Kuek v Victoria Legal Aid and Ors
[2002] VSC 308
•2 August 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7943 of 2001
| GABRIEL KUEK | Plaintiff |
| v | |
| VICTORIA LEGAL AID & ORS | Defendants |
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JUDGE: | Nettle J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30, 31, July, 1 and 2 August 2002 | |
DATE OF JUDGMENT: | 2 August 2002 | |
CASE MAY BE CITED AS: | Kuek v Victoria Legal Aid & Ors | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 308 | |
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Legal practitioners – legal aid referral panel – application to set aside removal of practitioners from panel – section 30(18) Legal Aid Act 1978 (Vic)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C.M. Maxwell QC with Mr G.T. Connellan | Access Law |
| For the Defendants | Ms D.S. Mortimer with Ms Ellyard | Victoria Legal Aid |
HIS HONOUR:
This is an application pursuant to sub-s. 30(18) of the Legal Aid Act 1978 for an order setting aside the removal of the name of the plaintiff from a Legal Aid referral panel. The Act was amended in 1998 but I am concerned with the Act as it was before the amendment took effect.
The application was instituted by originating motion dated 12 October 2001 and no point is taken that it should have been brought as an appeal in accordance with order 4 of chapter 2 of the Rules of Court.
The facts, matters and circumstances relating to the removal are deposed to by the plaintiff in an affidavit sworn 16 November 2001 substantially in accordance with Rule 4.12(1)(a) and, in accordance with orders made by Master Wheeler on 7 November 2001, Grounds of Appeal dated 17 January 2002 were filed on 18 January 2002 in effect thereby satisfying the requirements of Rule 4.12(1)(b).
Despite the volume of evidence which is before me few of the facts of the matter are any longer in dispute. It is the interpretation to be placed upon them which principally calls for decision.
The plaintiff was admitted to practise as a barrister and solicitor on 2 November 1983. From April 1984 to June 1988 he was employed as a solicitor by the firstnamed defendant, Victoria Legal Aid, to which hereafter I shall refer to as VLA.
In July 1989 he obtained a full practising certificate and in or about July or August 1989 he was accepted for inclusion in a referral panel in accordance with sub-s. 30(5) of the Legal Aid Act. Since that time until his removal from the panel he, and the firm of which he is or was a member, represented a number of people receiving legal assistance.
On 20 January 1995 the plaintiff accepted a retainer pursuant to s. 30 of the Act to act as a solicitor for one Meng Kok Te in the defence of a criminal charge of trafficking in heroin on which Te had been committed to stand trial in the County Court at Melbourne.
On 5 April 1995 the plaintiff as solicitor for Te appeared at an arraignment hearing and informed the court that in his estimation the trial would take about one week to complete. On 19 May 1995 the plaintiff appeared before the Chief Judge and told his Honour that legal aid difficulties had been resolved. After further mention on 30 May 1995 the matter came on for trial before his Honour Judge R.P.L. Lewis on 3 July 1995. On that occasion the plaintiff had briefed Mr David Perkins of counsel to appear on behalf of Te. Mr Perkins noted that an interpreter was not available and informed the court that he did not consider that the trial would conclude before the end of July 1995.
Thus the matter was adjourned for mention on 4 July 1995, at which time one Theany Kang was sworn in as a Cambodian interpreter and the matter was referred for hearing to his Honour Judge Kellam.
The matter came before Judge Kellam on 10 July 1995. On that day, however, Mr Perkins on behalf of Te made application for a transcript translated into Cambodian and an additional copy of the English running transcript. On 26 July 1995 when those applications were refused Mr Perkins informed his Honour “That subject to his instructing solicitors having discussions with Victorian Legal Aid his (Mr Perkins) instructions were withdrawn.”
On 27 July 1995 the plaintiff appeared before Judge Kellam and told his Honour that there were two unresolved issues with VLA, the first concerning the provision of a second copy of the transcript, and the second concerning assistance to cover Mr Kuek’s perusal of the transcript. The plaintiff said that, providing arrangements adequate and satisfactory to Mr Perkins and himself were made by VLA, the plaintiff and Mr Perkins would be prepared to carry on acting for Te. He told his Honour, however, that, as matters stood, Mr Perkins' instructions had been withdrawn, because the plaintiff was not prepared to carry on the matter without proper funding for transcript for the accused and because the plaintiff did not wish to be liable personally for Mr Perkins' fees if funding were not available for the trial to proceed properly.
There was then an extraordinary exchange between the plaintiff and the judge. The judge asked the plaintiff whether he was prepared to get in touch with the director of criminal assessments or criminal assignments at VLA and have that person attend before the judge that day. The plaintiff refused unless directed by the court, saying that he did not have any instructions from VLA other than to tell the judge what had happened that morning at VLA. The judge asked the plaintiff to clarify the ambit of his instructions. The plaintiff replied that he was not there to be asked questions. The judge asked the plaintiff “to tell him, as solicitor, who had withdrawn Mr Perkins’ instructions”. The plaintiff refused to do so, by reiterating that he was present only for the purpose of telling the judge what had happened at VLA that morning. The judge again asked the plaintiff to clarify the ambit of his instructions. Again the plaintiff demurred. The judge asked the plaintiff to answer whether or not he had instructions to act on behalf of Te. The plaintiff responded that he would answer “under protest” because he was not present as a witness. Once more the judge asked the plaintiff to tell him whether he acted because, the judge said, he needed to know whether Te was represented or not. Only then did the plaintiff finally answer that he did act for Te.
At 2.15 pm that afternoon, the hearing resumed and evidence was given on behalf of VLA, that VLA had instructed the plaintiff and that the plaintiff had funding to act for the accused and for counsel for a 15 day trial including funding for a transcript on disk and for one hard copy of the transcript. The judge then asked the plaintiff again whether he was currently acting for the accused and the plaintiff replied in substance that he would not act on the terms allowed by VLA because, without funding to read the transcript, he could not carry out his duties as instructing solicitor. On the same day the plaintiff wrote to VLA that he was not prepared “to accept the grant of assistance” and that without proper facilities the trial was a “charade” and a “caricature of a trial”. The plaintiff asked for further funding to pay the plaintiff and counsel to peruse the transcript daily, for further funding to make application to have his Honour Judge Kellam disqualified for bias and, if that application were unsuccessful, for further funding to make application to the Supreme Court for orders restraining conduct of the trial until VLA had made a determination in respect of the plaintiff’s application to increase the level of funding. On 28 July 1995 the plaintiff failed to appear in court. In his absence, however, the judge ascertained by questions asked of Te, that Te still wanted the plaintiff and Perkins to continue to act for him and that Te had not instructed them not to come to court.
