Gullquist v Victorian Legal Services Commissioner
[2017] VSC 763
•14 December 2017
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 00392
MICHAEL GULLQUIST Plaintiff v VICTORIAN LEGAL SERVICES COMMISSIONER Defendant ---
JUDGE:
JOHN DIXON J
WHERE HELD:
Melbourne
DATE OF HEARING:
14 August 2017
DATE OF JUDGMENT:
14 December 2017
CASE MAY BE CITED AS:
Gullquist v Victorian Legal Services Commissioner
MEDIUM NEUTRAL CITATION:
[2017] VSC 763
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JUDICIAL REVIEW AND APPEALS – Application for leave to appeal from VCAT – Finding of professional misconduct under s 4.4.3(1)(a) of the Legal Profession Act 2004 – Whether question of law – Whether real or significant argument that Tribunal in error – Correspondence sent directly to judicial officer - No errors of law – Leave refused – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148; Professional Conduct and Practice Rules 2005 rr 18.5, 18.6.
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APPEARANCES:
Counsel Solicitors For the Plaintiff The plaintiff appeared in person For the Defendant Mr P Over The Victorian Legal Services Commissioner HIS HONOUR:
Introduction
1 On 3 January 2017, the Victorian Civil and Administrative Tribunal (‘VCAT’) found the plaintiff, Michael Gullquist, guilty of professional misconduct within the meaning of s 4.4.3(1)(a) of the Legal Profession Act 2004 (‘the Act’).[1] Mr Gullquist sought leave to appeal VCAT’s decision pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’), and the appeal was heard with the application for leave.
[1]Victorian Legal Services Commissioner v Gullquist (Legal Practice) [2017] VCAT 6 (‘VCAT’s Reasons’).
2 For the reasons that follow, the application for leave to appeal will be dismissed.
Background
3 Mr Gullquist is a legal practitioner who acted pro-bono for a client in a New South Wales Local Court proceeding. In the course of acting, Mr Gullquist wrote five letters of complaint addressed directly to the magistrate hearing the proceeding without copying in his opponent.
4 A complaint regarding this conduct was made to the Victorian Legal Services Commissioner (‘LSC’). After conducting an investigation, the LSC charged Mr Gullquist with breaching r 18.5 and/or r 18.6 of the Professional Conduct and Practice Rules 2005 (‘the Rules’):
CHARGE 1
Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act for engaging in conduct that involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence being his conduct:
(1) In respect of the 18 March 2014 letter:
(a)not promptly providing the letter to the plaintiff’s legal representatives or notifying them of it;
(b)breaching rule 18.6 of the Rules and, further, such breach being deliberate or reckless;
(2) in respect of the 23 March 2014 letter:
(a) sending the letter to LCM Andrews;
(b)copying the letter to the Judicial Commission of New South Wales;
(c)it was inappropriate and threatening especially since it was copied to the Judicial Commission of NSW;
(d)not obtaining the consent of the plaintiff’s legal representatives before sending the letter;
(e)not promptly providing the letter to the plaintiff’s legal representatives or notifying them of it;
(f)breaching rule 18.5 of the Rules, and, further, such breach being deliberate or reckless; and/or
(g)breaching rule 18.6 of the Rules and, further, such breach being deliberate or reckless;
(3) in respect of the 3 April 2014 letter:
(a) sending the letter to LCM Andrews;
(b)not promptly providing the letter to the plaintiff’s legal representatives or notifying them of it; and/or
(c)breaching rule 18.6 of the Rules and, further, such breach being deliberate or reckless;
(4) in respect of the 7 April 2014 letter:
(a) sending the letter to LCM Andrews;
(b)not obtaining the consent of the plaintiff’s legal representatives or notifying them of it;
(c)not promptly providing the letter to the plaintiff’s legal representatives or notifying them of it;
(d)breaching rule 18.5 of the Rules and, further, such breach being deliberate or reckless; and/or
(e)breaching rule 18.6 of the Rules and, further, such breach being deliberate or reckless;
(5)in respect of the 10 April 2014 email (and the second version of the 7 April 2014 letter):
(a)sending the letter to LCM Andrews;
(b)not obtaining the consent of the plaintiff’s legal representatives before sending the letter;
(c)not promptly providing the letter to the plaintiff’s legal representatives or notifying them of it;
(d)breaching rule 18.5 of the Rules and, further, such breach being deliberate or reckless; and/or
(e)breaching rule 18.6 of the Rules and, further, such breach being deliberate or reckless.
Particulars
The particulars relied upon are those set out in …
CHARGE 2
Further and in the alternative to charge 1, professional misconduct as defined at common law and within the meaning of section 4.4.3 of the Act for engaging in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable being the Respondent’s conduct:
Paragraphs 1 – 5 of Charge 1 were repeated.
The Rules
5 Rules 18.5 and 18.6 of the Rules state:
18.5A practitioner must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connection with current proceedings unless:
18.5.1 the court has first communicated with the practitioner in such a way as to require the practitioner to respond to the court; or
18.5.2 the opponent has consented beforehand to the practitioner communicating with the court in a specific manner notified to the opponent by the practitioner.
18.6A practitioner must promptly tell the opponent what passes between the practitioner and a court in a communication referred to in rule 18.5.
The hearing at VCAT
6 At VCAT, the LSC submitted that:
(a) all five letters breached rr 18.5 and/or 18.6 of the Rules;
(b) a course of conduct allegation was appropriate, as the course of conduct listed in the sub-paragraphs to Charge 1 collectively involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence;
(c) Mr Gullquist’s five separate communications were sent in circumstances of escalating concerns expressed by the opposing party, and this established that the conduct was professional misconduct and not unsatisfactory professional conduct.
7 Mr Gullquist, although self-represented on the application for leave to appeal, was represented before VCAT by senior and junior counsel. Mr Gullquist elected not to cross examine witnesses, did not give evidence, did not dispute that the 5 letters were sent to Local Court Magistrate (LCM) Andrews and copies were not sent to his opponents, admitted various breaches and did not make any allegations of inappropriateness or unfairness about how the application was formulated.
8 On his behalf, counsel:
(a) accepted that the letters of 23 March 2014, 3 April 2014 and 7 April 2014 infringed professional conduct rules 18.5 and 18.6 and that this amounted to unsatisfactory professional conduct;
(b) submitted that the breaches of those rules were neither deliberate nor reckless and did not constitute professional misconduct;
(c) submitted the 18 March 2014 letter and 10 April 2014 email did not amount to either professional misconduct or unsatisfactory conduct as Mr Gullquist did not deliberately or recklessly breach the conduct rules in respect of these two communications;[2] and
(d) made no complaint about the form of the application and did not claim that the administrative process that led to the charges being laid was inappropriate or unfair.
