Legal Services Commissioner v PFM (No 2)
[2014] VSC 555
•30 OCTOBER 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 4214
| LEGAL SERVICES COMMISSIONER | Plaintiff |
| v | |
| PFM (A PSEUDONYM) | Defendant |
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 25 JULY, 22 AUGUST 2014 |
LISTED FURTHER DIRECTIONS HEARINGS: | 26 SEPTEMBER, 24 OCTOBER 2014 |
DATE OF JUDGMENT: | 30 OCTOBER 2014 |
CASE MAY BE CITED AS: | LEGAL SERVICES COMMISSIONER v PFM (No 2) |
MEDIUM NEUTRAL CITATION: | [2014] VSC 555 |
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PRACTICE AND PROCEDURE – practitioner removed from the roll of practitioners – application for suppression order – application for pseudonym order – mental illness – order made by VCAT preventing disciplinary action taken against defendant from being recorded in the register of disciplinary action for defined period – subsequent order protecting identity of defendant for defined period – Open Courts Act 2013 (Vic), ss 4, 10, 12(4), 13(1)(a) and (b), 17, 18(1)(c) – Legal Profession Act 2004 (Vic), ss 1.2.3(a), 4.4.25, 4.4.26, 4.4.27.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R Senathirajah | Solicitor to the Legal Services Commissioner |
| For the Defendant | Ms M F Fitzgerald with Ms M Tait | Emma Turnbull Lawyers |
HIS HONOUR:
A. Introduction
On 23 July 2014, I delivered a judgment (“the Previous Judgment”) which required the name of the defendant to be removed from the roll of practitioners kept by the court.[1] The Previous Judgment was published using a pseudonym “PFM” instead of the name of the defendant. This was done with the agreement of the parties and pursuant to an interlocutory order that had been previously made by the court.[2]
[1]Legal Services Commissioner v PFM (a pseudonym) [2014] VSC 341.
[2]See Previous Judgment, fn 2.
At the time of the hearing the subject of the Previous Judgment, on 21 July 2014, no notice had been given under the Open Courts Act 2013 (Vic) that there would be an application for a suppression order.[3] Accordingly, the court directed that the requisite notice be given and that any use of a pseudonym or other suppression order would be subject to further order of the court.
[3]See Open Courts Act 2013 (Vic), s 10.
Upon notice being duly given pursuant to the Open Courts Act, no news media organisation sought to be heard. Accordingly, the parties made submissions on 25 July 2014 and then filed written submissions in the following 14 days.
For the reasons that follow, an order will be made protecting the identity of PFM until 27 May 2016.
B. Background
For a complete understanding of the relevant history of this matter, reference should be made to the decision of the Victorian Civil and Administrative Tribunal (“VCAT”) delivered on 27 May 2013.[4] Suffice to say, PFM engaged in professional misconduct on a number of occasions over an extended period of time. As a result of such conduct, PFM pleaded guilty to 6 charges made against him by the plaintiff, the Legal Services Commissioner.[5] As a result, VCAT imposed the following sanctions:
(1)PFM was prevented from applying for a practising certificate for a period of 7 years from the date of the order, namely 27 May 2013.[6]
(2)If PFM was able to apply for a local practising certificate on or after 27 May 2020, he was required to provide, with his application to the Legal Services Board, a medical report from his then treating psychologist or psychiatrist, or, if he did not have a treating psychologist or psychiatrist, from a medico-legal psychologist or psychiatrist, advising on his mental health and his capacity to engage in legal practice.[7]
(3)Except with the approval of the Legal Services Board, PFM was prohibited from carrying out any of the functions of a “lay associate”, for a “legal practitioner”[8] or “law practice”, as those terms are defined in the Legal Profession Act 2004 (Vic) (“the Act”).[9]
[4][2013] VCAT 827 (Senior Member Smithers). A broad summary is also available in the Previous Judgment, [4]-[18].
[5]Previous Judgment, [19].
[6][2013] VCAT 827, [149].
[7]Order 3 and [150].
[8]The definition in the Act is “Australian legal practitioner”: s 1.2.3(a).
[9][2013] VCAT 827, order 4 and [152].
C. Mental illness of PFM
It is common ground that PFM suffers from severe depression. As a result of evidence given before VCAT and also before me, it is plain that PFM is suffering from mental illness and that he is likely to continue to suffer from it for the foreseeable future.
