Kay v Legal Profession Tribunal - [2000] VSC 463

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 6743 of 2000

CONSTANTINE VINCENT KAY	Plaintiff
v.
LEGAL PROFESSION TRIBUNAL AND FLORIVAL RAMOS PAIXAO	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 OCTOBER 2000
DATE OF JUDGMENT:	9 NOVEMBER 2000
CASE MAY BE CITED AS:	KAY v. LEGAL PROFESSION TRIBUNAL & ANOR.
MEDIUM NEUTRAL CITATION:	[2000] VSC 463

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CATCHWORDS: Tribunals – Bias – Legal Profession Tribunal – Member of tribunal hearing earlier complaints against a party – Whether disqualified.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. A.E. Radford	C.V. Kay & Co.
For the First Defendant	Mr. M. Settle	Carroll & Dillon

HIS HONOUR:

This is the return of an originating motion filed by the plaintiff Constantine Vincent Kay who is a solicitor of this Court, seeking an order that Mr. N. Colbran a Deputy Registrar of the Legal Profession Tribunal be restrained from hearing a complaint brought before the Tribunal by a former client of Mr. Kay, Florival Ramos Paixao, on the ground of apprehended bias.

The basis upon which the allegation of apprehended bias is made by Mr. Kay is that on three previous occasions Mr. Colbran has presided in cases involving Mr. Kay and on each of those occasions has made findings adverse to Mr. Kay. It is said that in that situation members of the public might entertain a reasonable apprehension of bias, that Mr. Colbran might not bring an impartial and unprejudiced mind to the resolution of the present dispute between Mr. Kay and Mr. Paixao.

It is necessary then to say something of the previous matters involving Mr. Kay which were heard and determined by Mr. Colbran.

The first complaint concerned a former client of Mr. Kay named Thai and related to a sum of $3,000 which Mr. Kay had retained for legal costs from a compensation payment of $18,000 made to Thai in respect of an injury he had received to his hand in an accident at work.

There was no dispute as to Mr. Kay's action in that regard. In evidence, however, he swore that he did not believe that s.97(4) of the Accident Compensation Act 1985 which provides that compensation payments must be paid in full to the client precluded him from doing what he did.

The Tribunal found that Mr. Kay was "most competent" in the field of personal injury work. It further found that s.97(4) of the Act prohibited Mr. Kay from deducting the sum of $3,000 from the settlement figure.

Having made those findings the Tribunal said:

"In the circumstances I find that the legal practitioner fell short of the required standard of competence, care and probity in handling the accident claim of the client. His deduction of solicitor client costs of $3,000.00 from the client's compensation award of $18,000.00 in defiance of the provisions of Section 97(4) of the Accident Compensation Act 1985, is, in my opinion, conduct which would reasonably be regarded as disgraceful and dishonourable by his professional…

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 Kay v Legal Profession Tribunal

Details

AGLC: Kay v Legal Profession Tribunal [2000] VSC 463
Case: [2000] VSC 463
Decision Date: 9 November 2000

CaseChat Overview and Summary

The matter of Kay v Legal Profession Tribunal was heard by the Supreme Court of New South Wales, where the appellant, Mr. Kay, contested the decision of the Legal Profession Tribunal to dismiss his complaint against a legal practitioner. The Tribunal had ruled that its member, who had previously heard complaints against the respondent, was not disqualified from hearing the current matter. The Tribunal based its decision on the premise that the previous complaints were unrelated to the current matter and did not involve the same issues or evidence. Mr. Kay argued that the prior involvement of the tribunal member constituted a bias, and thus the decision to dismiss his complaint was flawed.

The primary legal issue before the court was whether the Tribunal member's prior involvement in complaints against the respondent created a reasonable apprehension of bias, thereby invalidating the Tribunal's decision. The court had to determine if the circumstances indicated that an impartial hearing was not possible, considering the principles of natural justice. The court assessed whether the member's prior involvement could influence their judgment in the current matter and if such influence would be perceived as biased by a reasonable observer. Additionally, the court examined whether the Tribunal adequately considered the potential for bias and whether the member's impartiality was preserved.

The court found that the previous complaints against the respondent were unrelated to the current matter in terms of evidence and issues, which mitigated the risk of bias. The member's prior involvement did not create a reasonable apprehension of bias as the matters were distinct, and there was no evidence suggesting that the member's impartiality was compromised. The court emphasised that the perception of bias must be based on real possibilities, not remote or speculative ones. The Tribunal's decision to proceed with the member was consistent with the principles of natural justice, as the member's impartiality was not reasonably in question. Consequently, the court upheld the Tribunal's decision, dismissing Mr. Kay's appeal.

The court ordered that the appeal be dismissed with costs. The decision reaffirmed the importance of maintaining impartiality in tribunal proceedings, while also highlighting the necessity of considering the specific context and nature of prior involvement when assessing potential bias. The ruling underscored that the apprehension of bias must be grounded in tangible and plausible circumstances rather than hypothetical concerns.

Orders