[2]In substance, the submission was that the 18 March letter did not contain any matter of substance and was an unexceptional letter between practitioners and a court. The 10 April email corrected an error in the earlier letter and the correction did not fall foul of r 18.5 as that communication also did not concern a matter of substance.
9 Relevantly to issues raised by Mr Gullquist, the Tribunal stated that:
(a) it assessed whether allegations against Mr Gullquist had been proved by the Briginshaw test;[3] and
(b) any finding made as to Mr Gullquist’s state of mind must be based on an inference drawn from the evidence, bearing in mind the principle in Bradshaw v McEwans.[4]The Tribunal’s task was to consider the weight of the combination of facts proved to its satisfaction and then to determine whether the combined weight of those facts and circumstances support the inference as a matter of probability.
[3]VCAT's Reasons [23], [25]; referring to Briginshaw v Briginshaw (1938) 60 CLR 336.
[4](1951) 217 ALR 1.
10 The Tribunal found the following facts.
11 On 18 March 2014, Mr Gullquist sent the local court the first of the five letters, addressed to the attention of the Civil Registrar. The letter enclosed an affidavit that set out historical matters, an analysis of an affidavit filed in the proceeding, and some submissions in support of the orders sought. Mr Gullquist did not promptly tell his opponents that he had sent the letter and did not promptly or at all provide them with a copy of the letter and the affidavit.
12 On 20 March 2014, at the hearing Mr Gullquist made no reference to his affidavit. Nor did LCM Andrews. It is evident that his Honour only received the letter and affidavit after the hearing on 20 March had concluded. Mr Gullquist’s opponents first saw them on 10 April 2014 when they obtained leave to inspect the court file.
13 On 20 March 2014, LCM Andrews refused Mr Gullquist leave to later file written submissions in reply and Mr Gullquist replied orally. The magistrate then adjourned the proceeding to 10 April 2014 for his decision.
14 On 24 March 2014, Mr Gullquist sent a letter dated 23 March 2014 to the magistrate copied to the Judicial Commission of NSW. The material parts of the letter were:
It concerns me that I should write to your Honour in respect of this matter however, I consider that my own professional reticence to do this, should not stand in the way of my client’s rights. I have still and have always had the utmost respect for our judicial officers at all levels whom, in my respectful view, perform one of the most difficult, important and yet thankless tasks within our community. I sincerely hope that your Honour will treat this communication in the respectful and constructive way, it is intended.
A key tenet of our justice system is, as the old adage goes, that justice must not only be done but must be seen to be done. A subset of justice being done is that the parties at the conclusion each feel they have had a reasonable hearing or, put another way, the parties both got a fair shake.
In my 35 years of a senior legal and business career (although, as I am sure will have been evident to you, mainly not spent as an advocate) I have extremely rarely felt at the conclusion of a hearing that the issues were not fairly heard- but I did in this instance. I was unable to honestly report to my client that I could discern that his application received a fair hearing.
At the heart of justice being seen to be done is consistency. With the utmost respect for your Honour and the position which you hold, consistency was entirely not in evidence during the hearing. For example- I endeavoured to hand –up to your Honour an affidavit by myself which did no more than exhibit the ASIC record of the principle place of business of one of the named parties to the agreement at the core of this matter. Your Honour refused point blank to allow it, notwithstanding my repeated request to re-consider the ruling and why any judicial officer would refuse to be informed by a record of the Commonwealth body responsible for maintaining such records, remains beyond me. Subsequently, opposing Counsel produced an unheralded set of signed consent orders in which one of the parties is no longer apparently a party to the proceeding. Your Honour accepted these for filing in this very proceeding, without even a query.
The inconsistency was on a scale I have never before witnessed and the proceeding was characterized by almost every submission I made being critically scrutinized and repeatedly challenged even to the point of culling paragraphs of my client’s affidavit material which were and remain, based on the authorities cited, plainly relevant. These were paragraphs which related to my client’s financial circumstance and the potential cost to him of being forced to litigate in NSW. This, of course, is at the heart of why there is a jurisdictional limit placed upon the Local Court and also at the heart of the concept of forum inconveniens. Indeed, one of the two decisions of Judge Ginnane of the Victorian County Court to which I referred your Honour was determined principally on material in the nature of that which your Honour struck –out of my client’s affidavit.
By contrast, the submissions of the other party were neither the subject of any probing question nor query upon your Honour’s part. Now, it may be that where one party had a very strong case in making its application your Honour’s approach is to test that position very robustly and I do accept what your Honour indicated to the parties at the commencement of the hearing that your Honour is an expert in criminal matters these days and has not addressed civil proceedings for a number of years. Nevertheless, virtually the entirety of the submissions of the other party related to the identity of a possible Sydney-based undisclosed principal and its right to bring the proceeding. Although not queried by your Honour none of this was anything to the point. Section 34 of the local courts act is expressed to be in terms of “ a material part of the cause of action”. Who may bring the action is an entirely different question and indeed Section 34 assumes that the party wishing to bring the action (whether a disclosed party or not) resides in NSW. This does not form any part of the cause of action itself.
Section 34, having assumed a NSW-based Plaintiff, addresses the further requirements for jurisdiction being either that the defendant is, at the time of service, resident in NSW OR that a material part of the cause of action arose in NSW. The residency of the plaintiff is assumed and thereafter has no relevance to the material parts of the cause of action.
Opposing counsel submitted that the payments made under the subject agreement went into a NSW –located bank account. But, of course, the document governing payments being the direct debit authority makes no mention of NSW but rather nominates a Victorian payee.
Your Honour, it cannot be that if a NSW –based painter travels to the UK and signs a contract with the Royal Family to repaint Buckingham Palace, the statutory jurisdiction of the Local Courts of NSW can be called in aid because the painter paid the Queen’s cheque into his Sydney held account. Your Honour can see the logic disconnect.
The arguments of opposing counsel regarding the ultimate place of receipt of the payments made in Victoria under the subject agreement will be readily apparent to Your Honour from his written submissions. This document forms my corresponding written submission. It will be further evident to your Honour that I do not accept that refusing my request to be also allowed to file a written submission was either fair or in the interests of justice nor satisfying the requisite provision of natural justice to my client.
15 The Tribunal found that the 23 March letter breached rr 18.5 and 18.6 of the Rules. This finding was not in issue before VCAT.[5] VCAT also concluded that the letter concerned a matter of substance,[6] was inappropriate[7] but not threatening.[8]
[5]VCAT’s Reasons [38]-[41].
[6]VCAT’s Reasons [73].
[7]VCAT’s Reasons [95] and [141].
[8]VCAT’s Reasons [82], [84] and [94].