The matter was then adjourned to 31 July 1995 on which day Judge Kellam made an order under s. 360(A) of the Crimes Act 1958 that VLA appoint its Criminal Law Division to act as solicitor for Te.
On 1 August 1995 the plaintiff wrote to VLA advising that he acted for Te and requesting that the terms on which Legal Aid had been made available to Te be reviewed by a Legal Aid review committee on the following day. On 1 August 1995 a second letter signed by Te was sent to VLA in which it was said that Te wanted the plaintiff and Perkins to act for Te and in which it was requested that adequate funding be made available to allow that to occur. In accordance with Judge Kellam’s order of 31 July 1995, the VLA Criminal Law Division commenced to act as solicitor for Te and briefed Mr Cosgriff of counsel to appear on Te's behalf.
On 3 August 1995, Mr Cosgriff appeared before Judge Kellam and in the course of that hearing informed Judge Kellam that Te had withdrawn Cosgriff’s instructions and, as Cosgriff understood it, had also withdrawn instructions to Legal Aid. Judge Kellam ruled that regardless of whether that was so or not, the trial would proceed on the following Monday. Later on 3 August 1995, the plaintiff wrote again to VLA contending that the stance adopted by Judge Kellam had created what the plaintiff termed a crisis situation and urging VLA to consider Te's request for funding to apply to the Supreme Court for a stay. Later still that day, VLA resolved to fund a second hard copy transcript and to fund a search for an appropriately qualified Level 3 interpreter and, as appears later, to fund the attendance of that interpreter at court if he or she were located.
Unaware of that decision, on 7 August 1995 the plaintiff instituted Supreme Court proceedings for a stay on behalf of Te, apparently at the plaintiff’s own expense and without any assurance that he would be paid either by Te or VLA (although in 1996 he was reimbursed or at least received some payment from VLA for the costs of the application). On 11 August 1995, the plaintiff received a notice by letter from VLA of its decision of 3 August 1995 together with an invitation in the letter to make further submissions to VLA as to why additional fees should be allowed for the plaintiff to read the transcript. Shortly after receipt of that letter, probably on or about 12 August 1995, the Supreme Court proceedings were discontinued and the plaintiff recommitted to act as solicitor for Te for the criminal trial.
On 9 August 1995, Mr Grace QC appeared before Judge Kellam on the instructions of the plaintiff to seek a stay of the trial until a Level 3 interpreter had been located. On Mr Grace’s application, the matter was adjourned to 22 August 1995. On 22 August 1995, Mr Grace again appeared before Judge Kellam on the instructions of the plaintiff and told Judge Kellam that the application for stay was withdrawn but that Mr Grace wished to advance an argument under s. 51 of the Drugs, Poisons and Controlled Substances Act as to the admissibility of some of the evidence sought to be relied upon by the Crown. Judge Kellam adjourned the hearing to 25 August 1995, amongst other reasons to enable the preparation of written submissions on the s. 51 argument.
On 23 August 1995, the plaintiff tendered to VLA advice in writing received from Mr Grace that the proposed application under s. 51 was doomed to fail. On 24 August 1995, the plaintiff faxed to VLA seeking funding approval to brief Mr Perkins for the trial. VLA responded the same day that Mr Perkins might be briefed, but on no basis other than a scale fee. On 25 August 1995, Mr Grace appeared again before Judge Kellam on the instructions of the plaintiff and argued the application based upon s. 51 of the Drugs, Poisons, and Controlled Substances Act. On 28 August 1995 Judge Kellam delivered a ruling in which he dismissed the application made under s. 51.
Later on 28 August 1995, the plaintiff wrote to VLA that VLA’s refusal to agree to pay Mr Perkins a fee larger than scale meant that Te would not be represented by counsel at the trial.
On 29 August 1995 the plaintiff appeared before Judge Kellam and informed the judge that the plaintiff was representing Te as solicitor on the record, and that he would continue to act as solicitor for Te throughout the trial, but that he would not appear as counsel and that there were difficulties because, although Te had not withdrawn Perkins' instructions, Perkins was unwilling to appear. He said that he was not prepared to instruct another member of counsel unless the judge directed him to do so. Judge Kellam adjourned the matter to 30 August 1995 for the empanelment of a jury.
On 30 August 1995 Mr Perkins appeared before Judge Kellam and argued that the trial should be stayed until a level 3 interpreter was obtained and also that Judge Kellam should disqualify himself on the ground of apprehended bias.
On 24 October 1995 Judge Kellam ruled on those applications. With respect to the application to stay the trial until a level 3 interpreter was obtained, his Honour ruled that although he considered the then present interpretation services were adequate, in all the circumstances the wisest and safest course was to try and provide better services and that the trial should be adjourned for enquiries to be made as to whether any level 3 interpreter was reasonably available to be retained for the trial. In the course of the ruling, his Honour severely criticised the plaintiff’s and Mr Perkins' conduct of the trial and their professional conduct.
On 26 October 1995 Mr Perkins appeared before Judge Kellam again and informed his Honour that a Ms Ear, who apparently had been interpreting through most of the proceeding to that point, had gained her level 3 certification on 6 October 1995. Mr Perkins sought an adjournment to confer with Te about Judge Kellam's ruling of 24 October 1995, but he was unable to tell Judge Kellam whether he was retained for the trial.
On 27 October 1995, Mr Perkins, instructed by the plaintiff, again appeared before Judge Kellam and informed his Honour that Perkins was retained for the trial. Mr Perkins also made further oral submissions that Judge Kellam should disqualify himself for bias. At the conclusion of argument the matter was adjourned for the trial to begin on 11 November 1995.
