McDonald v Legal Services Commissioner
[2014] VSC 34
•14 February 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 06182
| ALAN JAMES MCDONALD | Plaintiff |
| v | |
| MICHAEL MCGARVIE - LEGAL SERVICES COMMISSIONER | Defendant |
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JUDGE: | Derham AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2014 | |
DATE OF JUDGMENT: | 14 February 2014 | |
CASE MAY BE CITED AS: | McDonald v Legal Services Commissioner | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 34 | |
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ADMINISTRATIVE LAW — Victorian Civil and Administrative Tribunal — Leave sought to appeal VCAT decision — Finding of unsatisfactory professional conduct under the Legal Profession Act 2004 — Whether question of law — Three proposed grounds — Leave granted on one ground only — No real or significant argument on a question of law on two other grounds — Victorian Civil and Administrative Tribunal Act 1998 s 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr JWK Burnside QC and Ms G Jardine | McDonald Murholme |
| For the Defendant | Mr TJ Scotter | Legal Services Commissioner |
HIS HONOUR:
Introduction
By originating motion filed on 27 November 2013 the appellant applies for leave to appeal the orders of a senior member of the Victorian Civil and Administrative Tribunal (VCAT). The ‘order’ (or more aptly, finding) with which the application is concerned is that the proposed appellant, Mr McDonald, was found guilty of two charges of unsatisfactory professional conduct under the Legal Profession Act 2004 (Act). This finding was pronounced on 18 November 2013.[1]
[1]In VCAT matter No. J50/2013.
If leave to appeal is granted, Mr McDonald seeks orders that the ‘judgment’ of the senior member be set aside and that the respondent pay the appellant’s costs. The application is made under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).
The orders made by the Senior Member on 18 November 2013 included that the matter is to be listed for further directions on the question of the sanctions which should be imposed as a result of the decision. I was informed by Counsel for the Legal Services Commissioner (Commissioner), Mr TJ Scotter, that the Commissioner had agreed to await the outcome of the application for leave, and if leave is granted, the outcome of the appeal, before proceeding to any sanctions hearing. The Commissioner thus had no objection to this application proceeding notwithstanding that no sanction had been considered or ordered. There was thus no submission that the application now made fragmented the proceedings below.
Background[2]
[2]This background material is extracted from the Reasons given by the Senior Member for his finding: see [2013] VCAT 1943.
The appellant, Mr McDonald, is the only principal of a small firm in the city. In August 2011 he was acting as solicitor for an employee who had been made redundant. Lander + Rogers, solicitors, acted for the employer. A Mr David Catanese was the solicitor at Lander + Rogers who had the carriage of that matter. In the course of correspondence with Lander + Rogers, Mr McDonald sent a letter dated 30 August 2011 accusing Mr Catanese of being “fundamentally dishonest” and “telling lies”. When asked to withdraw these statements he refused. In a further letter dated 2 September 2011 Mr McDonald stated, “I stand rigidly behind all statements that I actually made about Mr Catanese”. He said he would repeat them and went on to say that Mr Catanese had engaged in “deliberate and calculated” dishonesty.
The accusations made by Mr McDonald against Mr Catanese arose out of a telephone conversation between the two held on 24 August 2011.
Mr Catanese lodged a complaint with the Commissioner. Upon enquiry by the Commissioner, Mr McDonald responded by repeating his statements that Mr Catanese had been dishonest. After much correspondence, on 15 March 2013 the Commissioner commenced proceedings in VCAT by bringing two charges of unsatisfactory professional conduct against Mr McDonald, one in relation to each of his two letters.
The charges are as follows:
Charge 1
Unsatisfactory professional conduct within the meaning of s.4.4.4(a) of the Act, in that by sending the 30 August letter, you contravened Rule 21 of the Professional Conduct and Practice Rules 2005 by failing to take all reasonable care to maintain the integrity and reputation of the legal profession by failing to ensure that his [sic] communications with other practitioners were courteous and/or by avoiding offensive or provocative language or conduct.
Charge 2
Unsatisfactory professional conduct within the meaning of s.4.4.4(a) of the Act, in that by sending the 2 September letter, you contravened Rule 21 of the Professional Conduct and Practice Rules 2005 by failing to take all reasonable care to maintain the integrity and reputation of the legal profession by failing to ensure that his [sic] communications with other practitioners were courteous and/or by avoiding offensive or provocative language or conduct.
Section 4.4.2 of the Legal Profession Act 2004 provides that for the purposes of the Act—
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Section 4.4.4(a) of the Act has the effect that conduct constituting a contravention of the rules is capable of constituting unsatisfactory professional conduct or professional misconduct.