As noted in the Previous Judgment,[10] the uncontroverted evidence before the court is that any publication of the name of PFM in relation to this proceeding, or the VCAT proceeding or the removal of his name from the roll of practitioners could have severe consequences for his mental health. Consistent with this position, at the conclusion of the hearing before VCAT, the orders made included the following:
[10]At [25].
6Until 27 May 2016, under s.4.4.31 of the Legal Profession Act 2004, the disciplinary action taken against the respondent:
(a)is not to be recorded in the Register as defined by s.4.4.25 of the Act; and
(b)may not be publicised by the [Legal Services Board] except in the manner described in order 5.[11]
7Both parties have liberty to apply in relation to … any extension of the time in orders 5 and 6 beyond 27 May 2016, or generally, in relation to the publication of information relating to this decision.
[11]Order 5 of the VCAT orders established a regime for the defendant’s pseudonym and other terms used to maintain PFM’s confidentiality until 27 May 2016.
D. A preliminary matter
On 25 July 2014, the parties sought further time to prepare submissions on the issue of protecting the identity of PFM. Submissions were duly filed and the matter was listed for further hearing.
At the commencement of the further hearing on 22 August 2014, I indicated to the parties that, having read the written submissions, I was inclined to make an order to protect the identity of PFM until 27 May 2016, but I was concerned as to whether or not the identity of PFM would remain confidential in any event. I said that, in my view, a relevant consideration for the court in determining whether to make an order was whether the name of PFM would become public because of processes required under the Act. In particular, concern was expressed as to whether the court had the power to make an order that the disciplinary action taken against PFM not be recorded in the Register.[12] It was noted that express power was given to VCAT to make such an order, but there was no equivalent provision giving such power to the court.
[12]The Register is defined in s 4.4.25 of the Act. Amongst other things, the Register must include the full name of a person against whom disciplinary action is taken: s 4.4.26. Further, the Register must be made available for public inspection: s 4.4.27.
After some discussion, by consent, the court adjourned the hearing on 22 August 2014 so that an application could be made at VCAT, pursuant to s 4.4.30 of the Act, for an order that the disciplinary action taken against PFM in VCAT and in this court would not be recorded on the Register. The proceeding was adjourned to 26 September 2014 for directions, and further to 24 October 2014, to allow that application to be made to VCAT.
On 21 October 2014, the court was informed that VCAT had made an order by consent on 15 October 2014, in the following terms:
(1)Until 27 May 2016, under section 4.4.30 of the Legal Profession Act 2004 (“the Act”), the disciplinary action taken against PFM in the Tribunal (J 126/2011) and in the Supreme Court of Victoria (S CI 2013 4214) is not to be recorded in the Register as defined by s 4.4.25 of the Act.
(2)Both parties have liberty to apply in relation to any extension of time in order 1 beyond 27 May 2016.
(3) No order as to costs.
Accordingly, it is now unlikely that, if the court were to make an order protecting the identity of PFM, the name of PFM would become public.
E. The Decision
The Open Courts Act is plain in its terms. It requires the court to encroach upon the principle of open justice to the minimum extent necessary if an order is warranted, amongst other things, to protect the safety of a person.[13] I am satisfied that if publication is made presently, PFM’s personal safety is at risk.
[13]Open Courts Act 2013 (Vic), ss 4, 12(4), 13(1)(a) and (b), and 18(1)(c).
PFM seeks an order preventing disclosure of his name for a period of 10 years. There is simply no proper basis upon which an order could be made for such a period of time. The evidence given by his treating psychologist suggested PFM would be mentally ill for the foreseeable future. Although he expected that PFM would remain unwell, he could not say whether he would remain unwell for 2, 3, 4 or 5 years.
The minimum period specified in this evidence is broadly consistent with the orders previously made by VCAT concerning maintaining the confidentiality of PFM’s name. In those circumstances, the extension will be until 27 May 2016 and not any further. Of course, PFM will have liberty to apply before 27 May 2016 to seek to extend that period if his state of health warrants such an application.
Save for the duration of the order, the parties were in agreement as to the appropriateness of an order being made. Although the consent of the parties is a relevant matter, it is ultimately a question for the court to determine whether an order should be made. Be that as it may, I agree with the position adopted by the parties to protect the safety of PFM and an order will be made accordingly.
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