover up evidence of clear misconduct by the Commissioner. In other words, I was fearful the Supreme Court would not bring an objective, fair and impartial mind to adjudicating the issues in dispute because two judicial members of the Court had already allegedly falsified documents and covered up clear misconduct by the Commissioner…

[29] Affidavit of Mr Beling 3 October 2020, [14]; CB 4153.

If Mr Beling wished to appeal the Associate Justice’s orders, he was obliged to do so within the time permitted. This proceeding was commenced more than 8 years ago. Protracted litigation causes prejudice to all involved, including witnesses and lawyers.

The Commissioner was not obliged to meet with Mr Beling to discuss his allegations of bias, file tampering or the standards of the legal profession. Nor can Mr Beling rely on his wish to await the outcome of his VCAT proceedings against his former clients. The filing of notices of appeal cannot await other proceedings being decided. Mr Beling's proceeding against his former clients was decided on 6 September 2019, but he filed his notice of appeal on 6 April 2020, more than 6 months later.

Other reasons that Mr Beling advanced for his delay lacked merit. They included that the Commissioner did not file bills of the costs she claimed in this and the 2019 proceedings. But that did not excuse his delay. In fact, the evidence suggested that the Commissioner did send him draft bills of costs in those proceedings and reached agreement with him for payment by instalments.

The Court of Appeal, when refusing Mr Beling leave to appeal from interlocutory and costs orders made in the County Court proceedings, rejected Mr Beling’s allegation that the Commissioner failed to adequately decide his complaint dated 14 November 2014 concerning the professional conduct of members of her office, describing them as having ‘no substance’.[30] I am bound by that decision.
[30]McLeay [110]-[111].

I do not consider that Mr Beling has adequately explained his very great delay in seeking to appeal the Associate Justice’s orders. His deliberate decision to delay, without valid grounds for doing so, by itself is sufficient to deny his application for an extension of time. I do not consider that any of his other explanations justify his delay.

But, as in any extension of time application, it is relevant to consider whether the appeal has sufficient prospects of success to give an extension of time utility, I will proceed to deal with that question next, by considering whether Mr Beling’s proposed grounds of appeal contain any arguable error made by the Associate Justice. It is ironic that as Mr Beling deliberately decided not to appeal for almost four years, that it is necessary to consider the merits of his proposed appeal, on the assumption that he was granted leave to appeal. However, as the Associate Justice considered those merits before deciding to summarily dismiss the proceeding, it is necessary to consider Mr Beling’s challenge to His Honour’s finding that it lacked merit.

The merits of Mr Beling’s proposed appeal

An appeal against an Associate Justice's order is a rehearing and succeeds only if it is established that the Associate Justice made a legal error.[31]
[31]Glass (a Pseudonym) v Chief Examiner [2015] VSC 29,[2]; Oswal v Carson [2013] VSC 355, [11].

Mr Beling relied on 14 proposed grounds of appeal most of which had between one and eight sub-grounds. I will often refer to the proposed grounds as ‘grounds’. He sought orders setting aside the summary dismissal order, granting him leave to discontinue the proceeding, granting him judicial review orders quashing the Commissioner's Notice of Decision dated 23 December 2014 and an order compelling a prescribed investigatory body, such as the Law Institute of Victoria, to investigate his complaint about the Commissioner dated 14 November 2014.

Ground 1 - the Commissioner's actions rendered Mr Beling’s proceeding useless

Mr Beling argued that the Associate Justice erred by not considering his submission that the Commissioner's actions had rendered his proceeding useless. He submitted that the Commissioner had concealed his defence, which he described as the decision not to call the Hannas to give evidence in his disciplinary proceedings. He argued that the Commissioner had done so because he did not consider that evidence fit to rely upon. A defendant cannot conceal a defence in pre-trial negotiations and then disclose it during the hearing. Mr Beling further argued that the Tribunal did not consider the legal authorities upon which he relied, nor the Commissioner’s breaches of the litigation obligations contained in the CPA. The Associate Justice did not sufficiently consider his six abuse of power grounds.

The Commissioner’s submissions

It is appropriate at this point to describe matters that the Commissioner relied on in respect of most of Mr Beling’s grounds. The Commissioner relied on the Associate Justice’s statement at the commencement of his reasons:[32]

The defendant applies by summons filed on 20 February 2015 to dismiss the proceeding...
…
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?

[32]Reasons [1]-[2].

The Commissioner submitted that the only issues before the Associate Justice were how the proceeding should end: either by Mr Beling being given leave to discontinue the proceeding or the Commissioner being granted summary judgment dismissing Mr Beling’s proceeding. At the most, Mr Beling could have sought orders that the Associate Justice grant him leave to discontinue the proceeding without the usual order that he pay the costs. Despite the confined nature of the issues for decision, Mr Beling's proposed notice of appeal sought to raise a much wider range of questions.

The Commissioner also argued that Mr Beling’s purpose in commencing the proceeding was to seek to judicially review the manner in which the Commissioner was conducting an investigation under the LPA. The Associate Justice accepted that it was against the policy of the LPA that the investigation be subject to court direction, unless the Commissioner had denied the practitioner procedural fairness, or had in some material way failed to perform her duties contained in the LPA.[33]
[33]Reasons [43].

The Commissioner contended that she did not intend to rely on the Hannas’ evidence in the Tribunal hearing to dispute Mr Beling’s submissions. She relied on the Associate Justice’s rejection of Mr Beling’s argument about the Commissioner’s alleged concealment of a defence which was expressed in the following terms:[34]

…the proposition that by the defendant revealing the 'defence' the plaintiff's proceeding is rendered useless proceeds on a false premise; namely, that there is merit in the claims made in the proceeding requiring a defence of the kind referred to.
[34]Ibid [89].