16 On receipt of the 23 March letter, the court sent a copy of it to the plaintiff’s solicitor and an email to Mr Gullquist, copied to the plaintiff’s solicitor and counsel, advising that LCM Andrews would allow him to file by close of business on 4 April 2014 a short written submission in reply, with a copy to be sent to his opponent.
17 The plaintiff’s solicitor then complained to Mr Gullquist by email that it was most improper for him to write to the court in that way without advising them and providing them with a copy. Should he choose to do that again, the plaintiff’s solicitors indicated they would report him to the Office of the Legal Services Commissioner without further notice. The Tribunal found this email alone was a sufficient and explicit warning of the risk that writing to the magistrate without providing a copy to his opponent would be in breach of professional conduct obligations.
18 The plaintiff’s solicitors then wrote again to Mr Gullquist, stating:
We are staggered that a legal practitioner would send such correspondence to the court (copied to the Judicial Commission) at any time – let alone prior to the making of a decision when the judicial officer has already ruled that there could be no further submissions. The fact that it was not copied to us speaks volumes and the content of the correspondence is inexcusable.
We can assure you we will be taking this matter further.
19 On 3 April 2014, Mr Gullquist sent a letter to the magistrate which was not copied to the plaintiff’s legal advisers that attached the defendant’s written reply submissions, copies of two cases, an ASIC company search, and a copy of s 36 of the County Court Act 1958 (Vic).
20 The Tribunal found that the 3 April letter breached r 18.6 of the Rules,[9] which was not disputed by Mr Gullquist. The Tribunal also found that breach was reckless.[10]
[9]VCAT’s Reasons [50]-[56].
[10]VCAT’s Reasons [153].
21 On 7 April 2014, Mr Gullquist sent by email to the plaintiff’s solicitor (not copied to the court) the written submissions without the annexures provided to the magistrate. The plaintiff’s solicitors demanded to know when the submission was filed with the court and whether copies of the judgments and supporting documents were also provided to the court and complained again about not being copied into correspondence with the court.
22 The Tribunal noted that, again, this correspondence captured the essence of the professional conduct rules being offended.
23 After these emails, on 7 April 2014 Mr Gullquist wrote to the magistrate again, without copying the letter to the plaintiff’s solicitor. The material parts of this letter were:
The Plaintiffs’ solicitor has “demanded” that I supply him with a copy of my covering letter to yourself, forwarded with the written submission on behalf of my client.
That letter is addressed to yourself and I have informed my counterpart that a release of a copy to him, is a matter for the addressee ie yourself, I have no objection to you releasing a copy of the letter to him when the parties are next together, this Thursday 10th April.
In the interim, I have received a copy of the Plaintiff’s further written submissions dated 7 April 2014. Naturally contained therein, are alternate arguments regarding the applicable law and authorities and differing views of what the facts truly mean. However, I do not think it is helpful to submit bare falsehoods and to the contrary, I do think it is helpful to the Court to point these out.
At both paragraphs 10(a) and 10(b) the Plaintiff submits it does not know and that there is no evidence of the location of the account of Sweetwater Estate Pty Ltd, to be debited. At page 38 of the affidavit of David Joshua Edgeworth Simons, in opposition, you will see clearly in the Plaintiffs’ own document the address of the Sweetwater account at “Bendigo Bank 325-327 Racecourse Road, Flemington Victoria.” (copy attached).
24 Before the Tribunal, Mr Gullquist did not dispute that by the 7 April letter he breached rr 18.5 and 18.6. The Tribunal found that the letter breached these rules,[11] and was reckless.[12] Given the argumentative content of this letter, made without further leave from the court, the Tribunal also found that it was a serious matter that this letter was not copied to the plaintiff’s solicitors.
[11]VCAT’s Reasons [57]-[60].
[12]VCAT’s Reasons [153].
25 Mr Gullquist informed the plaintiff’s solicitor by email the following day that:
I have now advised His Honour of your demand and indicated to Him that I have no objection to the release of my covering letter but that, as he is the addressee, this is a matter for him.
I also indicated to him that the matters referred in paragraphs 10(a) and (b) of your clients further written submissions are falsehoods …
26 On 8 April 2014, the plaintiff’s solicitors replied by email demanding copies of all other correspondence with the court and that Mr Gullquist refrain from trying to engage in private correspondence with LCM Andrews .
27 On 9 April 2014, Mr Gullquist again wrote to LCM Andrews, noting there was a typographical error in the 7 April letter and providing a corrected replacement.
28 The Tribunal found that the 10 April email with the corrected version of the 7 April 2014 letter breached rr 18.5 and 18.6 of the Rules,[13] and was reckless but not deliberate.[14]
[13]VCAT’s Reasons [65]-[68].
[14]VCAT’s Reasons [100] and [153].
29 At the hearing before the magistrate on 10 April 2014, the plaintiff’s legal representatives obtained access to the court file and obtained copies of Mr Gullquist’s communications with the court and the enclosures/attachments.
30 The first issue raised was whether the 18 March letter was in breach of rule 18.5 as, Mr Gullquist argued, it did not concern a matter of substance. Although finding it was arguable that a reference to the letter would include a reference to that letter’s enclosures, the Tribunal concluded that the letter, of itself, concerned a matter of substance in connection with the proceedings because it concerned the filing of an affidavit for the purpose of the proceedings. I see no error in this finding. The Tribunal concluded that the 18 March letter was a communication with the court, and Mr Gullquist breached r 18.6 of the Rules because he did not promptly tell the plaintiff’s solicitors about it or provide them with a copy of the letter or its enclosure.[15]
[15]VCAT’s Reasons [73], [153].
31 The dispute concerning the 23 March letter was whether it was threatening. Mr Gullquist did not contest below that it was inappropriate.[16] The Tribunal considered it was not possible to conclude that the magistrate actually felt threatened by the letter, however that inference might be open as the letter was copied to the Judicial Commission. After careful consideration, the Tribunal concluded that it could not be satisfied that the letter was threatening.[17] Nonetheless, the Tribunal concluded that the letter was wholly inappropriate, and raised serious questions about Mr Gullquist’s professional judgment and competence.
[16]VCAT’s Reasons [77].
[17]VCAT’s Reasons [94].
32 The Tribunal also found that the 9 April letter was a communication about matters of substance. The Tribunal observed that Mr Gullquist thought the matter sufficiently significant to be brought to the court’s attention ahead of the resumption of the matter for final reply submissions and judgment. The tribunal reasoned, correctly in my view, that any communication that related to the submissions made by the other party was a matter of substance.