Because of the criticisms made by Judge Kellam of the plaintiff, the plaintiff took the view that it would be inappropriate for him to continue to act and he appraised VLA of that view and VLA agreed with it. Consequently, on 2 November 1995, the plaintiff by arrangement with VLA returned to VLA the files in his possession relating to the defence of Te and subsequently other solicitors and counsel were retained to represent Te.
Following the trial Te was convicted on 29 May 1996 and in the course of his sentencing remarks, Judge Kellam again severely criticised the plaintiff and Mr Perkins. His Honour concluded that criticism with the observations which are set out at pages 23 and following of the independent reviewer’s reasons for determination (which are referred to below).
On 31 May 1996 VLA wrote to the plaintiff alerting the plaintiff to the judge's sentencing comments and on 11 June 1996 VLA wrote a further letter to the plaintiff inviting the plaintiff to respond to the comments. On 19 June 1995 the plaintiff wrote to VLA in substance that the plaintiff had not done anything wrong or improper and that Judge Kellam’s criticisms were unfounded.
On 20 September 1996 VLA wrote to the plaintiff that VLA was considering removing the plaintiff's name from the referral panel. The plaintiff responded by letter dated 23 September 1996 seeking full particulars of the reasons for removal. On 11 December 1997 VLA wrote to the plaintiff that the board of VLA had decided to remove the name of the plaintiff and the name of his firm from the panel. On 24 December 1997 the plaintiff wrote to VLA stating his intention to show cause, pursuant to sub-s. 30(10) of the Act, why his name ought not be removed.
On 23 March 1998 Mr Kiddle was appointed as independent reviewer pursuant to sub-s. 30(12) of the Act, but Mr Kiddle's appointment was later set aside on the ground of bias by order made by Smith J. On 18 May 1998 Mr Martin Ravech QC was appointed independent reviewer. On 5 October 2001 Mr Ravech determined that the plaintiff should be removed from the panel for a period of four years. In this proceeding it is that determination which the plaintiff seeks to have set aside.
Shortly after the hearing of this matter began before me on 30 July 2002, I was told by Mr Maxwell QC, who appeared with Mr Connellan for the plaintiff, that the plaintiff abandoned all grounds of appeal except grounds 2, 4, 9, 16, 21 and 22. Then, on the morning of 31 July 2002, Mr Maxwell applied ore tenus further to amend the grounds of appeal, in substance, by substituting six new grounds in terms which he then outlined and which later he reduced to writing and brought into court.
After allowing time for Ms Mortimer, who appeared for VLA, time to consider the proposed amendments and hearing her submission, I allowed the plaintiff leave to substitute the five new grounds for the remaining original grounds of appeal but refused leave to rely upon a proposed new sixth ground of appeal. I did so after it became apparent either that the sixth ground did not add anything to what was contained in the first five grounds, or that it was not pressed.
Both parties submitted that I should treat the proceeding as an appeal in the strict sense, in accordance with the decision of Warren J in McGregor v Victorian Legal Aid[1] and I propose to do so.
[1][1999], VSC, 448. See especially at paragraphs [11] and [12].
I adopt, with respect, what her Honour had to say about the nature of this sort of proceeding and her Honour’s reasons for concluding that such a proceeding is in the nature of an appeal in the strict sense, as to both matters of fact and questions of law.
There is, however, a dispute between the plaintiff and VLA as to whether the decision to remove the plaintiff from the panel was a discretionary decision and thus whether in order to succeed in this proceeding it is necessary for the plaintiff to establish appellable error of the type discussed in House v The King[2] or, alternatively, whether it is enough for the plaintiff to establish that the decision is wrong on the evidence or the law, as it stood when the decision was given, and have me reach a different view upon that evidence and law.
[2](1936) 55 CLR 499 at 505.
The plaintiff submitted that the decision to remove was not discretionary but accepted that the decision, insofar as it determined the period of removal, was discretionary. VLA contended that the whole of the decision, both to remove and as to the period of removal, was in truth only one decision which was discretionary. Alternatively, it was said that even if there were two decisions, both of them were discretionary in the relevant sense.
It was suggested by VLA that Warren J had determined in McGregor’s case that a decision to remove a practitioner from the panel is a discretionary decision. I do not read her Honour's reasons for judgment as going that far, not least for the reason that it was unnecessary for her Honour to decide that point.
In my view, however, the decision to remove the plaintiff from the panel was a discretionary decision.
I recognise the force of the submission made by Mr Maxwell that, because such a decision may severely affect the rights of a practitioner, a court should be slow to conclude that the decision is discretionary. But I reject Mr Maxwell’s submission that the decision of Finn J in Buck v Comcare[3] compels the conclusion that the decision should not be regarded as discretionary.
[3](1996) 66 FCR at 359.
Buck’s case was concerned with a provision of the Safety Rehabilitation and Compensation Act 1988 (Cth), which provided that an employee’s right to compensation under the Act was suspended if the employee failed to undergo medical examination “without reasonable excuse”. Finn J held that the question of whether an employee had refused examination without reasonable excuse was one which a court of competent jurisdiction could itself decide and was not to be treated as if the words, “in the opinion of Comcare” were inserted in the provision. His Honour so concluded because in his analysis the section said what it meant[4]. But that seems to me to be a long way from this case, where the position is that sub-s. 30(8) of the Legal Aid Act confers a power of removal on VLA which, in terms at least, is untrammelled and sub-s. 30(10) affords the affected practitioner an opportunity to “show cause” why he or she should not be removed. In my view those provisions bespeak a decision‑making process which is discretionary in nature.
[4]ibid at p. 360 line A.