Analysis of proposed ground 1

The Associate Justice did not err in rejecting Mr Beling's submission that the Commissioner concealed a defence. Parties are not obliged to disclose why they are not calling particular witnesses as part of their cases. In any event, the central issue for the Associate Justice to decide was the form of order appropriate to end Mr Beling’s proceeding. The Associate Justice did take into account Mr Beling's submission that the Commissioner had obligations under the CPA and the Model Litigant Guidelines, but rejected its relevance to the determination of the proceeding as the Commissioner had been carrying out an investigation under specific provisions of the LPA. The Associate Justice was not obliged to consider every authority relied upon by Mr Beling.

Ground 1 does not identify any arguable error by the Associate Justice.

Ground 2 – The Associate Justice should not have ordered the summary dismissal of Mr Beling’s proceeding

Mr Beling argued that the Associate Justice erred in granting the Commissioner summary judgment because he failed to sufficiently consider that the Commissioner's application was only filed ‘out of an abundance of caution’, because Mr Beling’s application for leave to discontinue his proceeding had not been formally filed. The Commissioner had adopted a technical argument contrary to the principles in the Model Litigant Guidelines. Mr Beling also argued that the Commissioner’s ‘without prejudice’ offer dated 12 February 2015 to waive all her costs, showed that his proceeding was meritorious and had an arguable factual basis. It had utility, at least up to the Commissioner’s Notice of Decision dated 23 December 2014, because its effect was to elicit at that date the primary information that he sought from the Commissioner, namely why she was not seeking comment from the Hannas to the fourth response that he made to the Commissioner.

Mr Beling also relied on the following matters. The Commissioner did not decide his complaints of 14 November 2014 or 5 May 2016 about the professional conduct of the Commissioner’s delegates, including Mr R Daily’s six allegations in his letter to Mr Beling dated 3 June 2014. Those allegations were that Mr Beling had possibly failed to comply with Rule 13.1 of the Professional Conduct and Practice Rules 2005 (‘the Rules’) in replicating in his draft further amended statement of claim the emails that Mrs Hanna sent to him in October and November 2012. The matters raised were that he had included allegations in the draft statement of claim without a proper basis and at the request of Mrs Hanna, whereas he had not done so. On 18 November 2014, the Commissioner summarily dismissed his complaint about the conduct of the Commissioner's delegates. Mr Beling also argued that the Commissioner’s Notice of Decision dated 23 December 2014 was invalid.

Mr Beling relied on the Commissioner's failure to obtain Mr Hanna's waiver of legal professional privilege in his client file prior to commencing the investigation. He argued that the Associate Justice was obliged to consider all relevant circumstances that led him to commence the proceeding and not just the fact that he wished to discontinue it.[35]

The Commissioner's submissions

[35]The issues raised by grounds 2 (e), (g) and (h) are dealt with elsewhere in this judgment.

The Commissioner submitted that the Associate Justice was able to order the summary dismissal of the proceeding even if the application for such an order was made out of an ‘abundance of caution’ and although the Commissioner had conducted without prejudice negotiations with Mr Beling. His proceeding was not ‘successful’ prior to the Commissioner issuing his Notice of Decision. The Associate Justice dealt with Mr Beling's six alleged abuses of power and his complaint about the Commissioner's delegates, in the following passage:[36]

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 and abuse of power in my view.

[36]Reasons [77].

The Commissioner also relied on the Court of Appeal's remarks in McLeay, when dismissing Mr Beling’s argument that the Commissioner did not adequately deal with his complaint about the actions of his delegates. The Court stated that ‘[t]here is no substance in either such pleading, or in the submissions made by Mr Beling in support of them’.[37] Mr Beling did not establish that Commissioner had failed to comply with the CPA. The Associate Justice did consider that issue.
[37]McLeay [111].

Analysis of proposed ground 2

The Associate Justice did not have to consider everything that Mr Beling considered relevant. It was open to him to order that Mr Beling’s proceeding be summarily dismissed once he decided that it did not raise an arguable claim. The Associate Justice did not grant the Commissioner's application for summary judgment because Mr Beling filed an incorrect court document, but because he concluded that ‘the material advanced by the plaintiff reveals no arguable case for relief of any kind’.[38]
[38]Reasons [103].

By proposed ground of appeal 2(b), Mr Beling raised arguments that the Court of Appeal had already decided. Exchanging without prejudice correspondence does not indicate that either party considers that its case is weak or unlikely to succeed.[39]
[39]McLeay [72].

Mr Beling's proceeding was not successful in any relevant sense because the Commissioner informed him that he did not propose to call the Hannas as he contended in ground 2 (c). A litigant is successful when they obtain the orders, or a significant component of them, that they sought in the proceeding.

Ground 2(d) alleges that the Associate Justice failed to consider the six alleged abuse of power grounds relating to Mrs Hanna’s emails being replicated in Mr Beling’s draft statement of claim. This allegation has no bearing on Mr Beling’s challenge to the Associate Justice’s orders. His Honour considered this argument, but found that, even if the Commissioner was wrong in the allegations made by his office, that did not show that he had abused his power and there was no basis to stop him coming to a decision under s 4.4.13 of the LPA.[40]
[40]Reasons [76]-[77].

Ground 2(f) challenging the Commissioner’s dismissal of Mr Beling's complaint about the Commissioner's delegates has no bearing on the Associate Justice's decision to grant summary dismissal of Mr Beling’s proceeding. The Commissioner’s investigation concerned Mr Beling’s conduct not the delegates’.

Ground 2 does not identify any arguable error by the Associate Justice.

Mr Beling’s grounds 3, 4 and 5

Mr Beling's third, fourth and fifth grounds contended that the Associate Justice erred in not granting him judicial review remedies in the nature of mandamus, certiorari or prohibition. Those grounds have no merit because the Associate Justice's task was to decide what order to make to end the proceeding, not to consider whether to grant judicial review remedies. The Associate Justice concluded that Mr Beling's claims had no real prospects of success, a conclusion which justified an order that it be summarily dismissed.

Grounds 3(a)-(c) are similar to contentions raised by ground 2. The remaining parts of grounds 3, 4 and 5 are:[41]
[41]Plaintiff’s Notice of Appeal from Associate Judge dated 16 May 2022.