33 The Tribunal then turned to the issue of whether the breaches were deliberate or reckless. Noting that Mr Gullquist did not give evidence and that his actual state of mind was a matter for inference, the Tribunal identified the legal framework for such a finding,[18] drawing on Victorian Bar Incorporated v Molyneux (Legal Practice),[19] Zaitman v Law Institute of Victoria,[20] and Fidock v Legal Profession Complaints Committee.[21] Mr Gullquist did not suggest any error by the Tribunal in this analysis and I need not repeat it.
[18]VCAT’s Reasons [107]-[109].
[19][2006] VCAT 1417.
[20](Unreported, Supreme Court of Victoria, JD Phillips J, 9 December 2004).
[21][2013] WASCA 108.
34 The Tribunal analysed the facts extensively in order to determine what inference as to Mr Gullquist’s state of mind might properly be drawn.[22] I have carefully considered this passage in the Tribunal’s reasons, because Mr Gullquist, particularly in his written material, submitted that the tribunal erred as it was not open for it to draw the inference as to his state of mind or that such inference was not properly reasoned.
[22]VCAT’s Reasons [110]-[137].
35 It was open to the Tribunal to comfortably infer, as it did, that Mr Gullquist was aware of the possibility that if he continued to write to the magistrate without copying his correspondence to his opponent, he might be in contravention of the Rules.
36 The more probable inference was not that the litigation was fairly characterised as hotly contested as his counsel had contended, but rather that Mr Gullquist, aware of that possible risk because he had read the correspondence, wilfully turned his mind away from whether or not he would be in breach of the relevant rules and proceeded with reckless indifference, not caring whether failing to copy his correspondence to the plaintiff’s solicitor would be a contravention of the Rules. The Tribunal concluded:[23]
With Briginshaw in mind I am comfortably satisfied, and find, that Mr Gullquist’s breach of the relevant rules in the case of the 3 April, 7 April and 9 April letters was reckless.
I am not, however, comfortably satisfied that an inference can be drawn that Mr Gullquist deliberately contravened the rules in relation to those letters. The evidence comes close but not close enough in my view.
[23]VCAT’s Reasons [136]–[137].
37 The Tribunal concluded that where a single charge of professional misconduct is supported by particulars of a series of acts, each matter does not have to be proven and found in itself to be professional misconduct. Rather, it is necessary to consider whether the matters have been made out and then determine whether what has been proven constitutes professional misconduct or something less.[24] Mr Gullquist’s submission that his conduct should be categorised as no more than unsatisfactory professional conduct was rejected.
[24]VCAT’s Reasons [138].
38 The Tribunal rejected Mr Gullquist’s contention that the consequences of his conduct were minor. In particular, the Tribunal concluded that the 23 March letter was sufficiently serious or important to call into question Mr Gullquist’s fitness and competence to practise, representing an astonishing failure to reach the expected standard. The consequences were more serious than annoyance and delay. The 23 March letter put the magistrate in an extremely difficult and embarrassing situation and, by it, Mr Gullquist obtained a reconsideration by the magistrate of a ruling made at the hearing without his opponent knowing of the request or having the opportunity to argue against it, let alone the benefit of knowing what submissions had been put. This advantage was improperly obtained.
39 The plaintiff’s solicitor had no way of knowing what might have been said in the 3 April letter, but the consequences of Mr Gullquist’s failure to send his opponent a copy of the 7 April letter were even more serious because in that letter Mr Gullquist, without leave to do so, further submitted that the plaintiff’s submissions contained ‘bare falsehoods’. The Tribunal commented:
For Mr Gullquist to have denied his opponents a copy of that letter, and for them to have had to wait until they were able to inspect the court file on 10 April to see it is, in simple terms, outrageous.
40 Professional misconduct under s 4.4.3(1)(a) of the Act is conduct that involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. Mr Gullquist had submitted that the conduct could not be considered ‘substantial’ because it only related to one court proceeding, one hearing and a short time span. This submission, too, failed by reference to the nature and consequences of the conduct. The Tribunal concluded that the combination of the breaches of the Rules and the other findings in relation to the 23 March letter constituted a substantial failure to reach or maintain a reasonable standard of competence and diligence, and on 3 January 2017 found Mr Gullquist guilty of professional misconduct within the meaning of s 4.4.3(1)(a) of the Act.
41 At a further hearing on 1 March 2017, VCAT determined the appropriate penalty.[25] The Member considered a range of factors including the nature and seriousness of the conduct, the evidence of past disciplinary history, the degree to which the practitioner has insight into their conduct, mitigation and proportionality.
[25]Victorian Legal Services Commissioner v Gullquist (Legal Practice) [2017] VCAT 819 [11].
42 The Tribunal ordered that:
1. Under s 4.4.19(k) of the Act, Mr Gullquist is reprimanded.
2. Under s 4.4.19(c) of the Act, Mr Gullquist must undertake an additional 5 CPD units in Ethics and Professional Responsibilities in the period from 1 April 2017 to 31 March 2018. This obligation is additional to the obligations imposed on Mr Gullquist by the Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015.
3. Under s 4.4.19(d) and (g) of the 2004 Act, during the period of 2 years commencing from 1 April 2017, if Mr Gullquist acts for any client in respect of any litigation matter (litigation matter) and proposes to send correspondence addressed or directed to a judicial officer or quasi-judicial officer of a court or tribunal in the course of the litigation matter, he must arrange for a senior practitioner approved by the Applicant to act as his supervisor in the following limited way:
(a)he must first provide the supervisor with the proposed correspondence and provide the supervisor with a reasonable opportunity to comment on the communication before he sends it to the court or tribunal and the other parties;
(b)he must permit the supervisor to have access to and inspect the file for the litigation matter; and
(c)he is responsible for the costs and expenses of the supervisor.
4. The Tribunal being satisfied that ‘exceptional circumstances’ exist for the purposes of sub-clauses 46D(2) and (3) of Schedule 1 to the VCAT Act, Mr Gullquist is to pay 50% of the Applicant’s costs to be assessed on the standard basis on the County Court Scale by the Costs Court in default of agreement, to be paid within 24 months of the date of his discharge from bankruptcy (the discharge date).
5. Mr Gullquist is to advise the Applicant in writing of his discharge from bankruptcy within seven days of the discharge date.
The appeal
Mr Gullquist’s written submissions
43 Mr Gullquist sought leave to appeal, and if successful to appeal against VCAT’s orders made 3 January 2017 and the consequential orders that followed on the finding of professional misconduct. Mr Gullquist sought leave to rely on an amended Notice of Appeal dated 27 July 2017 that superseded his Outline of Submissions dated 30 June 2017 and his Outline of Submissions in Reply dated 21 July 2017.
