Legal Services Board v Forster

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMON LAW DIVISION

No. 6947 of 2009

LEGAL SERVICES BOARD	Plaintiff
(ABN 82 518 945 610)
v
DAVID FORSTER	Defendant

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	9-13 November 2009
DATE OF RULING:	17 November 2009
CASE MAY BE CITED AS:	Legal Services Board v Forster
MEDIUM NEUTRAL CITATION:	[2009] VSC 645

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STATUTORY INTERPRETATION – “officer of the Court” – not restricted to officers ‘within the court structure’ – includes persons admitted to the legal profession – Legal Profession Act 2004 (Vic) ss 5.5.1(4)(a), 2.3.9.

PRACTICE AND PROCEDURE – closure of court except to specified persons and categories of person – open court principle.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr K P Hanscombe SC with	Corrs Chambers Westgarth
Mr S R Senathirajah
For the Defendant	Mr J K Arthur	Hollows Lawyers
HER HONOUR:

On 9 November 2009, prior to the commencement of the hearing of the application to appoint a receiver to the defendant’s legal practice and upon an application by the defendant, I made an order under s 5.5.1(4) of the Legal Profession Act 2004 (Vic) ordering from the precincts of the Court any person who is not: -
(a)        an officer of the Court;
(b)        a party or any of the persons associated with the party referred to in s 5.1.1(4)(b);
(c)         a principal of the law practice; or
(d)        a person who is about to or who is in the course of giving evidence.
On 12 November 2009, on the fourth day of the hearing of the application, two persons entered the courtroom and sat down in the public area, apparently for the purposes of listening to the receivership application. I was informed by counsel for the defendant that the persons in question were well known to the defendant as they were legal practitioners employed by the Australian Government Solicitor and had been involved in conducting the Melbourne Voyager litigation on behalf of the Commonwealth.
I was informed that the defendant had a very strained relationship with the persons in question because of issues which arose in the Melbourne Voyager litigation and that he was ‘embarrassed’ by their presence in the courtroom. Counsel for the defendant asked that I direct them to leave the Court in compliance with the order that I had made under s 5.5.1(4) of the Legal Profession Act.
When I enquired of the persons concerned whether they were admitted to the legal profession under the Legal Profession Act, each of them replied that he or she was.
Pursuant to s 2.3.9 of the Legal Profession Act, a person admitted to the legal profession under that Act becomes an officer of the Supreme Court of Victoria. Section 5.5.1(4)(a) exempts from the order to leave the precincts of the Court, “an officer of the Court”.
Counsel for the defendant submitted that “an officer of the Court” for the purposes of s 5.5.1(4)(a) of the Legal Profession Act does not include persons who are officers of the Court merely because they have been admitted to the legal profession under the Legal Profession Act. He submitted that “an officer of the Court” in s 5.5.1(4)(a) refers to persons who work at or for the Court and whose presence in the courtroom is necessary for the conduct of the proceeding, such as judges’ associates, tipstaves and court reporters.
The defendant initially made two submissions in support of this construction.
First, the words in s 5.5.1(4)(a) and s 2.3.9 are different. The former refers to officers of “the Court” whereas the latter refers to officers of “the Supreme Court of Victoria”. An officer of the Supreme Court of Victoria is not to be taken to be “an officer of the Court” for the purposes of s 5.5.1(4)(a) of the Legal Profession Act.
Secondly, it is necessary to give legislation a purposive construction. The purpose of s 5.5.1(4) is to enable receivership applications to be heard in the absence of persons who are not directly involved in the proceeding. Accordingly, s 5.5.1(4)(a) must refer to persons who are directly involved in the receivership application. A construction which permitted any member of the legal profession to remain in court would defeat the purpose of s 5.5.1(4).
The defendant generally submitted that receivership applications are delicate matters that involve minute examination of solicitors’ files and accounts, and almost always necessarily involve disclosure of confidential information held by the solicitor about his or her clients. In this case, information on the files of the law practice may refer to the psychological condition of clients and other private medical matters. Some of the clients may have further claims against the Commonwealth arising from exposure to asbestos. There are also potential issues of client legal privilege.
The defendant further submitted that confidential information relating to the solicitor’s business – his office systems, his income, the size of his practice, the identity of his staff – may come to light.
The defendant submitted that as a result, receivership applications under the Legal Profession Act are a special jurisdiction, and that is why s 5.5.1(4) provides for the proceeding to be heard in camera. He emphasised that it would defeat the purpose of s 5.5.1(4) if anyone who was admitted to the legal profession were able to remain in court during the hearing of a receivership application, as this would comprise a large body of people.
I observe that the protection of confidential and/or privileged information was not the reason given to me by the defendant when he sought the order under s 5.5.1(4) in the first place. The reason given was to protect the reputation of the practitioner and the law practice in the context of particularly acrimonious relationships between the defendant and other members of the legal profession, including former staff members.
So far as I am aware, nothing in s 5.5.1 affects the operation of the law of privilege. Documents that are privileged retain their privilege in this court in a receivership application. Moreover, under s 5.2.1, the circumstances warranting external intervention are principally concerned with the law practice’s dealings with trust money and trust property, rather than with the management of client files generally. The matters in issue before the Court in a receivership application are most likely to involve an analysis of trust account records and, as in this case, office account ledgers. There is limited scope for sensitive client information to be disclosed.
Nonetheless, I accept that one of the purposes of s 5.5.1(4) is to provide a measure of protection to sensitive client information held by the law practice. Section 5.5.1(4) should, so far as possible, be construed consistently with such a purpose.
In written submissions that were subsequently filed, the defendant made the following further submissions.
First, if the expression “officer of the Court” in s 5.5.1(a) encompasses a solicitor, a liquidator, a provisional liquidator and a court-appointed receiver, then –
(i) para 5.5.1(4)(c) is otiose, as it refers to the “principal of the law practice concerned”; and