3.The Court has erred in its decision to refuse the Plaintiff's application for an Order for Mandamus for the following reasons:

(d)The Defendant's letters to Mrs Hanna and the Plaintiff concerning her Notice of Decision dated 23 December 2014 were invalid because they did not contain a decision on the Defendant's possible allegations under Rule 13.1 of the Professional Conduct and Practice Rules 2005, which were foreshadowed in the Defendant's Murray letter dated 20 May 2014 and 3 June 2014;

(e)There was actual or perceived bias in the Defendant's dealings with the Plaintiff during the investigation which manifested itself in VCAT proceeding J71/2015;

(f)The Court has erred in finding that the Defendant is not bound to respond to the questions of the Plaintiff during the disciplinary investigation under Chapter 4 of the Legal Profession Act 2004 on the basis that she is estopped by conduct in her "without prejudice" letter dated 22 December 2014, which precisely responded to the Plaintiff's request to put his responses to the clients within the period of the disciplinary investigation.

4.The Court has erred in its decision to refuse the Plaintiff’s application for an Order for Certiorari for the following reasons; [the sub-grounds of ground 4, (a)-(g) are repeated in ground 5]

5.The Court has erred in its decision to refuse the Plaintiff's application for an Order for Prohibition for the following reasons;

(a)Charge 1 in VCAT proceeding J71/2015 was put by the Defendant on the basis of proportionality and "value for money" whereas these are factors properly heard and determined in a costs assessment by the Costs Court, which VCAT has no jurisdiction to hear and determine;

(b)The Defendant has refused or failed to adequately deal with the Plaintiff's complaint dated 14 November 2014 in her decision dated 18 November 2014 in accordance with the Legal Profession Act 2004, including but not limited to dealing with issues such as a conflict of interest and lack of jurisdiction to hear complaints about her own delegates;

(c)The Defendant has failed to comply with professional standards in the legal profession with respect to the six allegations of possible professional misconduct in her letter dated 3 June 2014 concerning the Plaintiff's alleged replication of the contents of Mrs Hanna's emails in the draft Further Amended Statement of Claim dated 9 November 2012;

(d)Peter Hanna had not waived legal professional privilege prior to the Defendant using the Plaintiff's client file in the investigation and to commence VCAT proceeding J71/2015;

(e)Tina Stagliano's affidavit dated 20 February 2015 was fraudulent because it dishonestly induced the Court into finding that the Defendant had obtained a complaint on behalf of both Mr and Mrs Hanna and therefore that both Mr and Mrs Hanna had waived their legal professional privilege;

(f)The Defendant's letters to Mrs Hanna and the Plaintiff concerning her Notice of Decision dated 23 December 2014 were invalid because they did not contain a decision on the Defendant’s possible allegations under Rule 13.1 of the Professional Conduct and Practice Rules 2005, which were foreshadowed in the Defendant’s Murray letter dated 20 May 2014 and 3 June 2014;
(g)There was actual and perceived bias in the Defendant’s dealings with the Plaintiff which manifested itself in VCAT proceeding J71/2015;
(h)The Court should have treated the Plaintiff’s application for an Order for prohibition as an injunction or, alternatively, failed to consider the Plaintiff’s application for an injunction in the amended Originating Motion;
(i)The Plaintiff was instrumental in obtaining for the clients, Tracie and Peter Hanna, a “successful outcome” under the terms of Clause 2 of the Conditional Costs Agreement dated 29 August 2012, when the Deed of Settlement dated 7 June 2013 between the Hannas and the ANZ Bank is considered.

Mr Beling's submissions on grounds 3 and 5

Mr Beling's submissions, in part, repeated previous grounds. He submitted that the Associate Justice erred by not granting the judicial review orders that he sought. He contended that the Commissioner failed to adequately deal with his complaints, breached professional standards, failed to obtain Mr Hanna’s waiver of his legal privilege before using Mr Beling's client file, relied on allegedly fraudulent affidavits and omitted to consider the Commissioner’s alleged misconduct under the Rules in the Notice of Decision.[42]
[42]T 67- 70.

Mr Beling argued that the Commissioner’s dealings with him evidenced bias. The Associate Justice erred in finding that the Commissioner was not bound to respond to the questions he asked during the disciplinary investigation.[43] His Honour should have treated Mr Beling’s application for an order of prohibition as an application for an injunction. He did obtain a ‘successful outcome’ for the Hannas.
[43]Plaintiff’s Notice of Appeal from Associate Justice dated 5 May 2020 [3] (f).

The Commissioner's submissions

The Commissioner submitted that Mr Beling sought to discontinue the proceeding and did not press for an order for mandamus, certiorari, prohibition or an injunction. In those circumstances there was no occasion for the Court to grant such orders and the Associate Justice did not err in not doing so.

Analysis of proposed grounds 3 and 5

I accept the Commissioner’s submissions concerning grounds 3 and 5. The Associate Justice’s task was to decide what order to make to end the proceeding as neither party wanted it to continue. Mr Beling did not seek an injunction and did not seek to halt the Commissioner’s investigation. But the Associate Justice did have to consider the merit of Mr Beling’s grounds in deciding whether to summarily dismiss his proceeding. So, I will state my conclusions about Mr Beling’s principal arguments made under grounds 3 and 5 save for those which I deal with elsewhere in this judgment.

Mr Beling again raised issues about the validity of the Commissioner’s Notice of Decision and alleged that he had failed to consider his complaints about the Commissioner’s and his delegates’ conduct (grounds 3(a), (b), (d), 5(b), (c) and (f)). I have dealt with that argument and noted that the Court of Appeal described it as having no substance. In addition, the Commissioner was not obliged to state in the Notice of Decision matters that he did not decide, but only matters that he did.

Mr Beling established no basis on which the Associate Justice could have concluded that the Commissioner was actually or ostensibly biased against him during the investigation (grounds 3(e) and 5(g)). The Associate Justice found that Mr Beling was given sufficient details of the Commissioner’s case against him.[44] The Commissioner was not bound to respond to Mr Beling's questions during the investigation as he contended in ground 3(f).
[44]Reasons [73].