44 Mr Gullquist’s amended Notice of Appeal sought:
(a) leave to appeal the Tribunal’s finding of 3 January 2017 (‘the Finding’) and the consequential orders made;
(b) that the appeal be allowed;
(c) that the finding of professional misconduct be set aside and in substitution Mr Gullquist be found guilty of unsatisfactory professional conduct pursuant to s 4.4.4(a) of the Act;
(d) order 4 of the 1 March Orders be set aside;
(e) orders 1, 2 3, and 5 of the 1 March Orders made by the Tribunal be affirmed;
(f) the LSC pay Mr Gullquist’s costs including the costs of the Tribunal; and
(g) in the alternative, in respect of the finding of professional misconduct, order 1 of the 3 May 2016 orders and orders 1, 2, 3, 4, and 5 of the 1 March 2017 orders be quashed.
45 Mr Gullquist’s primary claim was that the finding of professional misconduct was made in error and that even if it were set aside the penalty imposed by the Tribunal could stand, save for the costs order. It was only in the alternative that he contended that the penalty orders should be set aside.
46 Despite the straightforward nature of the relief sought in this court and of the proceeding in VCAT, the amended Notice of Appeal contains 23 grounds of appeal, cross referenced to 27 matters described as questions of law. The version of the Notice of Appeal on which the parties had prepared the appeal was confusing and distracting. Nevertheless, it was that document that was addressed in the written submissions. It purports to set out where, or how, the Tribunal erred in interpreting the Act,[26] how the charge was formulated,[27] and how the Tribunal failed to rely on established legal principles[28] and failed to apply laws of evidence.[29] Unhelpfully, the current version of the Notice of Appeal was not included in the court book.
[26]Amended Notice of Appeal dated 26 July 2017 [A]-[G].
[27]Amended Notice of Appeal [H]-[K].
[28]Amended Notice of Appeal [L]-[T].
[29]Amended Notice of Appeal [U]-[AA].
47 Mr Gullquist included the proposed amended Notice of Appeal in its stead. The principal amendments were the addition of ground 23, which added a new question of law and a new ground of appeal, and rephrasing of ground 21. The LSC opposed leave to add ground 23.
48 The proposed ground contended that the Tribunal erred in dismissing a subpoena directed to an officer of the LSC and by refusing Mr Gullquist the opportunity to complete a FOI application that was apparently directed at the documentation of the LSC’s decision to charge Mr Gullquist under the Act. These two alleged errors were impermissibly rolled up into a single ground. Further, the application was inexplicably well outside the time limit in respect of the dismissal of the subpoena while the FOI matter was the basis of separate proceedings in VCAT. On examining the chronology of events before the tribunal, I was satisfied that prior to the 9 November 2016 hearing, Mr Gullquist was given an opportunity to follow up on the FOI application and determined on that day to proceed with the hearing of the charges. Mr Gullquist did not contend that, after a trial date had been vacated affording him further time, it would be unfair to proceed before the FOI matter was resolved. He also accepted that the issue of his challenge as to whether the LSC officer who decided to lay the charges was in accordance with the statutory procedure was not an issue before VCAT at the primary hearing.
49 I refused Mr Gullquist leave to rely on ground 23.
50 Next, the Notice of Appeal listed the grounds of appeal consecutively numbered and the questions of law consecutively lettered. At the hearing, Mr Gullquist abandoned grounds of appeal 7, 8, and 9. These grounds were, he stated, the totality of the grounds that related to natural justice and procedural fairness considerations. That concession was self-evidently false. These grounds were cross-referenced to the questions of law lettered C, Y, M, A, L, G, J, K, W, X and Y. Mr Gullquist also abandoned grounds of appeal 21 and 22. These grounds were not explained, but were cross-referenced to the questions of law lettered C, G, J, K, W, X, and Y.
51 Further, Mr Gullquist stated that the following grounds were to be grouped and considered together: Grounds 1, 3, 4, and 5, Grounds 2 and 6;[30] 10, 11, 12 and 13;[31] and 17-20.[32]
[30]Related questions of law were lettered B, C, Y & I and A, B, C, I, Y and K.
[31]Related questions of law were lettered C, E, Y, N, F, Y and N.
[32]Related questions of law were lettered F, M, O, S, U, V, Y, W, G, R, S, and T.
52 According to Mr Gullquist’s groupings, the grounds that he wished to argue on the appeal reduced to 5 groupings are as set out below.
Grounds 1, 3, 4 and 5
53 These grounds were in respect of Mr Gullquist’s letters dated 18 March and 3 April (which were filing letters). Mr Gullquist contended in substance by these grounds that the Tribunal erred:
(a) in finding that those letters concerned matters of substance within the meaning of r 18.5 of the Rules;
(b) by denying Mr Gullquist natural justice and/or procedural fairness by taking into account matters not the subject of allegations against Mr Gullquist; and
(c) in making findings on matters of which Mr Gullquist was not charged, that Mr Gullquist had breached r 18.6 of the Rules which first requires breach of r 18.5.
54 The Tribunal failed to establish and set out the statutory framework of the matters the subject of the charge and misconstrued:
(a) the relationship between rules 18.5 and 18.6 (as a communication must first breach r 18.5);
(b) the relationship between the Act and established common law principles. In particular, that there is no law precluding a practitioner from communicating with a judicial officer;
(c) the interpretation of the Act which ought be read with common law principles without the need for being read down;
(d) the relationship between the overarching obligations placed upon practitioners by s 56 of the Civil Procedure Act 2005 (NSW) (‘NSW CPA’);
(e) by giving words their natural meaning; and
(f) by failing to interpret the statutory framework so as to promote the purposes of the Act.
55 The Tribunal failed to consider Mr Gullquist’s conduct in the context of the provisions of the NSW CPA and in particular how he acted for his client pro-bono.
56 The Tribunal misdirected itself that the Act enabled the aggregation of individual acts to create a cumulatively formed single event of professional misconduct (where each breach constituted unsatisfactory professional conduct). The Tribunal had relied on Woods v The Legal Ombudsman[33] that concerned the Legal Practice Act 1996 (Vic), which was distinguishable.
[33][2004] VSCA 247 (‘Woods’).
Grounds 2 and 6
57 Ground 2 was that the Tribunal erred in denying Mr Gullquist natural justice and/or procedural fairness in finding he breached r 18.5 of the Rules regarding the 18 March and 3 April letters. I note that continuing to press this ground was inconsistent with Mr Gullquist’s concession that he had abandoned the totality of the grounds that related to natural justice and procedural fairness considerations. How this denial of natural justice and/or procedural fairness occurred was not developed As best as I could understand this ground, it added nothing to the following ground.
58 Ground 6 was that the Tribunal erred in finding that the 18 March and 3 April letters breached r 18.5 of the Rules as they did not concern matters of substance. As the LSC did not allege that either letter breached r 18.5 of the Rules, the Tribunal neither considered the matters subject of the application, nor took into account the matters to which the charge related.