(ii) likewise, the words “a legal representative of a party” in para
5.5.1(4)(b) are unnecessary.

Secondly, the use of the phrase “officer of the Court” in the Supreme Court Act 1986 (Vic) and Supreme Court (General Civil Procedure) Rules 2005 (Vic), and in other legislation, shows that the meaning of the phrase may vary depending on the context in which it appears. In particular, it may be limited to persons who are officers of the Court ‘within the court structure’. Depending on the context in which the expression is used, it may refer generally to persons who have been admitted to practice under the Legal Profession Act or it may apply to a more limited class of persons who are “officers of the Court” in the sense that they belong within the court structure.
The defendant found support for a narrow construction of the expression “officer of the Court” in the decision of Santow J in Wentworth v Wentworth.[1] There, his Honour was concerned with the position of a taxing officer in the Supreme Court of NSW when an application was made by a party for the taxing officer to pay her costs. In this context, his Honour said:
While a taxing officer is not a judicial officer, clearly enough his or her functions are conferred on that officer as an officer of the court. This is not in the sense that a solicitor or barrister is an officer of the court but as someone who is part of its structure.[2]
[1] (1999) 46 NSWLR 300.
[2] Ibid 316.
Santow J was not concerned with whether a taxing officer was an officer of the court – rather, he had to decide whether the taxing officer enjoyed derivative immunity. Nonetheless, the distinction that his Honour drew between officers of the court that are part of the ‘structure’ of the court, and those that are barristers and solicitors, is potentially a useful one for the issue that the Court has been asked to determine. However, it is not a widely recognised distinction. Following Justice Santow’s decision, the relevant NSW provision was amended to make clear that an officer of the court in that context did not include a solicitor, a barrister or liquidator.
The expression “officer of the Court” is also used in headings in the Supreme Court Act and the Supreme Court (General Civil Procedure) Rules for provisions or rules concerning officers of the court who are ‘within the structure’ of the Court, to use the words of Santow J:

• Part 7 concerns “Associate Judges and Officers of the Court”. It provides for the appointment and describes the functions of Masters, executive officers and prothonotaries (along with their deputies), bailiffs and assistant bailiffs, Registrars and sheriffs. In this context, the words “Officers of the Court” in the heading to Part 7 refer to the narrow group of court officers with which the relevant provisions are concerned, who do form part of what could be described as the ‘structure’ of the Court;
• Section 25 provides for the making of rules for the practice and procedure of the Court and for the powers, authorities, duties and functions of officers of the Court.
• Rule 63.06 requires “officers of the Court” to assist one another in the taxation of bills referred to one or another of them. Again, the heading to Rule 63.06 apparently refers to a narrow group of officers of the Court who are empowered to conduct taxations and who are part of the ‘structure’ of the Court.