Mr Beling’s grounds challenging aspects of the VCAT hearing and its conclusions, including grounds 3(e), 5(a), and 5(g), are not relevant to this proceeding. I do not accept ground 5(i) which alleges that Mr Beling obtained a successful outcome for the Hannas due to the terms of a Deed of Settlement dated 7 June 2013, because no such settlement was achieved and Mr Beling had ceased to act for the Hannas.

Ground 5(e) has no substance as the Associate Justice was entitled to conclude that the complaint to the Commissioner was made on behalf of both Tracie and Peter Hanna. The fact that Mrs Hanna played the leading role in pursuing the complaint does not establish that she was not also acting for Mr Hanna.

For those reasons, the Associate Justice did not err in not making an order for mandamus or prohibition. None of the grounds relied on by Mr Beling would have justified the Associate Justice granting such orders. He found that the material advanced by Mr Beling revealed no arguable case for relief of any kind. Mr Beling was no longer pursuing his proceeding, but seeking to end it.

Grounds 3 and 5 do not identify any arguable error by the Associate Justice.

Ground 4

Ground 4 alleges that the Associate Justice erred by not granting him an order of certiorari and is based on contentions which also form part of ground 5. It is unclear that Mr Beling pressed a claim for an order of certiorari. To the extent that he did, he did not establish any grounds for such an order.

Ground 4 does not identify any arguable error by the Associate Justice.

Ground 6 – Joint waiver of legal professional privilege

Mr Beling's sixth ground is:

The Court has erred by drawing inferences of joint waiver of legal professional privilege, and “complainants” (plural), by Tracie and Peter Hanna which was not open on the evidence in Ms Tina Stagliano's affidavit sworn 20 February 2014 before it, namely that “[t]he 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 between the clients and the Australian and New Zealand Banking Group Ltd.”

. .. . .

Mr Beling argued that the Associate Justice erred by concluding that Mr Hanna had waived legal professional privilege in his client file. The law required both Mr and Mrs Hanna to waive their privilege.[45] Mr Hanna could not waive his privilege retrospectively after the investigation had commenced. The Commissioner admitted by her conduct in calling Mr Hanna as a witness to waive his privilege that he had not waived it previously. Mr Hanna gave his evidence without having his administrator or an independent legal representative present.
[45]Farrow Mortgage Services Pty Ltd (In liq) v Webb (1996) 39 NSWLR 601.

The Commissioner's submissions

The Commissioner submitted that the Associate Justice was satisfied that both Mr Beling's former clients had waived legal professional privilege. The Court of Appeal reached the same conclusion.[46]
[46]McLeay [124].

Analysis of proposed ground 6

The Associate Justice considered that both Mr and Mrs Hanna had waived their legal privilege prior to the Commissioner commencing his investigation contrary to Mr Beling’s grounds 2(e) and 3(c). His Honour concluded:[47]

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 [Legal Profession Act 2004 (Vic)] 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.

[47]Reasons [33].

The Court of Appeal in dismissing Mr Beling’s application for leave to appeal interlocutory rulings in the County Court proceeding stated:[48]

The fact that Mr Hanna was not a party to the complaint to the Commissioner did not preclude the Commissioner from undertaking the investigation of the complaint made by Mrs Hanna. The Tribunal and Derham AsJ each found that Mr Hanna (as well as Mrs Hanna) had waived legal professional privilege.

[48]McLeay [124].

The Court clearly accepted that the conclusions of the Tribunal and the Associate Justice were correct and that Mr Hanna had waived his legal privilege in the client file. I am bound by that decision.

Ground 6 does not identify any arguable error by the Associate Justice.

Ground 7 - Affidavit of Ms T Stagliano

Mr Beling's seventh ground is:

The Defendant has allegedly committed a fraud on the Court by stating, in Annexure TS-1 of the affidavit of Tina Stagliano of the Defendant’ office dated 20 February 2015, that the complaint about the Plaintiff’s professional conduct to the Defendant in February 2013 was filed on behalf of both Tracie Hanna and Peter Hanna, when in fact the Defendant knew that the complaint was in fact only filed on behalf of Tracie Hanna.

Mr Beling's submissions

Mr Beling submitted that Ms Stagliano, solicitor for the Commissioner, implied in correspondence attached to her affidavit that the complaint to the Commissioner was made by Mr and Mrs Hanna and that both had waived legal professional privilege when she knew that was not the case and that Mrs Hanna only had made the complaint and waived her privilege. He listed a number of reasons for that conclusion. He argued that the Associate Justice had wrongly relied on Ms Stagliano’s statement.

The Commissioner's submissions

The Commissioner submitted that Mr Beling's seventh ground of appeal attempted to discredit Ms Stagliano’s evidence, when he had not challenged her evidence in cross-examination.

Analysis of proposed ground 7

Mr Beling’s seventh ground does not disclose an error by the Associate Justice. In her affidavit, Ms Stagliano stated:[49]

The proceeding concerns an investigation carried out under Part 4.4 of the Legal Profession Act 2004 (Vic) (the Act) in relation to conduct of the Plaintiff as a legal practitioner. The investigation was made in response to a disciplinary complaint made by a former client of the Plaintiff.

[49]Affidavit of 20 February 2015 [5].

Mr Beling relies on a statement in an annexure to that affidavit that the complaint was filed on behalf of both Tracie Hanna and Peter Hanna. His Honour was entitled to conclude that the complaint was made on behalf of both Mr and Mrs Hanna. Alternatively, if the complaint was to be taken as made only by Mrs Hanna, that conclusion had no material effect on the Associate Justice’s decision. The question of who made the complaint had no bearing on the issue that the Associate Justice had to decide. The Commissioner was still entitled to investigate the complaint even if only made by Mrs Hanna. [50]
[50]McLeay [124].

Ground 7 does not identify any arguable error by the Associate Justice.