Moreover, to adopt and adapt what was said in the joint judgment of Gleeson CJ and Gaudron and Hayne JJ in Cole v Allied Operations Pty Ltd andAustralian Industrial Relations Commission[5] it seems to me the decision to remove, and the decision as to the period of removal, both entail a decision‑making process in which no one consideration and no combination of considerations is necessarily determinative of the result. The function of VLA is to ensure that legal aid is provided in the most effective, efficient and economical manner. And, as Warren J observed in McGregor’s case[6], the statutory role and functions of VLA support the principle that the role of VLA is to ensure that practitioners to whom legal aid work is allocated provide legal assistance to assist persons in a manner which is effective, efficient and economical. That being so, and I do not take it to have been disputed, it must follow that a decision as to whether a practitioner’s conduct warrants removal of the practitioner from the panel entails a decision‑making process in which no one consideration and no combination of considerations is necessarily determinative of the result, and therefore is discretionary.
[5](2000) 203 CLR 194 at [19].
[6]At [32].
Accordingly, I consider that in order to succeed in this proceeding, it is incumbent upon the plaintiff to show that the independent reviewer committed appellable error by taking into account irrelevant considerations or ignoring relevant considerations or otherwise acting unreasonably in the sense explained in House v The King. I add that, to some extent, I am confirmed in that view by the fact that what is provided for in sub-s. 30(18) is not in terms a right of appeal but rather an application to this Court to have the decision “set aside”.
In case, however, I am wrong in that view, and the question of whether cause was shown is one for me to decide, I propose to consider the matter by reference to that test also: see and compare Australian Heritage Commission v Mount Isa Mines Ltd[7]; Enfield Corporation v Development Assessment Corporation[8]; Cabal v Attorney General[9]; Aaronsen and Dyer[10]. A large volume of evidence has been tendered to me and I have had the benefit of detailed oral and written submissions from counsel. It is appropriate in the circumstances that I assess the question by reference to both of the possible tests.
[7](1997) 187 CLR 297 at p. 304.
[8](2000) 1999 CLR 135 at p. 146.
[9](2001) 113 FCR 154 at [76] to [85].
[10]Second Edition at pages 154 et seq.
Accordingly, I turn now to the specific ways in which it was said on behalf of the plaintiff that the independent reviewer had erred.
The first and principal complaint (which is encapsulated in the first and perhaps in part in the second amended ground of appeal) was that the independent reviewer had erred in concluding that the plaintiff’s withdrawal from the criminal trial, whether alone or in conjunction with any other consideration to which the reviewer had regard, constituted sufficient grounds for removal from the referral panel. The passage of the reviewer’s decision to which that complaint is directed appears at pp.23, 30, and at 34 by a reference back to the earlier places as follows:
“(41)On 29 May 1996, Judge Kellam in sentencing Te, following conviction, said (Document 254, pp. 894 to 896) inter alia:
‘Furthermore, it is appropriate that I turn to one other matter. I have already referred to the 33 days the court sat during 10 July 1995, and 10 November 1995, in the context of delay in this matter coming to trial, such delay not being attributable to you.
A substantial part, if not all, of the cost of your representation during that time fell upon the Legal Aid Commission. The cost to the prosecution and to the community of the court sitting on those days, was no doubt substantial indeed. That time and the costs incurred were, at least to a significant degree, wasted by the necessity to recommence the trial with new solicitors and counsel being retained on your behalf by the Legal Aid Commission in November last year.
The major cause of that waste was the failure of your then solicitor and your then counsel, who were, during the period in question retained on your behalf, to undertake the duties they owed to you and to the court in a competent, efficient manner, and in a spirit of co-operation with the court.’
His Honour then referred to remarks of Ashley J in an unreported decision dated 12 May 1994 of Willis v. McColl & Ors to which I will refer in respect of other contentions.
His Honour then went on:
’In this case, the competence and efficiency of your present solicitor’s counsel, and of Mr Grace QC, who was retained at one point on your behalf, makes striking comparison with what preceded it.’
His Honour then went on:
’A consideration of what has occurred in this case, and in other cases (such as Willis v. McColl above and Stefanovski v Murphy & Ors. Appeal Division, Supreme Court of Victoria) unreported (5/5/95, and Norton v. Morphett, Court of Appeal) unreported, (31/10/95 and Murray v. Director General Health & Community Resources, Supreme Court of Victoria) unreported (Eames J 23/6/95) leads me to say that the Legal Aid Commission of Victoria must be given support if it exercises its discretion to ensure that members of the profession who persistently abuse the privilege, and responsibility they have as legal practitioners, and who in consequence, substantially consume Legal Aid funds and community resources not be funded or attained by the Commission.’
Contention 75 rehearses some remarks made by Kellam J in paragraph 41 and taken up by the Court of Appeal.
(42)On 30 October 1997, the Court of Appeal dismissed Te’s application for leave to appeal. In the course of his judgment, Phillip JA referred (Document 255 p.11) to the way:
’33 days were spent during 1995 in sometimes fruitless debate on so called preliminary issues (including, for instance, a hopeless application that a full running transcript, translated into Cambodian, be provided to the applicant at no cost to him.)’
He referred also to the manner in which Judge Kellam had ‘roundly criticised’ the way Te’s case had been conducted, and said that, ‘That criticism was fully justified.’…
It is my opinion that the various passages cited from the rulings and remarks of their Honours, Judge Kellam, Judge Lewis, and the judgment of Phillip J.A. on the Court of Appeal, establish very clearly that the conduct of Mr Kuek, in the course of appearing for Mr Te, was ineffective, uneconomical, and inefficient.
Inevitably, this affected the ability of VLA to manage its resources to make Legal Aid available at a reasonable cost to the community.
Indeed, it is difficult to imagine how an intelligent person like the practitioner (for so I adjudge him), could have devised a way in which he could have been less effective in pursuit of his client’s interests, less efficient, and given less thought to VLA’s responsibility for its funds than he did over the 33 wasted days.
C Section 16.”