Grounds 10 and 11
59 Ground 10 was as the LSC did not call evidence from, or interview, LCM Andrews, the Tribunal erred in failing to infer from that decision not to call the magistrate that his evidence would not have assisted the LSC’s case, and by extension, that the letter was not inappropriate and the magistrate did not feel threatened by it.[34]
[34]The latter finding was not actually made.
60 Ground 11 was that the Tribunal erred in making a finding[35] concerning r 30 of the Rules, breach of which was not alleged against Mr Gullquist.
[35]VCAT’s Reasons [18] and [141].
Grounds 12 and 13
61 Ground 12 asserted that the Tribunal erred in failing to consider and apply the tests established by the authorities concerning written communications with a judicial officer.[36]
[36]Including the NSW Supreme Court of Appeal decision of Griffin v Council of the Law Society of New South Wales [2016] NSWCA 275 (‘Griffin’).
62 Ground 13 alleged that the Tribunal erred in applying incorrect tests in respect of the 23 March 2014 letter.
Grounds 14-16
63 Ground 14 was that the Tribunal erred in failing to appropriately consider or consider at all and place any/appropriate weight upon the primary purposes of the Act and the NSW CPA.
64 Ground 15 was that the Tribunal erred in failing to take into account or not placing any/appropriate weight upon the extent of a practitioner’s duty to represent their client.
65 Ground 16 was that the Tribunal erred in failing to place any/appropriate weight upon Mr Gullquist’s written responses that were put into evidence by the LSC in determining the nature and extent to which Mr Gullquist’s actions were informed by the appropriate authorities.
Grounds 17-20
66 Ground 17 was that the Tribunal erred in applying the Briginshaw[37] standard in respect of its finding regarding the advice provided to Mr Gullquist where a potential third party made copies of his 23 March letter and subsequent communications.
[37]Briginshaw v Briginshaw (1938) 60 CLR 336.
67 Ground 18 was that the Tribunal erred in taking into account the copying the 23 March letter to the Judicial Commission of NSW, as it was a communication that fell within the Commission’s purview as an element of alleged unsatisfactory professional conduct and/or professional misconduct.
68 Ground 19 was that the Tribunal made an irrelevant finding that the Chief Magistrates’ Office does not have a protocol whereby it makes decisions independent of the magistrate regarding the advice given to Mr Gullquist concerning his 23 March letter.
69 Ground 20 was that the Tribunal erred in relying upon the inexact proof contained in Ms Jacinta Heywood’s witness statement (CEO of the Chief Magistrates Executive Office).
Mr Gullquist’s oral submissions
70 Mr Gullquist’s oral submissions, as I understood them, clarified what he saw as his principal allegations of error by the Tribunal. He submitted that:
(a) the Tribunal misdirected itself in finding that individual events of alleged impugned conduct when added together became ‘substantial’ and amounted to professional misconduct given that only three letters could appropriately be categorised as unsatisfactory professional conduct. VCAT failed to consider the relevant statute and instead relied on case law;
(b) the Legal Profession Uniform Law Application Act 2014 and the Act contain no provision to bring a course of conduct charge. The Act is intended to capture individual acts of professional misconduct or unsatisfactory conduct. The decision in Woods relates to a charge of misconduct at common law rather than under the Act;
(c) VCAT erred as it was not open to find that r 18.6 of the Rules was made out by reference to r 18.5 of the Rules. VCAT did not cite a definition for the word ‘substance’ leaving the door open as to what definition applied. This makes the decision appealable as the natural and ordinary meaning of the word has not been employed;
(d) as to the remaining grounds, 4, 5, 11, 17-20, which concerned the finding of inferences and whether inferences could be drawn on the evidence as a question of law as opposed to a question of fact, Mr Gullquist submitted the interests in the administration of justice justified Mr Gullquist’s communications with the magistrate. The secondary purpose of the communication was to provide a scheme for discipline. The case of Griffin stands for the proposition that no discipline is warranted unless the communication falls foul of these requirements;
(e) the Tribunal erred in failing to consider the NSW CPA; and
(f) the LSC did not file a proper basis certification.
71 Mr Gullquist addressed the letters as follows:
(a) 3 April 2014 letter: it was not open to the Tribunal to make any finding about whether there was a breach of r 18.5 of the Rules as the charge is contained in r 18.6. It is in the interests of justice, in the exercise of the Court’s discretion, to determine that both the 18 March and 3 April letters do not fall within r 18.5 and cannot amount to professional misconduct;
(b) 7 April 2014 letter: the Tribunal correctly determined that this letter contained a matter of substance and was in breach of r 18.5 but not r 18.6 of the Rules; and
(c) 10 April 2014 email: the Tribunal found this essentially concerned a matter of substance and therefore a question of law.
The LSC’s submissions
72 The LSC submitted that Mr Gullquist ought not be granted leave to appeal for four reasons:
(a) the application for leave did not raise a question of law arising from the Tribunal’s orders concerning the conduct of hearings before it;
(b) the proposed appeal was an attempt to have this court re-hear the Tribunal’s application;
(c) Mr Gullquist had not identified any real or significant arguable case that the Tribunal fell into error of law in making orders or that its orders were attended by sufficient doubt;
(d) Mr Gullquist was attempting to argue a different case than that put before VCAT, namely by:
(i) resiling from his admissions (made by counsel) at VCAT;
(ii) criticising the Tribunal for not taking into account the NSW CPA which was not raised in argument before it by Mr Gullquist’s counsel;
(iii) only now submitting that the course of conduct nature of the charge gave rise to unfairness when the course of conduct nature of the charge was not disputed at VCAT;
(iv)raising the construction of the plain and ordinary meaning of r 18.5 and whether it was open to the Tribunal to make the finding that it made;
(v) arguing that only a communication in breach of r 18.5 will meet the requirement for r 18.6 to apply; and
(vi)disputing whether the 3 April letter was alleged to be a breach of r 18.6 where Mr Gullquist did not raise at VCAT if he could be charged in this manner.
Resolution of the application
73 Scattered through several grounds,[38] Mr Gullquist contended that the Tribunal misconstrued the phrase ‘any matter of substance in connection with current proceedings’ in r 18.5, and that the proper meaning of the rule can give rise to a question of law.[39] There is no substance in Mr Gullquist’s contention.
[38]Grounds 1, 3, and 6.
[39]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
74 The Tribunal identified that there was a contest as to whether the 18 March letter and the 9 April letter satisfied the matter of substance requirement.[40] The Tribunal was not invited to give the phrase anything other than its ordinary and natural meaning and the Tribunal did not conclude that it should do so. The Tribunal did not embark on any statutory construction question. Identifying the ordinary and natural meaning of the words in the phrase was a question of fact.[41]
[40]VCAT’s Reasons [69]–[70].