Ground 8-The Court's characterisation of the purpose of this proceeding
Mr Beling's submissions

Mr Beling submitted that the Associate Justice erred by characterising his purpose in commencing the proceeding as being:[51]

In substance, …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.

[51]Reasons [8].

Mr Beling described his purpose in commencing the proceeding as to ensure that the Commissioner complied with professional standards, avoided conflicts of interest, and dealt adequately with complaints against the Commissioner and his delegates and to ensure a prescribed investigatory body dealt with such complaints.

The Commissioner's submissions

The Commissioner submitted that the Associate Justice's characterisation of Mr Beling’s purpose was by way of background and introduction and played no significant role in his decision.

Analysis of proposed ground 8

In my opinion, the Commissioner's submission is correct. The statement by the Associate Justice that Mr Beling appeared to have commenced this proceeding to interrupt the Commissioner's investigation into Mr Beling was a comment by way of background. That statement did not form part of the Associate Justice’s reasons for ordering that the proceeding be summarily dismissed. Those reasons were based on his Honour’s finding that the material advanced by Mr Beling revealed no arguable case for relief of any kind. The statement that Mr Beling challenged did not suggest that he was not entitled to raise, or should not have raised, the claims that he made. Rather the Associate Justice described the obvious consequence of the commencement of the proceeding. The Court of Appeal repeated the Associate Justice’s comment without disagreement.

Ground 8 does not identify any arguable error by the Associate Justice.

Grounds 9 and 14 - The Commissioner's Notice of Decision and Mr Beling's complaint against the Commissioner

Mr Beling's ninth and fourteenth grounds are:

The Court has erred because the Defendant’s Notice of Decision dated 23 December 2014 to Mrs Hanna under s.4.4.13(2) of the Legal Profession Act 2004 was invalid or did not otherwise comply with the requirements of s. s. 4.4.14(1)(a) of the Act because there was no analysis or decision by the Defendant in relation to his dismissal of the allegations the Defendant made against the Plaintiff under Rule 13.1 of the Professional Conduct and Practice Rules 2005 in the Murray letter dated 20 May 2014 and the follow up letter dated 3 June 2014.14.
…
The Court has erred in failing to consider or sufficiently consider the Plaintiff's arguments in relation to the application of sections 131(2)(g), 131(2)(i) and 131(2)(k) of the Evidence Act 2008 because the Defendant's decision under s. 4.4.13 of the Legal Profession Act 2004 is invalid insofar as it does not deal with the Defendant's allegations under Rule 13.1 for the Professional Conduct and Practice Rules.

Mr Beling's submissions

Mr Beling submitted that the Commissioner's Notice of Decision dated 23 December 2014 was non-compliant in not deciding allegations that the Commissioner had made under r 13.1 of the Rules in letters of May and June 2014. In his fourteenth ground, Mr Beling submitted that the Court erred by failing to consider provisions of the Evidence Act 2008 which provide for the circumstances in which evidence of settlement negotiations is admissible. Evidence of such negotiations would have supported his response to the Commissioner’s allegations made under r 13.1 of the Rules.

The Commissioner's submissions

The Commissioner submitted that Mr Beling's ninth and fourteenth grounds contained challenges to the Notice of Decision and a failure to consider r 13.1 of the Rules. The issue of the validity of the Notice of Decision had not been argued before the Associate Justice.

Analysis of proposed grounds 9 and 14

The Associate Justice said of the Commissioner's Notice of Decision dated 23 December 2014:[52]

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.

[52]Ibid [16].

The Associate Justice said of Mr Beling’s abuse of power grounds and his reliance on his complaint of 14 November 2014 that:[53]

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.

[53]Ibid [78](a).

The Commissioner was not obliged to make findings about the allegations contained in letters sent in May and June 2014 during the investigation. The issues relevant to an investigation can vary and change as information, responses and material available to the investigator accumulate. The investigation culminated in the Commissioner’s Notice of Decision of 23 December 2014.

The Associate Justice decided that it was unnecessary to consider the application made by Mr Beling to apply s 131(2)(g), (i) and (k) of the Evidence Act because the very basis upon which it was submitted that the without prejudice communications should be admitted into evidence was ‘itself without proper basis’.[54] The Court of Appeal decision concerning the County Court proceedings upheld Judge Ryan’s ruling that the settlement negotiations that took place at the judicial resolution conference in February 2020, and any offer made by the Commissioner at that conference, were not admissible in evidence.[55]
[54]Reasons [92].
[55]McLeay [137].

Grounds 9 and 14 do not identify any arguable error by the Associate Justice.

Ground 10 - The Court's discretion on costs

Mr Beling's tenth ground is that:

The Court's discretion on costs has miscarried for the following reasons:
(a)the Plaintiff was denied procedural fairness insofar as there was no separate hearing on costs;
(b)the Plaintiff was denied natural justice insofar as there was no separate hearing on costs;
(c)The Court's email to the parties written by … on 21 April 2016 stating that "His Honour has requested the attendances of the parties so that any submissions on costs can also be heard," was grossly inaccurate and misleading since on 22 April 2016 His Honour heard no submissions on costs and simply handed down a prewritten judgement to the parties.
(d)the Court did not consider or sufficiently consider the reasonableness or effect of any offers of compromise each of the parties made on the decision on costs under Order 26 of the Supreme Court (General Civil Procedure) Rules 2015 or other laws, despite it finding "[t]he 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";

(e)the Court did not consider or sufficiently consider the fact that, as an indication of the merits of the Plaintiff's case, on 12 February 2015 the Defendant wrote a without prejudice letter consenting to the Plaintiff's withdrawal [of] the proceeding if the Plaintiff paid the Defendant's disbursements of $9100 (the Defendant having waived her entire costs of the proceeding);
(f)The Court has erred in failing to consider or sufficiently consider the fact that the Plaintiff achieved practical success in the proceedings insofar as the Defendant on 22 December 2014, as a result of the commencement of the proceedings, revealed the reason she was not putting the Plaintiff's fourth response to the Commissioner dated 18 July 2014 and 8 September 2014 to the clients for comment;
(g)the Court did not provide any or any adequate reasons.