I put aside for the moment the “other considerations” referred to and concentrate on the withdrawal from the trial. I do so because if it were necessary for me to decide whether the plaintiff’s withdrawal from the criminal trial was sufficient reason to warrant his removal from the panel, I would say that it was. The plaintiff’s client Te was in the middle of criminal proceedings, and the plaintiff had agreed many months earlier to act for the plaintiff for the duration of those proceedings on the terms as to fees and otherwise offered by VLA. Te wanted the plaintiff to continue to act, and there was no conflict of interest or other ethical considerations which stood in the way of the plaintiff continuing to act. Yet the plaintiff, for no reason other than that he was dissatisfied with the terms of the retainer to which he had agreed, walked out on Te contrary to Te's wishes, and in breach of the plaintiff's retainer, leaving Te - at least for a period - high and dry without legal representation. I therefore agree with the decision of the independent reviewer that it is difficult to conceive of a less effective, less efficient, and less economical way of delivering legal services to Te when he was badly in need of those services, and I observe as a matter of both common sense and experience that if similar conduct were engaged in by a solicitor representing a fee paying private client, it is overwhelmingly probable and eminently reasonable that the client would thereafter and forever wish to have nothing further to do with the solicitor.
In forceful and painstaking submissions, it was submitted on Mr Kuek's behalf that the plaintiff’s withdrawal from the proceedings should be seen as motivated by a wish to get for Te an additional copy of the transcript and better interpreter services and thus, even if the walk out were misguided, it should not be seen as such as to warrant the removal of the plaintiff’s name from the panel. It was submitted that the verity of the plaintiff’s position was confirmed by the fact that after the walk out, VLA agreed to fund a stay application and to fund a search for a better qualified interpreter, and to fund the interpreter if such were found, and to fund the further hard copy of the transcript, and that Judge Kellam had allowed an adjournment while a Level 3 interpreter was searched for.
I am unable to accept those submissions, because, even if the plaintiff’s withdrawal were wholly motivated by a wish to obtain better services for his client, the withdrawal would still be so serious and in breach of professional obligations owed to both the client and VLA as in my opinion to warrant removal of the plaintiff from the panel. But in addition to that, I consider it to be clear that the withdrawal was not wholly motivated by the client’s interests. It was also motivated by a desire to induce VLA to agree to pay additional fees to the plaintiff to read the transcript and to pay a higher fee to counsel than had been agreed upon.
It was submitted on the plaintiff’s behalf that the desire to be paid an extra fee to read the transcript should not be seen as an attempt to improve the rate of fees already agreed upon, because, it was said, the fee agreed upon had been set on the basis that it would not be necessary for the plaintiff to read the transcript and thus it was not intended to remunerate that task.
Having regard to the correspondence, including in particular the contents of VLA's letter of 11 August 1995 to the plaintiff, I accept that the fee which was set for the plaintiff was not intended to cover the work of reading the transcript each night. That was so because when the fee was set, it was not envisaged that it would be necessary for the plaintiff to read the transcript each night.
I am not satisfied, however, that the request for additional fees to read the transcript was wholly motivated by a desire better to serve the interests of Te. It was not explained to me why it was necessary for the plaintiff, as opposed to counsel, to read the transcript and I note that when VLA afforded the plaintiff the opportunity to explain the necessity, by making further submissions as to the reasons for granting funding for reading, he did not attempt to do so. I conclude that the demand for additional fees for reading was motivated, at least to a significant extent, by the plaintiff’s self interest just as, if not more so, was the demand that counsel’s fee be increased.
I also reject the submission that what happened after the walk out, in the sense of VLA’s agreement to provide increased funding and Judge Kellam’s adjournment of the proceeding in order to locate a properly qualified interpreter, in any way vindicates the plaintiff’s position. For even if those things established beyond question that the trial should have been stayed and an additional transcript should have been provided when first those things were sought - and I do not consider that they do - that would not justify or in any way lessen the gravity of walking out on the client at the stage the proceedings had reached. If the plaintiff and counsel truly considered that it was essential that there be a stay, it was plainly open to them to make application to this Court for appropriate orders, if necessary even as the trial proceeded.
Alternatively the refusal of a stay could have been noted and later made a ground of appeal just as it was successfully in Dietrich v R[11]. There was no need and no justification to walk out on the client in order to achieve the ends claimed to be desired.
[11](1992) 177 CLR 292.
It was submitted on behalf of the plaintiff that although he did walk out, the walk out was only of short duration and that, even while it lasted, the plaintiff worked without any assurance of pay on behalf of Te to obtain a stay order from the Supreme Court and otherwise. Moreover it was said that, once VLA made additional funding for transcript and interpreter available, the plaintiff did not continue to seek additional fees for himself and was unconditionally committed to acting as solicitor for Te for the duration of the trial. Thus it was submitted that, although the walk out itself might not be justified, it should be seen as being not as serious as otherwise it might have been.
I accept that the walk out was of relatively short duration. In effect it lasted only from 27 July 1995 until on or about 11 August 1995 when the plaintiff recommitted unconditionally to the role of trial solicitor. I agree that makes the walk out less serious than it would have been if the plaintiff had not recommitted to the role of solicitor. It also makes a difference, I think, that in the period of the walk out steps were taken by the plaintiff on behalf of Te by application to the Supreme Court. That may go to how long the period of removal should be. But I am clear that it does not mean that the plaintiff should not have been removed from the panel.
There is then the matter of the “additional considerations” to which the independent reviewer had regard. They are to do with Judge Kellam’s criticisms of the way in which the Te defence was conducted whilst the plaintiff remained as solicitor and with other occasions, during other criminal proceedings in which the plaintiff was retained to defend persons (not necessarily all or any of whom were legally assisted), in which the judges severely criticised the way in which the plaintiff conducted the proceedings.
As far as the first of those matters is concerned, I have already referred to the observations made by Judge Kellam on 24 October 1995 and during the course of his sentencing remarks on 29 May 1996 and I will not repeat them. There are also the observations made by Phillips JA in the Court of Appeal, when rejecting an application made by Te for leave to appeal from conviction, which are in the passage from the determination of the reviewer earlier set out.
The second matter was Stefanovski v Murphy[12] which was a proceeding comprised of four appeals to the Appeal Division of this Court from decisions of single judges dismissing appeals brought by originating motion under Order 56 from rulings of magistrates in the course of criminal proceedings. The plaintiff acted as solicitor for the appellants and briefed Mr Perkins as counsel to appear on their behalf. Each of the appeals failed and the arguments which had been presented on behalf of the appellants were criticised by the court.
[12](1992) 2 VR 422.