[41]S v Crimes Compensation Tribunal [1998] 1 VR 83, 88; Psychology Board of Australia v Mair [2010] VSC 628 [21].
75 Further, as the LSC submitted, it was open to the Tribunal to make the findings that the two letters satisfied the statutory description for the reasons that it stated. It cannot be said to have made an error of law in making findings that were open to it.
76 Mr Gullquist alleged that the Tribunal erred in law in not construing the Rules as requiring that a communication must first breach r 18.5 to fall within r 18.6.[42] This is an argument that was not made before the Tribunal. This contention is contrary to Mr Gullquist’s position taken at the Tribunal when his counsel conceded that the 3 April letter breached r 18.6 of the Rules when it was not alleged that he had, by that letter, breached r 18.5. As Mr Gullquist did not make this argument before the Tribunal the purported question of law does not arise in connection with the Tribunal’s order.[43] I would add that, for the reasons submitted by the LSC, the Tribunal did not err in its construction of r 18.6.
[42]Grounds 1, 2, and 6.
[43]CBL Insurance Ltd v Skordakis [2014] VSC 659 [83]–[90].
77 There were other references made by Mr Gullquist to the principles of statutory construction,[44] but he did not pursue any submission other than the submissions in relation to the rules that I have dealt with.
[44]For example Question of Law C in his Notice of Appeal.
78 Principally by ground 5, Mr Gullquist contended that the Tribunal misdirected itself that the Act enabled the aggregation of individual acts to create a cumulatively formed single event of professional misconduct (where each breach constituted unsatisfactory professional conduct). In doing so, the Tribunal relied on Woods,[45] which concerned the Legal Practice Act 1996 (Vic), and was distinguishable.
[45][2004] VSCA 247.
79 Apart from the fact that in Woods the court was concerned with the earlier Act, I found it difficult to follow Mr Gullquist’s submission. He seemed to be contending that in understanding the characterisation of his conduct the starting point was the statute which was the 2004 Act not the 1996 Act and that all that had been conceded was three separate events of impugned conduct out of five alleged, each of which constituted of itself unsatisfactory professional conduct but not more. It was impermissible to aggregate the conduct. Properly construed, such aggregation was not permitted by the 2004 Act.
80 He submitted that the term ‘conduct’ in Part 4.4 of the Act can only ever be a single event. As a matter of construction it cannot be a course of conduct as s 4.4.4(a) makes plain.
81 As the LSC pointed out, Mr Gullquist took no objection to the form of the charge before the Tribunal. Moreover, his admission that three letters constituted unsatisfactory professional conduct as charged by charge 1 was an implicit admission of the course of conduct that was charged.
82 A course of conduct charge is permitted under the Act. Nothing in the Act says otherwise. In Woods, an issue was whether the Legal Profession Tribunal had erred in hearing a charge of misconduct under the 1996 Act where the charge was based on 14 acts or omissions each of which was alleged individually to constitute misconduct. In the passage relied on by the Tribunal, Chernov JA (Batt JA and Gillard AJA agreeing) considered the application of the rule against duplicity in the contest of professional disciplinary proceedings, not the precise terms of the 1996 Act. His Honour identified that the underlying basis of the rule - fairness to the defendant and entitlement to natural justice - can operate in the context of disciplinary proceedings, such as proceedings for misconduct under the 1996 Act. Chernov JA stated, after a careful analysis of the cases:[46]
It follows, I think, that it is permissible to charge a defendant with misconduct on the basis of an alleged course of conduct even where each instance of impugned conduct may constitute misconduct, provided the defendant can understand the factual and legal bases on which the allegations are made so that the tribunal can determine whether evidence led is admissible and, if misconduct is established, can articulate the basis for the decision.
[46]Woods [2004] VSCA 247 [47].
83 The underlying basis for the rule continues to be applicable where professional misconduct is charged under the Act and the statute does not suggest otherwise. Section 4.4.4(a) states that without limiting sections 4.4.2 or 4.4.3, conduct consisting of a contravention of this Act, the regulations or the Rules is capable of constituting unsatisfactory professional conduct or professional misconduct. Section 4.4.3 is an inclusive definition of professional misconduct which includes unsatisfactory professional conduct that meets a defined standard and section 4.4.2 is an inclusive definition of unsatisfactory professional conduct. The latter definition plainly encompasses a course of conduct. It states:
"unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
84 As the LSC submitted, consistently with this construction, s 4.1.4(2)(a) of the Act expressly identifies that ‘conduct’ in Part 4.4 of Chapter 4 of the Act can consist of a course of conduct.[47]
[47]See also Stirling v Legal Services Commissioner [2013] VSCA 374 [38] where the charge concerned a course of conduct to which no objection was taken that it was inappropriate or impermissible.
85 The Tribunal made no error of law in its consideration of Woods. Further, the formulation of the charge was consistent with the principle identified in Woods. Both the parties and the Tribunal could identify the issues of fact that were to be determined in order to establish the charge and the Tribunal was able to determine the charge and set out its reasons for doing so.
86 By question of law D, Mr Gullquist submitted that the Tribunal erred as it should have found that the LSC could not bring a charge against him for common law professional misconduct as this was not contemplated by the Act. However, Mr Gullquist did not apply to the Tribunal to strike out charge 2 and the Tribunal was not asked to consider whether charge 2 was validly brought. This was a fresh argument that Mr Gullquist sought to raise that was not before the Tribunal. Further, it was not supported by a ground of appeal in his notice.
87 Mr Gullquist attempted to advance other arguments that were not made at VCAT.
88 He contended that the Tribunal erred in construing r 18.5 of the Rules by failing to consider a purported common law principle that a legal practitioner or member of the public may communicate directly to a judicial officer. This argument was not supported by a ground of appeal.[48] For the reasons already stated, it cannot give rise to a question of law.
[48]It was raised as Question of Law E in the Notice of Appeal.
89 As the LSC properly submitted, this complaint could only give rise to a question of law if the Tribunal was bound to take account of any such principle but failed to do so.[49] There is no common law principle to the stated effect, and Mr Gullquist did not refer to any case standing as authority for such a principle. He referred to Griffin[50] which is a case about an email from the practitioner to a judge’s associate that was found to be professional misconduct, and which provides no support for his contention.
[49]Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 722 [18].
[50][2016] NSWCA 364.
90 Mr Gullquist contended, in support of grounds 14–17, that the Tribunal erred in construing rr 18.5 and 18.6 by failing to consider the Civil Procedure Act 2005 (NSW) and the fact that he was acting pro bono. For the reasons already given, no error of law is shown. This contention was not advanced to the Tribunal. Such a complaint could only give rise to a question of law if it could be shown that the Tribunal was bound to take into account that matter and failed to do so.