Mr Beling's submissions

Mr Beling submitted that the Court failed to afford him procedural fairness and natural justice by denying him a hearing on costs and not considering offers of compromise or settlement when deciding costs. The Court informed him that he would be given such an opportunity, but the Associate Justice delivered a pre-prepared judgment and did not invite or allow submissions about costs.

The Commissioner's submissions

The Commissioner submitted that the parties had already made submissions about costs during the hearing and had the opportunity to deal with them then. In his reasons, the Associate Justice set out the rules which govern the usual costs consequences of discontinuing a proceeding, being that the party discontinuing pays the other party’s costs.[56]
[56]Reasons [51]-[52].

Analysis of proposed ground 10

Before, the Associate Justice delivered his reasons for judgment on 22 April 2016, the Court informed the parties as follows:[57]

Dear All,
I refer to the above proceeding heard by the Hon. Associate Justice Derham. His Honour will deliver his reasons for judgement tomorrow, 22 April 2016 in Associate Judges' Court 2, 436 Lonsdale St, Melbourne at 10.30am.
His Honour had requested the attendance of the parties so that any submissions on costs can also be heard.

[57]Court Book, Beling v Victorian Legal Services. Commissioner (Supreme Court of Victoria, SCI 2019 06088, and S ECI 2019 04627, Ginnane J, 19 and 20 May 2022) ('CB') 4147.

Neither Mr Beling nor the Commissioner exhibited a copy of the transcript of the hearing before the Associate Justice. However, his Honour's reasons contain many references to costs, including:[58]
[58]Reasons [17], [21], [34] and [103].

... 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 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.
…
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 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.

Mr Beling's affidavit sworn 26 February 2015 states that he would not have commenced the proceeding had he known that the Commissioner did not intend to rely on the Hannas’ evidence in the VCAT disciplinary proceeding in order to test the veracity of Mr Beling's submissions against him. In essence, this was the basis upon which Mr Beling contended that the Commissioner should pay his costs. Mr Beling's affidavit demonstrated that for the purposes of the hearing before the Associate Justice he did advance arguments to support his submission that he should not be required to pay the Commissioner's costs, but that the Commissioner should pay his costs. The Associate Justice considered that argument.[59]
[59]Ibid [31].

The Associate Justice stated that the issue for decision was how the proceeding should come to an end, ‘on whose application and on what terms?’[60] His Honour considered that there was ‘no valid reason ... why the defendant's costs should not be paid by the plaintiff’ and that ‘there is no arguable basis for the proceeding to be discontinued otherwise than on payment by the plaintiff of the defendant's costs’.[61] Importantly, the Associate Justice stated that ‘the plaintiff has not satisfied [him] that the costs should not be paid by [Mr Beling]’.[62] His Honour’s reasons make clear that he considered the issue of costs as part of his determination of Mr Beling's application for leave to discontinue the proceeding and the Commissioner's application for summary judgment. This was necessary because Mr Beling sought an order dispensing him from the usual requirement to pay costs upon discontinuing a proceeding. The Associate Justice requested the parties’ attendance on 22 April 2016 ‘so that any submissions on costs can also be heard’. No submissions were sought. But because a central issue in the hearing before the Associate Justice had been whether Mr Beling should pay the costs of the proceeding, it is not arguable that His Honour failed to provide Mr Beling with procedural fairness or natural justice by not giving him the opportunity to be heard on costs. Mr Beling had already made submissions about whether he should be obliged to pay costs if he was given leave to discontinue the proceedings. Those submissions were also applicable to the question of whether Mr Beling should pay costs if the Associate Justice should order that his proceeding be summarily dismissed. In those circumstances, Mr Beling suffered no injustice by the procedure by which the order that he pay the Commissioner’s costs was made.
[60]Ibid [3].
[61]Ibid [103]-[104].
[62]Ibid [104].

Ground 10 does not identify any arguable error by the Associate Justice.

Ground 11 – The Commissioner's summary dismissal of Mr Beling's complaints

Mr Beling's eleventh ground was:

The Court has erred by failing to consider or sufficiently consider the fact that the Commissioner's summary dismissal of the Plaintiff's complaint to the Commissioner dated 14 November 2014 on the basis that "None of the matters you raise could satisfy such a high standard so I am not able to deal with them here and in the circumstances dismiss these complaints under section 4.2.10 of the Act," was, in all the circumstances, fraudulent, insofar as the complaint alleged conduct that other lawyers of good repute and competency would regard as dishonourable and disgraceful.

Mr Beling’s submissions

Mr Beling submitted that the Associate Justice erred by failing to consider the Commissioners’ summary dismissal of his complaints against the Commissioner and his staff. He submitted that the Commissioner should have referred his complaints to the Law Institute of Victoria for consideration.

The Commissioner's submissions

In response, the Commissioner relied on his Honour's finding that Mr Beling's allegations that the Commissioner had abused his power had ‘no justification’.[63] The principal question for the Associate Justice to decide in respect of Mr Beling’s application was whether he should be permitted to discontinue his proceeding without being ordered to pay the Commissioner’s costs.
[63]Ibid [75]-[77].

Analysis of proposed ground 11

I have dealt with the substance of this ground when determining grounds 9 and 14.

Mr Beling did not establish how the Commissioner’s dismissal of his complaints against the Commissioner’s staff was relevant to the issues that the Associate Justice had to decide. These issues were the competing applications for orders granting Mr Beling leave to discontinue the proceeding or to grant the Commissioner summary judgment. Arguments about the validity of the Commissioner’s dismissal of Mr Beling’s complaints had no relevance to those issues. The Associate Justice decided that ‘the material advanced by the plaintiff reveals no arguable case for relief of any kind’ and that the ‘proceeding has no real prospect of success,’ resulting in summary dismissal on the defendant’s application. Mr Beling’s proceeding was summarily dismissed, and he was ordered to pay the Commissioner’s costs.[64]
[64]Ibid [103], [105].