At [1996] 2 VR at p. 443 Tadgell J said:
“The arguments for the appellants for the greater part of it were so scattered and unpenetrating as not to come close to showing error attending any of the four cases in the refusal of remedy by way of judicial review.”
At (1996) 2 VR at p. 453 Teague J said:
“As to the present appeals, apart from the questionable choice of procedure, criticism is appropriately directed to the drafting of the originating motions, the drafting of the notices of appeal, the drafting of the outline of the appellants’ arguments and to the relative disregard of the need to exercise restraint as to the time spent in oral argument. Although a detailed listing of deficiencies is not called for, it ought to be noted, as Ashley J. noted when hearing the application for review in Stefanovska and Stefanovski, that certain of the deficiencies were a major cause for concern. For example, although the outline contained many quotations, it often lacked statements of the particular propositions which the matters quoted were supposed to support. In certain respects, the outline was a classic example of how the use of a computer can impede, rather than assist, comprehension. There was no time to permit an oral reply to the submissions made on behalf of the respondents. The written reply was added to the many addenda to the original 51 pages ‘outline’.
Over the four appeals, there were 79 grounds of appeal. Many covered the same subject-matter. During oral argument, the grounds of appeal relating to only one subject matter, as to the obligations of a magistrate to take and provide notes of proceedings, were expressly abandoned. However, others were the subject of some argument which was incomplete although there was no express abandonment. It is appropriate in this regard that there should be an outline of the position as to four matters: the whole of the Nguyen appeal and the claimed errors of the magistrate in rulings as to particulars in Stefanovska, to documents in Stefanovska and to a no case submission in Stefanovski.”
The third matter was Director of Public Prosecutions v Sarosi[13] which was an appeal to this Court heard by Harper J. The plaintiff had acted for Sarosi in the Magistrates’ Court, on which occasion he had instructed Mr Perkins to appear as counsel, and also acted on the appeal to this Court, on which occasion he instructed Mr Nash QC and Mr Lindenar to appear. The appeal succeeded on the basis that the magistrate had denied the appellants procedural fairness, but at paragraph 3 of his Honour’s reasons for judgment, Harper J criticised the conduct of the appeal and of the proceedings below, in the following terms:
“3.It is not difficult to understand how the hearing took the torturous course which it did. The affidavit of the respondent’s solicitor itself demonstrates, in the deponent, an extraordinary lack of tact, common sense and any appreciation of the way the legal system ought to operate. It also tells a tale of inexcusable obfuscation by the respondent’s legal advisers. They, and in particular his counsel, a barrister of 28 years’ standing (who did not appear on the appeal), transformed what ought to have been a straightforward hearing, after which the prosecution case may or may not have succeeded, into a travesty of the adversarial system of justice. Points good or bad were taken indiscriminately, and argued far beyond the point at which argument ought to have stopped. The prosecution was damned if it did and damned if it did not. Things were turned on their head to the extent that the production by the prosecution of photographs of the respondent was said to be part of a cover-up: see paragraph 131 of the affidavit of the respondent’s solicitor. A subpoena was directed to the Ethical Standards Department of the Victoria Police, requiring the production of all police complaint files relating to all prosecution witnesses. One rationale for the issue of this subpoena was that it would show, ‘on a similar fact basis’, that Mr. Barlow had a propensity to violence: affidavit of Sergio Petrovich, paragraph 69. The truth that the rationale for the admission of ‘similar fact’ evidence has nothing to do with attacks on the credit of prosecution witnesses was either forgotten or never understood. Here, Mr. Sarosi’s counsel apparently saw some tactical advantage in taking the concept to heights undreamt of in orthodox legal circles: it seems that he saw it as the springboard of an attack on the credit not of Mr. Barlow alone, but of all prosecution witnesses. Somehow, the fact that Mr. Barlow was not the man charged, and had in any event admitted striking the respondent, was lost in the morass which this hearing had become.
4.The litany of the improprieties which attended the proceedings in the Magistrates’ Court does not end there. Issues of credit were raised at every juncture, and pursued without any regard for the proper limits upon such investigation. The use of the notes to refresh the memory of a witness was the basis for attacks which generated much heat and little light. Points of law were taken where none existed. Substantive hearing turned into voir dire and back again. All over an incident in a hotel car park which began and ended within a matter of minutes. Such was the constant barrage of vacuous, rambling and almost unintelligible submissions that, not surprisingly, the prosecutor and the magistrate lost all sense of direction.”
[13](2000) VSC 771.
Mr Maxwell submitted that the independent reviewer had erred in placing any weight upon these other considerations because each of them amounted to no more than gratuitous judicial observations on matters which were not the subject of the proceedings in which they were made, and in respect of which no notice or opportunity to be heard had been given to the plaintiff. In Mr Maxwell’s submission, to place any reliance upon the observations in those circumstances would amount to a denial of procedural fairness because, in effect, the judicial observations were nothing more than untested opinions about the accuracy of which there could be no certainty or confidence.
Mr Maxwell submitted that if VLA wished to place reliance upon the way in which the plaintiff had conducted proceedings in other matters, it was incumbent upon VLA in effect to start afresh and enquire into those matters with full rights of audience to the plaintiff and without any pre-conceptions based upon judicial observations. Otherwise it was said that it would be a denial of procedural fairness constituted of breach of the bias rule.
I do not accept those submissions. In my judgment the fact that a practitioner has acted in a number of matters over a period of years, be they legally aided or not, and judges have criticised the way in which he has acted in those matters, is a relevant consideration in deciding whether or not the practitioner should be removed from the panel.
Of course procedural fairness may require that VLA give to the practitioner an opportunity to be heard on what was said by the judges and, if he is able, to demonstrate why the judge was wrong or why there were extenuating circumstances. And if the practitioner is able as a result of that process to demonstrate that the judicial observations were misplaced, or should not be given the weight which otherwise might appear appropriate, the VLA would be wrong to treat them otherwise. But as Ms Mortimer pointed out, that is what occurred in this case. The plaintiff was given every opportunity in the hearing before the independent reviewer to justify his position and he failed to do so. I refer in particular to the passages of the transcript of the hearing before the independent reviewer at pp.1800 to 1810.