My attention was also drawn to provisions within the County Court Act 1958 (Vic) and County Court Civil Procedure Rules 2008 (Vic) in which the expression “officer of the court” is used, apparently in the narrow sense of persons within the ‘structure’ of the County Court.
I was also referred to the heading to s 112 of the Conveyancers Act 2006 (Vic), which is very similar to s 5.5.1(4). The heading refers to proceedings being “closed”. That provision also exempts “an officer of the Court”. I do not think this greatly assists the defendant, because the heading begs the question “closed to whom?”. In order to answer this question, it would be necessary to embark on the same process of construing the words “an officer of the Court” as I am engaged in now. Likewise, the references in the Supreme Court Act, the County Court Act and the relevant rules are of limited assistance.
Insofar as the Supreme Court Act assists in understanding the meaning of s 5.5.1(4)(a), the definition of “court official” in s 3 of the Supreme Court Act does not support the construction advanced by the defendant. First, it expressly provides that for the purposes of the definition of “court official”, an officer of the Court is not to include a person who is an officer of the Court only because he or she is an Australian lawyer. It recognises that an Australian lawyer is “an officer of the Court”, being the Supreme Court of Victoria. Moreover, the definition of “court official” is not consistent with the defendant’s submission that “an officer of the Court” in s 5.5.1(4)(a) refers to judges’ associates and tipstaves. Judges’ associates and tipstaves are court officials, but they are brought within that definition not because they are officers of the Court, but because they are persons employed in the offices of the Court or persons employed in the chambers of a judge or associate judge.
The position is a little more complicated for court reporters. It is my understanding that court reporters are now independent contractors and that they are no longer employed in the offices of the Court. Section 134 of the Evidence Act 1958 (Vic) provides that a person recording evidence shall be “an officer of any court in or for which he or she is required to record the evidence …” and that he or she is under the direction of the court with regard to the performance of his or her duty of recording or transcribing evidence. The form of words “an officer of any court in or for which he or she is required to record the evidence” suggests that a court reporter is an officer of ‘a’ court for limited purposes only.
Although there is force in the defendant’s submission that the references to legal practitioners in ss 5.5.1(4)(b) and (c) would not be necessary if “officer of the Court” included all persons admitted to the legal profession under the Legal Profession Act, meaning must also be given to the words “an officer of the Court” in s 5.5.1(4)(a). Those words must apply to somebody. In my view, those words do not refer to court officials such as judges’ associates and tipstaves, for they are not officers of the Court at common law or under the Supreme Court Act.
The words “an officer of the Court” should not be taken to refer exclusively to court reporters. If, consistently with the defendant’s construction of s 5.5.1(4)(a) as applicable only to persons directly involved in the receivership application before the Court, court reporters were the only remaining class of persons that could be officers of the Court for the purposes of s 5.5.1(4)(a), then the legislature would simply have referred to court reporters, rather than to officers of the Court more generally.
Contrary to the submissions of the defendant, the reference to “an officer of the Court” in s 5.5.1(4)(a), viewed in the context of ss 5.5.1(4)(b) and (c), evinces an intention by the legislature that certain persons who are not directly involved in the receivership application be allowed to remain in Court.
The reasons for this are not clear. No assistance is to be gained from extrinsic materials. However, it may be that the legislature was of the view that members of the legal profession ought to be able to be present in court during a receivership application involving a law practice, because they have a strong interest in the regulation of the profession and the administration of the Legal Practice Act.
The difference between the words in s 2.3.9 and those in s 5.5.1(4)(a) is not material. Section 2.3.9 provides that a person admitted to the legal profession under the Legal Profession Act is an officer of the Supreme Court of Victoria. Although persons admitted to the legal profession are referred to as “legal practitioners” throughout the Legal Profession Act and not as “officers of the Court”, s 2.3.9 makes plain that they are to be included in the class of persons who are officers of the Supreme Court. Section 5.5.1 is concerned with proceedings in the Supreme Court for the appointment of receivers to a law practices. In that context, an “officer of the Court” should be taken to refer to an officer of the Supreme Court of Victoria.