Ground 11 does not identify any arguable error by the Associate Justice.

Ground 12 - Abuse of power allegations and purported 'cover up'

Mr Beling's twelfth ground was:

12. The Court has erred by failing to consider or sufficiently consider, as an abuse of discretion, failure to act in good faith or comply with the rule of law and sections 8, 24 and 38 of the Charter of Human Rights and Responsibilities Ad 2006, or an act of actual or perceived bias, the following claims in the Plaintiff's Originating Motion:
(a) 3(b)(i) The defendant's indication in his letter dated 3 June 2014 as to a possible II reasonable likelihood" decision under an alleged failure to comply with Rule 13.1 of the PCP Rules [Professional Conduct and Practise Rules 2005] with respect to the plaintiff's alleged misconceived claims in the draft Further Amended Statement of Claim for mediation purposes only dated 9 November 2012 was in part completely misconceived, unarguable and baseless because the complainant's [Ms. Hanna's] email dated 13 October 2012 refers to ss. 88(d) and 98 (1) of the National Consumer Credit Code 2009 ("the National Credit Code") and there are no claims made in the Draft Further Amended Statement of Claim for mediation purposes only under ss. 88(d) and 98(1) of the National Credit Code.
(b) 3(b)(ii) The defendant's indication in his letter dated 3 June 2014 as to a possible II reasonable likelihood" decision under an alleged failure to comply with Rule 13.1 of the PCP Rules with respect to the plaintiff's alleged misconceived claims in the draft Further Amended Statement of Claim for mediation purposes only dated 9 November 2012 was in part completely misconceived, unarguable and baseless because the complaint's [Ms. Hanna's] email dated 16 October 2012 refers to ss. 202 and 202(d) of the National Credit Code and there are no claims in the Draft Further Amended Statement of Claim for mediation purposes only under ss 202 and 202(d) of the National Credit Code.
(c)3(b)(iii) The defendant's indication in his letter dated 3 June 2014 as to a possible "reasonable likelihood" decision under an alleged failure to comply with Rule 13.1 with respect to the plaintiff's alleged misconceived claims in the draft Further Amended Statement of Claim for mediation purposes only was in part completely misconceived, unarguable and baseless because the complainant's [Ms. Hanna's] email dated 17 October 2012 refers to "Section 46 (Misuse of Market Power), Section NB (Industry Codes), Part XI (Application of the Australian Consumer Law as a law of the Commonwealth), and Schedule 2 (Australian Consumer Law)11 and there are no claims in the Draft Further Amended Statement of Claim for mediation purposes only under "Section 46 (Misuse of Market Power)" and "Section IVB (Industry Codes),'1 while the complainant [Ms. Hanna] has provided no particularity to her instructions under "Part XI (Application of the Australian-Consumer Law as a law of the Commonwealth), and Schedule 2 (Australian Consumer Law)."
(d)3(b)(iv) The defendant’s indication in his letter dated 3 June 2014 as to a possible "reasonable likelihood" decision under an alleged failure to comply with Rule 13.1 of the PCP Rules with respect to the plaintiff's alleged misconceived claims in the draft Further Amended Statement of Claim for mediation purposes only was in part completely misconceived, unarguable and baseless because the complainant's [Ms. Hanna's] email dated 6 November 2012 refers to the Australian Consumer Law, Australian Securities and Investments Commission Act 2001 (Cth), Corporations Act 2001 and there are no claims in the Draft Further Amended Statement of Claim for mediation purposes only under the Corporations Act 2001 and the complainant [Ms. Hanna] has provided no particularity to her instructions under the Australian Consumer Law and Australian Securities and Investments Commission Act 2001 (Cth).
(e) 3(b)(v) The defendant's indication in his letter dated 3 June 2014 as to a possible "reasonable likelihood" decision under an alleged failure to comply with Rule 13.1 of the PCP Rules with respect to the plaintiff's alleged misconceived claims in the draft Further Amended Statement of Claim for mediation purposes only was in part completely misconceived, unarguable and baseless because the complainant [Ms. Hanna's] email dated 6 November 2012 refers to the Australian Consumer Law seeking "accc penalties-10% of previous anual turnover? [sic]" and there is no relief in the draft Further Amended Statement of Claim for mediation purposes only seeking ""accc penalties-10% of previous annual turnover.11
(f) 3(b)(vi) The defendant's indication in his letter dated 3 June 2014 as to a possible "reasonable likelihood" decision under an alleged failure to comply with Rule 13.1 of the PCP Rules with respect to the plaintiff's alleged misconceived claims in the draft Further Amended Statement of Claim for mediation purposes only was in part completely misconceived, unarguable and baseless because the complainant's [Ms. Hanna's] email dated 20 November 2012 refers to s. 204 of the National Credit Code and there is no claim in the draft Further Amended Statement of Claim for mediation purposes only under s. 204 of the National Credit Code. More indicative of bias or a reasonable apprehension of bias, the complainant's email was written on 20 November 2012, 11 days after the draft Further Amended Statement of Claim for mediation purposes only was sent to the Australian and New Zealand Banking Group("ANZ") and the Court-appointed mediator.

Mr Beling's submissions

Mr Beling submitted that the Associate Justice erred by failing to consider claims that he made in his originating motion in support of allegations that the Commissioners abused their discretions, failed to act in good faith or comply with the Charter of Human Rights and Responsibilities Act 2006 and had acted in a biased manner. Mr Beling pointed to a number of errors that he said were contained in the Commissioner’s letter of 3 June 2014 in support of this ground. They concerned allegations that he had included claims in the draft statement of claim at Mrs Hanna’s request, when he had not included such claims.

The Commissioner’s submissions

The Commissioner submitted that the fact that Mr Beling applied to discontinue his proceeding was also relevant to deciding this ground. The Commissioner relied on the findings of the Associate Justice, dismissing Mr Beling's abuse of power allegation.[65] He argued that Mr Beling had produced no evidence to support his allegations that the Associate Justice had ‘cover[ed] up’ the Commissioner's purported abuse of power.
[65]Ibid [77].