It may be that if it were my task to decide whether the plaintiff should be removed from the panel, I would not place as much weight on these other matters as the independent reviewer appears to have done. Notwithstanding what was said in Davy-Chiesman v Davy-Chiesman[14], see also Algar v Gall, Stanfield & Tiley[15], but compare Harley v McDonald[16], I would be inclined to lay a greater part of the blame for what occurred on counsel than on the plaintiff. But even then I would still regard the matters as relevant considerations supporting to some extent the conclusion that the plaintiff’s name should be removed from the panel.
[14](1984) Fam 48.
[15](2000) QSC 085 at [37].
[16](2001) 2 WLR 1749 (PC) at [51] to [57]
Moreover, if I am correct in the view that the decision the subject of this application is a discretionary decision, it is relevant also to note that these other matters are factors as to the weight of which views may legitimately differ. Hence, even if I were to attribute no weight to them, it would not follow that the independent reviewer necessarily had erred in taking them into the account. On the assumption that I am correct that the decision was a discretionary decision, the question would not be whether my view on these other matters differs from that of the independent reviewer. The question would be whether it was open to the independent reviewer to take them into account. Clearly in my view it was.
The second complaint made about the independent reviewer’s decision was that, even if the plaintiff’s decision to withdrew was misguided, it ought to have been excused because it was taken in accordance with advice obtained by the plaintiff from a Mr Ward, who was a senior and respected practitioner in the criminal jurisdiction. I think that the point can be disposed of rapidly. So far as the evidence discloses, the conversation with Ward in which the advice was said to have been given did not occur until 29 August 1995, more than a month after withdrawal and after VLA had agreed to provide additional funding, and according to the note of conversation which was relied upon as evidence of its existence, the conversation was about whether the plaintiff should withdraw if Te were not prepared to accept the terms offered by VLA. On the evidence it is plain that at the time of the withdrawal Te was prepared to accept the terms offered by VLA. In the result, I do not accept, any more than the independent reviewer appears to have thought, that the plaintiff’s withdrawal was the result of advice given by Mr Ward that the plaintiff should withdraw.
The third complaint made about the independent reviewer’s decision was that it proceeded upon the premise that the plaintiff’s principal or real or dominant reason for withdrawing was to induce VLA to increase the professional fees which it had agreed to pay to the plaintiff and counsel. The error was said to reside or at least to appear in the passage of the independent reviewer’s decision which occurs at p. 33 in these terms:
“It is my opinion that Mr Kuek’s attitude to funding was improper. As Mr Saunders said, a solicitor cannot act conditionally (that is await a review of funding by VLA) before continuing to act. A solicitor either acts or he does not.
Much of Mr Kuek’s conduct during the wasted 33 days, both at court and in the course of his correspondence with VLA, can be seen in the light of his attempt to secure increased funding for himself and his counsel.”
I do not see any error in that passage. Mr Maxwell quite properly conceded that one of the reasons for the withdrawal was to obtain greater fees and even if Mr Maxwell had not made that concession it would be plain to me from the transcript of the exchanges between the plaintiff and Judge Kellam. In my view the passage which is attacked does not say anything different.
Mr Maxwell submitted nevertheless that error resided in the way that the independent reviewer could be seen to have regarded the claim for extra fees as in effect a venal grab for further money rather than as the reflection of a desire truly to provide Te with the services which the plaintiff believed were really needed.
For the reasons I have already expressed when dealing with the first complaint I do not accept that the demand for additional reading fees was wholly altruistic. I conclude that it was or was to some significant extent driven by self interest. I am not persuaded that the plaintiff believed that it was important to the defence of Te that the plaintiff as opposed to counsel read the transcript each night and I see no justification at all for using the threat and reality of withdrawal in order to obtain a better fee than had been agreed for the counsel retained.
Whether or not additional transcript and a better qualified interpreter were truly thought to be needed, and I think that remains problematic, I consider that the claim for additional fees was to some significant extent an attempt to obtain further money for what had been agreed to be done.
The final complaint made about the decision to remove the plaintiff’s name from the panel was that even if the independent reviewer were not wrong to decide to remove the plaintiff’s name from the panel, the reviewer had erred in imposing a period of removal as long as four years.
Mr Maxwell submitted that the period of removal of four years was clearly excessive when regard was had to the financial effects of the order on the plaintiff. He accepted, as was held by the independent reviewer, that there was no evidence of the financial effects but he contended that because the independent reviewer was, in effect, a forum constituted to afford merits review of the decision of VLA, it was incumbent upon VLA to put before the reviewer all relevant information in the possession of VLA bearing upon the financial effects of the decision on the plaintiff.
Mr Maxwell submitted further that it was self evident that VLA would have had records demonstrating the amounts paid to Mr Kuek for Legal Aid services and Mr Maxwell submitted that by parity of reasoning with the decision in Transport Accident Commission v Bausch[17] it should be accepted that because VLA had not put that information before the independent reviewer the reviewer’s decision had miscarried.
[17][1998] 4 VR 249, see especially pp. 259, 260 and 262.
The obligation found to exist in Bausch was expressly imposed upon the Transport Accident Commission by sub-s. 38(1) of the Transport Accident Act 1986. Nevertheless the observations of Tadgell JA at pp. 259 to 260 and at p. 262 suggest, even if they do not compel the view that where a statute provides for merits review of an administrative decision the primary‑decision maker is as a matter of principle obligated to assist the reviewer in reaching an informed decision.
For present purposes I am prepared to accept that the function of the independent reviewer is one of merits review in the sense in which Mr Maxwell employed that conception and that notwithstanding the absence from the Victorian Legal Aid Act of a provision akin to s. 36 of the Transport Accident Commission Act, VLA was as a matter of principle obligated to assist the independent reviewer to reach an informed decision, including by provision of relevant financial information in its possession.