The construction of s 5.5.1(4)(a) is subject to the following important principle. The courts must administer justice in public, unless by doing so the parties would reasonably be deterred from seeking justice which it is the primary function of the courts to administer. A statutory provision which affects the ‘open court’ principle should be construed, where constructional choices are open, so as to minimise its impact upon the principle and to maximise the power of the court to implement the statutory command narrowly.[3] The defendant’s construction of s 5.5.1(4) has a more significant impact on the principle of open justice than a construction which includes in the meaning of “an officer of the Court” in s 5.5.1(4)(a) persons who have been admitted to practice under the Legal Profession Act.
[3] K Generation v Liquor Licensing Commission (2009) 237 CLR 501, 520-1.
It is true that allowing members of the legal profession to remain in court during the hearing of the application to appoint a receiver to the law practice may reduce the effectiveness of an order made under s 5.5.1(4), especially if confidential information relating to clients of the law practice is likely to be revealed in the testimony of a witness.
However, an interpretation of s 5.5.1(4)(a) which allows persons who are admitted to the legal profession to remain in court generally preserves the utility of an order under s 5.5.1(4). Members of the public, who are potential clients of the law practice, are excluded. So too is the press. This provides a significant measure of protection to the reputation of the practitioner and the law practice, as well as to confidential or sensitive information that may be disclosed in the course of the hearing of the application.
As officers of the Supreme Court, members of the legal profession have special duties to the Court that prevent them from engaging in conduct that would undermine the administration of justice by the Court. The Court is entitled to assume that members of the legal profession who are present in court for the hearing of a receivership application will behave consistently with their status as officers of the Court and show respect for the Court and the parties. In the absence of evidence to the contrary, the Court may assume that they will treat responsibly information to which they become privy and that they will not misuse that information to harm the reputation of the practitioner or the law practice, or any client of the law practice. Accordingly, I do not think that to construe s 5.5.1(4)(a) to include persons admitted to practice under the Legal Profession Act would defeat the purpose of s 5.5.1(4)(a).
The best reason for favouring a construction of s 5.5.1(4)(a) that includes members of the legal profession is that that is how the words will be most readily understood by members of the profession. Members of the profession are often reminded that they are officers of the Court. Their understanding of their special duties depends on it. A barrister or solicitor reading a notice on the door of the courtroom in the form of s 5.5.1(4)(a) would most likely form the view that he or she was permitted to enter. Breach of an order of this kind is a serious matter – it could amount to a contempt of court. It is unlikely that the legislature intended the persons to whom the order may be directed to carry out the research and engage in the detailed reasoning that counsel for the defendant has done in order to reach the conclusion that s 5.1.1(4) excludes persons admitted to legal practice from the expression ”an officer of the Court”.
As I have concluded that a person admitted to the legal profession under the Legal Profession Act is “an officer of the Court” for the purposes of s 5.5.1(4)(a), I will not direct the persons who attended court, who are officers of the Supreme Court of Victoria, to leave the precincts of the Court.
It would be open to me under s 18 of the Supreme Court Act, or pursuant to the inherent powers of the Court, to exclude particular individuals from the Court if I were satisfied that their presence in the courtroom during the hearing of the application interfered with or was likely to interfere with the administration of justice. However, any application to have persons excluded on this basis would need to be supported by real evidence of likely prejudice to the administration of justice if the persons in question were allowed to remain in the courtroom.

[2009] VSC 645

17 November 2009