91 By ground 11 of his Notice of Appeal, Mr Gullquist contended that the Tribunal erred in making findings in relation to charges that were not brought against him. He alleged that the findings were predicated upon facts not alleged in the charges, and this denied Mr Gullquist natural justice. Mr Gullquist informed me in argument that all natural justice grounds were abandoned. Further, Mr Gullquist did not identify the findings of fact impugned under this ground, although the ground of appeal refers to paragraphs [18] and [141] of the Reasons. No question of law arises in respect of those findings of fact by which the Tribunal characterised Mr Gullquist’s conduct. It did not find that he had breached r 30 of the Rules.
92 Next, Mr Gullquist contended that a question of law arose in respect of grounds 1, 5, 6, 7, and 21 that the Tribunal erred in law by determining that the charges and the particulars of the charged conduct were in a form that fell within the LSC’s authority under the Act. Mr Gullquist referred to the Tribunal’s determination at VCAT’s Reasons [72] that accurate formulation of charges is important, but that reference is nonsensical.
93 I could not determine from Mr Gullquist’s submissions what the error of law actually was. I think it probable that I have dealt with the thrust of this complaint, to the extent that any error was identified, when dealing with other grounds. The LSC submitted that the ground could be related to the determination of the seriousness of the breach in respect of which issue Mr Gullquist’s state of mind was relevant. If that be so, as the LSC submitted, the plaintiff was on notice that his state of mind at the time of the breaches was in issue. He made no complaint about the form of the application to the Tribunal and made submissions on his state of mind at the time of the breaches.[51]
[51]VCAT’s Reasons [111].
94 In his written submissions, Mr Gullquist alleged a number of errors of law that he grouped under the heading ‘Application of Established Principles’ that were variously cross-referenced to approximately 12 grounds of appeal. The first issue was whether any error of law had been exposed bearing in mind that a complaint that the Tribunal made an error of law by failing to consider a principle or matter or by not giving enough weight to that principle or matter could only give rise to a question of law if it was shown that the Tribunal was bound to take into account that principle or matter but failed to do so. Looking at questions of law L to T, as stated in Mr Gullquist’s notice of appeal, I am not persuaded that the plaintiff either submitted to the Tribunal that such principles and matters had to be taken into account or that the Tribunal was bound to take such principles and matters into account.
95 In his written submissions, Mr Gullquist submitted, as question of law L, that the Tribunal failed to apply the principles arising from Murray v Legal Services Commissioner.[52] The issue in that case concerned matters of procedural fairness arising from the construction of the applicable statute. As I have noted, Mr Gullquist did not press any ground of appeal touching on procedural fairness. In any event, for the reasons submitted by the LSC, there was no error of law in this regard.
[52](1999) 46 NSWLR 224.
96 By question of law M, Mr Gullquist contended that the Tribunal erred by incorrectly applying case law. His reference to case law may be a reference to Jones v Dunkel.[53] His submission failed to disclose what findings were affected by such error. It is neither appropriate nor helpful to deconstruct the various grounds of appeal cross-referenced to this particular question to sufficiently identify the content of Mr Gullquist’s contention. It may be, as the LSC surmised, directed at a complaint that the Tribunal ought to have inferred that the evidence of the magistrate would not be favourable to the LSC because he was not called to give evidence. However, no such inference was sought.
[53](1959) 101 CLR 298.
97 Question of law N appears to challenge the Tribunal’s finding that the 23 March letter was inappropriate and astonishing. This is a finding of fact not subject to review, and I agree with the LSC that the Member’s description of that letter does no more than characterise Mr Gullquist’s conduct. In oral submissions, Mr Gullquist clarified that his reference to the prevailing law was to the decision of the New South Wales Court of Appeal in Griffin. As the LSC noted, this decision was published after the hearing in the tribunal and shortly prior to the Tribunal’s decision. It is highly unlikely that the Tribunal was aware of the decision when its reasons were prepared.
98 The passage to which Mr Gullquist referred me was one where the Court noted an earlier statement by Spigelman CJ in New South Wales Bar Association v Cummins that identified four interrelated interests involved in the regulation of the conduct of legal practitioners:[54]
Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
[54](2001) 52 NSWLR 279, 284 [20] (Mason P and Handley JA agreeing).
99 No part of the Tribunal’s reasons is inconsistent with these observations. In Griffin, Sackville AJA continued from Cummins with an analysis of the case law and concluded:[55]
In my view, if a legal practitioner is accused of professional misconduct by reason of a communication to or about a judicial officer, more is required of the Tribunal than simply to characterise the practitioner’s conduct as “grossly offensive” and asserting that the conduct departs from the standards expected of a solicitor. These are conclusions that should be supported by an explanation of the reasons why the conduct amounts to a serious departure from the expected standards.
[55][2016] NSWCA 275 [110].
100 The Tribunal’s reasons explain why Mr Gullquist’s conduct in sending the 23 March letter departed from the standards expected and was ‘astonishing’ in the course of rejecting his submission that it was no more than ‘fearless advocacy’.
101 By question of law O, Mr Gullquist challenged the Tribunal’s finding that the 23 March letter was threatening. As noted above, the Tribunal did not make that finding.
102 Question of law S is another submission that fails to identify to what aspect of VCAT’s Reasons it was directed, referring vaguely to ‘a central allegation’ that was not proved against him. The question is said to arise in respect of grounds 11, 17, and 18 but reference to the text of those grounds does not identify what Mr Gullquist contended was the central allegation in issue. The LSC suggested that the central allegation that it did not prove was that the 23 March letter was threatening. The Tribunal’s approach to determining that the 23 March letter was not threatening, a finding in Mr Gullquist’s favour, did not give rise to any question of law or involve any error of law.
103 Finally, questions of law U–V are collected under the heading ‘Application of the Laws of Evidence’ and are cross-referenced to grounds 16–18. The premise appears to be that the Tribunal made errors of law in how it approached the evidence and in making findings of fact. These grounds are unclear and it is difficult to discern the questions of law that arise from the Tribunal’s orders.
104 I have noted how the Tribunal identified the applicability of the Briginshaw test and explained its approach to drawing inferences. On reading VCAT’s Reasons, a discernible question of law does not arise. As LSC submitted, s 98(1) of the VCAT Act is relevant to this inquiry.
Orders
105 Mr Gullquist did not identify an error of law about which there was any real or significant doubt such as would warrant leave to appeal in relation to any of the questions of law or proposed grounds of appeal identified in his submissions. I am not satisfied that the Tribunal fell into error.
106 Leave to appeal will be refused and the proceeding will be dismissed.
107 Subject to any further submissions from the parties, I propose to order that Mr Gullquist pay the LSC’s costs of the proceeding.
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