But even allowing for all that, it does not seem to me that there is any basis or at least here sufficient basis to conclude that VLA withheld from the independent reviewer financial information about the plaintiff which may have changed the way in which the independent reviewer viewed the effects of the removal order on the plaintiff. Despite the asseverations in argument to the contrary, there is no evidence to suggest, and I cannot imagine why the plaintiff would not have been able to put before the independent reviewer far better evidence than could VLA as to the financial effects of the removal order on the plaintiff. In the absence of any evidence before me or before the independent reviewer as to why that was not done, I consider that I am entitled to infer that such information would not have assisted the plaintiff: See Commercial Union Assurance Co of Australia Ltd v Ferrcom[18]; R v GEC[19].
[18](1991) 22 NSWLR 389 at p. 418 per Handley JA.
[19](2002) 3 VR 334 at [41] and [42] per Vincent JA.
In the result I conclude there is no error shown in the weight which the independent reviewer gave to the financial effects of the removal on the plaintiff.
Mr Maxwell submitted that quite apart from the financial effects the period of removal was plainly excessive when compared to the period of three months which Warren J held to be appropriate in McGregor's case and the period of one year adjudged by Mandie J to be appropriate in Yianoulatos & Ors v Victoria Legal Aid & Anor[20]. Reference was also made to the period of removal of three years determined by the independent reviewer in Bourke v VLA which was in effect a case of dishonesty.
[20][1998] VSC 163 at [25].
Mr Maxwell also submitted that four years was in any event excessive when it is remembered that the purpose of a removal order is not to punish but to protect against the possibility of similar problems recurring. See and compare Clyne v New South Wales Bar Association[21]; New South Wales Bar Association v Evatt[22], Adamson v Queensland Law Society Incorporated[23]; Queensland Law Society Incorporated v Carberry[24].
[21](1960) 104 CLR 186 at pp. 201 and 202.
[22](1968) 117 CLR 177.
[23](1991) Qd R 498.
[24][2000] QSCA 450 at [38].
I agree that four years is a long period of removal and in many cases it could and should well be regarded as excessive. But in this case I do not think it is. To begin with, the seriousness of the walkout cannot be overstated. It constituted a grave breach of professional duty to Te and a grave breach of obligations owed by the plaintiff to VLA. It jeopardised Te's position and it severely compromised the efficient and expeditious conduct of the criminal process. When it is seen against the background of the way in which Te conducted the trial up to the time of walkout, even allowing for the fact that most of that might be laid at the feet of counsel, it is to be regarded at best as abject professional incompetence.
Secondly, so far from recognising that and doing all within his power to arrest any harm which was done, after the walkout and indeed until half way through the submissions made on his behalf in this Court the plaintiff has stoutly maintained that he was right and entitled to act in the way he did.
It is true that in the proceedings before the independent reviewer, submissions were made that it would be open and appropriate on one view of the facts for the independent reviewer to conclude that the walkout was a misguided but well-intentioned error of judgment and perhaps also that it was unlikely that it would be repeated. But there was no evidence to that effect and certainly no evidence from Mr Kuek then or now that he recognised the error of his ways and that it would be not likely to recur.
As far as appears to me, it was only because of Mr Maxwell's appearance on behalf of Mr Kuek before me that there was heard a true concession, even then necessarily qualified, that what had been done may be viewed as an error of judgment.
Thirdly, and because that is so, I do not have any confidence that the plaintiff has yet come to realise how seriously misconceived and harmful his conduct should be regarded as being. There was no evidence before the independent reviewer and there is no evidence before me that the plaintiff feels the slightest degree of remorse about what occurred or that he would not try something similar again whenever the moment took him.
That position is to be compared and contrasted with the factual situations presented to Warren J in McGregor's case and to Mandie J in Yianoulatos’ case where the affected practitioners had more or less immediately seen the errors of their ways and done all that they could to prevent the harm occurring again.
Fourthly, although the principal purpose of removal is to guard against repetition of conduct of the kind that has occurred, it is I conceive also to act as some sort of sign to others as to what is and is not acceptable and thus, when conduct is as serious as here occurred, the removal should be lengthy.
Finally, although this is not a case of dishonest conduct, as for example may occur where a practitioner charges for services not rendered or charges at an excessive rate (compare the decision of the Independent Reviewer, Mr Kiddle in Burke v VLA, 6 August 1998), it is in some respects just as serious if not more serious.
The conduct engaged in compromised fundamentally the provision of legal services to Te at a critical time in criminal proceedings, when it was the duty of the plaintiff to provide those services as best he could in accordance with the retainer he had accepted and the functions of VLA to provide services to those in need.
I allow for the fact that shortly after, if not immediately after the walkout, the plaintiff took action on behalf of Te in attempt or attempts to protect Te’s position. I allow for the fact that the plaintiff appears to have done so without reward in the first place and without any promise or real chance of reward. I accept the submissions made by Mr Maxwell, based upon those considerations, that there is much to be seen in the plaintiff which reflects the attitude of a properly motivated practitioner. I agree with the observations made by the independent reviewer in that connection.
But the fact that a practitioner may in some respects, indeed many respects, evidence highly desirable traits and a thorough commitment to the interests of the client cannot serve to overcome or to significantly reduce the significance of misconduct as grave as I judge that to be the withdrawal against the background of the prior actions in the proceeding. Especially do I think that to be so when even now, years after the event, when every opportunity has been afforded to the practitioner to demonstrate why it is that he has seen the error of his ways and that something similar is not likely to recur, the opportunity has not been availed of. Rather, the whole of the defence other than the alternative arguments to which I have referred, has been put on the basis that it was right and proper for the plaintiff to take the actions which he did in order to protect the interests of his client.
If it were my function to determine the period of removal, I tend to think that I would set something less than four years. But I do not think it would be a great number less than four years. In the event however, it is not my task to set the period but to decide whether the period which has been set is so excessive as to be beyond the range reasonably open to be set by the independent reviewer. For the reasons given I do not consider that it is. In the result, I am disposed to decline to set aside the decision to remove the plaintiff’s name and that of the firm from the panel.
Subject to the submissions of counsel, the orders which I would propose to make are that there be judgment for the defendant, that the plaintiff’s application to set aside the decision to remove the name of the plaintiff and that of his firm be dismissed and that the plaintiff pay the defendant's cost of the proceeding.
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