Rule 21 of the Professional Conduct and Practice Rules 2005 (Rules) states:
A practitioner, in all the practitioner’s dealings with other practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner’s communications are courteous and that the practitioner avoids offensive or provocative language or conduct.
There is no dispute that the two letters the subject of the charges were sent. The contest was whether the content of the two letters constituted unsatisfactory professional conduct having regard to the surrounding circumstances.
The Senior Member, in extensive written reasons given at the time he made his finding on 18 November 2013, concluded that Rule 21 was breached and for that purpose he analysed the circumstances surrounding the impugned conduct. He noted that while Mr McDonald personally had a firm belief in his version of what was said in the telephone conversation, it is necessary to enquire what constitutes a response which complies with Rule 21 (and what response does not) in all the circumstances. The circumstances were as follows, in summary:
(a) On Friday 19 August 2011, Mr McDonald sent a letter of demand to the employer offering to accept the amount of $25,000.00 as a bona fide redundancy payment, in addition to payments already made. This letter put a range of factual and legal matters on behalf of the former employee to support the contention that he was entitled to additional redundancy or other payments. It was expressed to be a Calderbank offer open for acceptance until 5.00 pm on 23 August 2011
(b) On Wednesday 24 August 2011, Mr Daniel Proietto and Mr Catanese of Lander + Rogers responded on behalf of the employer. This letter stated that the employee had been paid all entitlements owing to him and went into some detail. The letter concluded: Based on the matters discussed above, any proceedings commenced by your client against MSL in respect of the termination of his employment would be premature, without any prospects of success and, potentially, vexatious. This letter may be produced on any future question of costs;
(c) On the same day, 24 August 2011, there was a telephone conservation between Mr McDonald and Mr Catanese. The two had never spoken before. Mr Catanese had attached his contemporaneous file note of this conversation to his witness statement. In his evidence, he said he started writing it during the telephone conversation, and completed it after, in accordance with his usual practice. Mr Catanese’s version of the conversation was that Mr McDonald had commenced by saying that he was calling to confirm obligations under the Civil Procedure Act 2010, or words to that effect. He had said to Mr McDonald that he had not put a genuine position on behalf of his client; there was no particularisation of $25,000.00 damages sought. Mr Catanese said that he told Mr McDonald he was not saying there was nothing to discuss, and later that he stressed he was not saying there was no potential for resolution;
(d) Mr McDonald’s version of the conversation was reflected in his letter of 24 August 2011 to Lander and Rogers which stated, relevantly: It was the purpose of Mr McDonald’s telephone call today to see whether or not there was any scope for negotiation of a settlement in accordance with the Civil Procedure Act 2010. Mr Catanese confirmed that there was no scope for discussion nor any proposal for a settlement;
(e) Lander + Rogers replied by letter dated Thursday 25 August 2011 stating, relevantly: In the telephone conversation, Mr Catanese stated, and reiterated, that we do not consider that there is no potential to resolve this matter prior to the commencement of proceedings. Thus by this date it was clear that there was a disagreement as to what had been said in the course of the telephone conversation;
(f) On Friday 26 August 2011, there was a telephone conversation during which Mr Catanese’s partner, a Mr Proietto, discussed the matter (the redundancy matter in which Mr McDonald acted) and the conversation between Mr McDonald and Mr Catanese held on 24 August;
(g) On Monday 29 August 2011, Lander + Rogers made an offer to settle the claim which Mr McDonald considered derisory;
(h) On Tuesday 30 August 2011, Mr McDonald rejected the offer as not being genuine and wrote the letter which is the subject of Charge 1. The letter included the following:
It is unpleasant to describe Mr Catanese as fundamentally dishonest, and it is a slur on Mr Catanese’s career as a lawyer that he starts off at any early stage of his career telling lies. It is fundamental to the smooth operation of the legal system that people act with integrity and honesty and Mr Catanese should be counselled to do this.
(i) In response to that letter Mr McDonald received a letter from Lander + Rogers the same day demanding that he withdraw his statement about Mr Catanese. This was followed up on Friday 2 September 2011 by a further letter and a telephone call from the more senior partner at Lander + Rogers, Mr Humphrey‑Smith. The letter attached a draft complaint from Mr Catanese to the Commissioner. It stated that Mr Catanese intended to file the complaint if Lander + Rogers did not receive correspondence from Mr McDonald unconditionally withdrawing his letter of 30 August 2011.
(j) On that day, 2 September 2011, Mr McDonald wrote the letter the subject of Charge 2, which included the following;
I stand rigidly by all the statements that I actually made about Mr Catanese. I have not bothered to read the document entitled Draft Complaint or any of the attachments which I presume is a lot of self-serving nonsense following your unsuccessful and misguided attempt to extricate Mr Catanese from the problem he had created for himself. I welcome any independent inquiry into this matter and will not be bullied or blackmailed by you or anyone else and that has been my position throughout my career.