Analysis of proposed ground 12

I have dealt with the substance of this ground when dealing with grounds 9 and 14 and I will repeat some of what I there said.

The Associate Justice said of Mr Beling’s abuse of power grounds and his reliance on his complaint of 14 November 2014 that:[66]

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.

[66]Ibid [78(a)].

The Commissioner was not obliged to make findings about the allegations contained in letters sent in May and June 2014during the investigation. The issues relevant to an investigation can vary and change as information, responses, and material available to the investigator accumulate. The investigation culminated in the Commissioner’s Notice of Decision of 23 December 2014.

Mr Beling submitted that the Associate Justice did not sufficiently consider the claims set out in this ground. The Associate Justice said:[67]

... 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. These grounds and questions are wide ranging and travel far beyond the subject matter of the so called 'defence' revealed by the defendant.

[67]Ibid [90].

It is clear from footnote [64] to the above paragraph that the Associate Justice was referring to the grounds of Mr Beling’s originating motion that are the basis of proposed grounds of appeal 12(a)-(e). Thus, the Associate Justice did refer to, and consider, proposed grounds of appeal 12(a)-(e).

In ground 12(f), Mr Beling contended that the Commissioner's letter of 3 June 2014, informing him that there was a reasonable likelihood that he would be found guilty of professional misconduct, was ‘misconceived, unarguable and baseless’. The Commissioner contended that Mr Beling acted as a mouthpiece for his former clients when drafting the statement of claim because he included sections of the National Credit Code.[68] Mr Beling submitted that he had not included a claim under s 204 in his statement of claim and that the Commissioner’s contention that he had done so indicated bias.
[68]Defendant’s letter to the Plaintiff dated 3 June 2014; Reasons [76].

In my opinion this ground lacks merit. It is unclear how this claim would support an application for discontinuance, or, in the alternative, demonstrate prospects of success sufficient to defeat a claim for summary judgment. I do not consider that grounds 12(a)-(f) disclose any arguable error by the Associate Justice.

Mr Beling’s references to the Charter rights contained in ss 8 and 24 and to the interpretive provision contained in s 32 do not advance his arguments associated with grounds 12(a)-(f). He was not denied equality before the law or a fair hearing.

Ground 12 does not disclose any arguable error by the Associate Justice.

Ground 13 – Mr Beling's six questions

Mr Beling's thirteenth ground was:

The Court has erred in failing to consider or sufficiently consider the following questions in paragraph 3(a)-(f) of the Plaintiff's Originating Motion on the following bases:
a) under r. 56.01 of the Rules of Court;
b) under r 5.05 of the Rules of Court;
c) under the supervisory jurisdiction of the Court; and
d) under s 64(a) and/or (b) of the Civil Procedure Act 2010.

1. What are the elements of the charge under Rule 12.2 of the PCP Rules?
2. What are the elements of the common law charge as it relates to the circumstances alleged by the defendant in its letter dated 20 May 2014
3. How long after a solicitor ceases acting for a client does the solicitor have to revise the file?
4. Must a solicitor's file be self-contained (that is, without the need for explanation by the solicitor) in order to comply with the solicitor's common law obligation of due care and competence?
5. To what extent must legal advice given to clients be in writing in order for clients to understand their legal position so as to be able to provide proper instructions?
6. To what extent must legal advice given to two clients - one of whom (Peter Hanna) suffers from a medically diagnosed hearing impairment, an intellectual disability and is illiterate and one of whom (Tracie Hanna) suffers from memory problems, attention deficit hyperactivity disorder features and neuropsychological problems - be in writing in order for the two clients to understand their legal position so as to be able to provide proper instructions?

Mr Beling's submissions

Mr Beling argued that the Associate Justice erred by failing to consider the six questions that were posed in his originating motion.

The Commissioner's submissions

The Commissioner submitted that the six questions set out in Mr Beling's thirteenth ground did not arise from or were connected to the Associate Justice’s decision.

Analysis of proposed ground 13

The Associate Justice described paragraph 3(a)-(e) of Mr Beling's originating motion as follows:[69]

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.
…
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.

[69]Reasons [79], [81] and [82].

The Associate Justice also stated that the questions Mr Beling raised ‘have nothing whatever to do with the failure or refusal of the defendant to send the submissions to the complainants for comment’.[70]
[70]Ibid [90].

In my opinion, it would have been inappropriate for the Associate Justice to consider, or answer. the questions contained in ground 13. They did not relate to any of matters that the Associate Justice was required to decide or the remedies that Mr Beling claimed.

Ground 13 does not identify any arguable error by the Associate Justice.

Appeal against Judicial Registrar’s costs order

The Judicial Registrar ordered that Mr Beling pay the costs of the application before him. I granted Mr Beling leave to file a notice of appeal against that order. Mr Beling did not identify to any error in the Judicial Registrar’s orders. The Judicial Registrar applied the usual principle that costs follow the event.

Conclusion

None of the errors alleged in the proposed grounds of appeal are arguable. Six years has elapsed since the Associate Justice’s decision to summarily dismiss the proceeding. I do not consider that Mr Beling is entitled to an extension of time to appeal that decision as his proposed grounds have no prospects of success. The Court exercises a discretion to grant judicial review remedies. If Mr Beling was granted an extension of time, it would be decisive in any exercise of that discretion, that his proceeding lacks utility because the Commissioner’s investigation was completed 8 years ago and the disciplinary charges determined 3 years ago. Mr Beling made a deliberate decision not to appeal within the permitted time. Therefore, if an extension of time were granted and the appeal allowed, there is no arguable prospect that Mr Beling would be granted any judicial review or other remedy.

I therefore dismiss Mr Beling’s application for an extension of time in which to appeal the Associate Justice's orders. I will direct written submissions about the costs of the applications determined by this judgment.

[2023] VSC 212

24 April 2023