Legal Research
Cases
Burgess v McGarvie

Burgess v McGarvie

Case [2013] VSCA 142 14 June 2013

Judicial Review

Natural Justice & Procedural Fairness

Mitigating Circumstances

Administrative Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0049
ANDREW BURGESS	Applicant
v
MICHAEL McGARVIE (LEGAL SERVICES COMMISSIONER)	Respondent

---

JUDGES	NETTLE and NEAVE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 May 2013
DATE OF JUDGMENT	14 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 142
JUDGMENT APPEALED FROM	VCAT Proceedings J 1217 of 2012, J 1818 of 2012 and J 24 of 2013, 28 March 2013 (Vice President Judge Jenkins)

---

LEGAL PRACTITIONERS – Professional misconduct by solicitor – Failure to use best endeavours to complete work as soon as reasonably possible; failing to communicate effectively and promptly with clients; and breaching undertaking to Commissioner of Legal Services to complete CPD requirements – Mitigating circumstances – Depression, illness and financial consequences – Sanction – Whether suspension of certificate for nine months followed by 12 months’ restriction to practise as employee solicitor manifestly excessive – Re-sanctioned to 21 months’ restriction to practise as employee solicitor – R v Verdins (2007) 16 VR 269, applied – Legal Profession Act, 2004, ss 4.4.3(1), 4.4.4(1)(a), 4.4.8, 4.4.13, 4.4.16.

ADMINISTRATIVE LAW – Victorian Civil and Administrative Appeal (VCAT) – Failure to take relevant considerations into account – Whether VCAT erred in failing to take mitigating circumstances into account – Reasons – Whether VCAT reasons inadequate as failing to disclose path of reasoning – Quinn v Law Institute of Victoria (2007) 27 VAR 18, applied – Victorian Civil and Administrative Tribunal Act 1998, s 117.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr T V Hurley	Henderson & Ball
For the Respondent	Mr T J Scotter	Solicitor to Legal Services Commissioner

NETTLE JA:

NEAVE JA:

This is an application for leave to appeal from orders of the Victorian Civil and Administrative Tribunal (‘VCAT’) under the Legal Profession Act 2004 (‘LPA’). There is also an application for stay pending appeal.

The facts

The applicant was born on 4 December 1962. On 3 April 1986, he was admitted to practise as a barrister and solicitor. From 3 April 1986 until 30 June 1988, he served as an employee solicitor with the firm of Henderson and Ball and, since 1 July 1988, he has carried on practice as a principal of the firm with a full practising certificate.

By Application for Order dated 15 February 2013, the respondent Commissioner charged the applicant with four charges of professional misconduct within the meaning of s 4.4.4(a) of the LPA and one charge of professional misconduct within the meaning of s 4.4.3(1) of the LPA.

Charges 1 and 2 – Hanslow complaint

Charge 1 alleged professional misconduct comprised of failing to use best endeavours to complete work as soon as reasonably possible and Charge 2 alleged professional misconduct comprised of failing to communicate effectively and promptly with clients. The charges arose out of a complaint by one Janet Hanslow of delay and poor quality work by the applicant in relation to alleged thefts from Ms Hanslow’s cousin, Ms Virtue, and delay on the part of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burgess v McGarvie

Details

AGLC: Burgess v McGarvie [2013] VSCA 142
Case: [2013] VSCA 142
Decision Date: 14 June 2013

CaseChat Overview and Summary

Burgess v McGarvie was a case heard by the Legal Services Commissioner in Victoria, which was subsequently appealed to the Victorian Civil and Administrative Tribunal (VCAT). The case involved a complaint against the respondent, McGarvie, a legal practitioner, for professional misconduct. The misconduct in question included a failure to use best endeavours to complete work as soon as reasonably possible, ineffective and untimely communication with clients, and a breach of an undertaking to complete Continuing Professional Development requirements. The Commissioner recommended a sanction of a nine-month suspension of the respondent's practising certificate, followed by a restriction to practise only as an employee solicitor for 12 months.

The issues before the court were whether the recommended sanction was excessive and whether the VCAT erred in not taking into account the mitigating circumstances presented by the respondent. These circumstances included depression, illness, and financial difficulties, which the respondent claimed had impacted his ability to meet professional standards. The court was required to determine if the VCAT had appropriately considered these factors in its decision-making process.

The court found that the VCAT had failed to adequately consider the mitigating circumstances, resulting in reasons that were inadequate as they did not disclose the path of reasoning. The court applied the principle from Quinn v Law Institute of Victoria, which held that the reasons must disclose the path of reasoning to enable effective review. The court also considered the case of R v Verdins, which held that the sanction imposed must not be manifestly excessive. As such, the court found that the recommended sanction was indeed excessive, and it was not in line with the principles of proportionality and justice. The court re-sanctioned the respondent to a 21-month restriction to practise as an employee solicitor, taking into account the mitigating circumstances.

The final orders of the court were that the respondent's practising certificate be restricted to practising as an employee solicitor for 21 months, effective from the date of the decision. The court's decision underscored the importance of taking mitigating circumstances into account when determining sanctions for professional misconduct and the need for adequate reasons to be provided for such decisions.

Orders