Indeed I will repeat the statement that Mr Catanese was dishonest. The dishonesty was deliberate and calculated [and the letter went on to give some particulars][3].
(k) On Monday 5 September 2011, Lander + Rogers sent a letter signed by Mr Derek Humphrey-Smith to the Commissioner enclosing Mr Catanese’s complaint about the conduct of Mr McDonald.
[3]See Reasons [2013] VCAT 1943 at [23].
The complaint was investigated and after some correspondence and consideration, on 15 March 2013 the Commissioner applied under s 4.4.13(2) and (3) of the Act for orders under Division 4 of Part 4.4 That application proceeded on the footing that there was a dispute about what was said in the telephone conversation of 24 August 2011.
At the outset there was a difference between the parties as to whether the Tribunal needed to determine whose version of what was said in the telephone conversation was correct. The Commissioner’s position was that it was not necessary to determine whose version was correct and that even accepting Mr McDonald’s version, Rule 21 was breached. Mr McDonald, on the other hand, contended that he was justified in sending the letters because Mr Catanese was telling lies, that is, he had a reasonable basis for the allegations in the letters. The Senior Member noted that Mr McDonald did not accept the factual basis on which the Commissioner brought the two charges and that this was apparent from the correspondence and witness statements, and the way in which Mr McDonald conducted the hearing.[4] He therefore considered whose version of the conversation was correct.
[4]Reasons [2013]VCAT 1943 at [29].
The Senior Member considered the evidence and submissions of the parties and concluded that:[5]
Weighing up the evidence however, I find it cannot be concluded with sufficient confidence (on the applicable Briginshaw standard) what precisely was said in the telephone conversation. Certainly, I cannot conclude that Mr Catanese was lying. Indeed the relevant factors lean more in favour of Mr Catanese’s version. With some hesitation, I conclude that I cannot be sufficiently satisfied that Mr Catanese’s version is the correct one.
In the course of a conversation where the two opposing solicitors were having their first discussion about a new claim, where they had never spoken to each other before, and each was focussing on their own clients’ position, it is quite conceivable that they could take different meanings out of the conversation. There is not necessarily a big difference between words which might convey, on the one hand, ‘no offers will be made’, and, on the other, ‘without proper particulars, no offers will be made’.
[5]Reasons [2013]VCAT 1943 at [46]-[47].
The Senior Member then went on to consider whether, notwithstanding that finding, Rule 21 was nevertheless breached. The reasoning of the Senior Member was along the following lines:
(a) It must have been apparent to Mr McDonald when he received Lander + Rogers’ letter of 25 August 2011 that no purpose would be served by continuing to make allegations that Mr Catanese was lying in the circumstance that it was said by Lander + Rogers that there was a disagreement as to what had been said;
(b) It must have occurred to Mr McDonald as a result of the telephone conversation the next day with Mr Proietto, that it was possible to seek to negotiate with Lander + Rogers on behalf of its client to resolve the redundancy dispute. No interest of his client would be served by continuing to argue about whether or not Mr McDonald had been lied to;
(c) Mr McDonald should have considered the possibility that he was mistaken in his belief that Mr Catanese had lied. He should have considered the possibility that there was a misunderstanding or that he had misinterpreted what Mr Catanese had said (he did not take notes of the words spoken but notes were taken by or on behalf of Mr Catanese);
(d) Mr McDonald’s case was that the overall effect of all the communications he had received from Lander + Rogers up to 30 August 2011 constituted a serious threat to his practice and reputation such that he was justified in making the assertions he did in his letter that day; and
(e) in the view of the Senior Member, even accepting that Mr McDonald had an earnest belief in his own version of the phone conversation, his reaction was so extravagant as to breach Rule 21.
In the course of submissions, Mr McDonald relied on the decision of the Supreme Court of the Australian Capital Territory in Lander v Council of the Law Society of the Australian Capital Territory (Lander).[6] The decision in that case is critical to Mr McDonald’s application for leave and I will deal with it in that context. It is sufficient to say here that Mr McDonald argued that his letters to Lander + Rogers were all ‘soundly based’, in accordance with the decision in Lander. The Senior Member distinguished it, saying:[7]
The present circumstances are different to those in the case of Lander, relied upon by Mr McDonald. Here, no apparent interest of Mr McDonald’s client was being served by the making of the assertions about Mr Catanese. These were letters to another practitioner relating to that practitioner’s conduct, not the client’s. This distinction was recognised by the Court in Lander.[8]
[6][2009] ACTSC 117.
[7]Reasons [2013]VCAT 1943 at [70].
[8][2009] ACTSC 117 at [46] – [47].
He therefore concluded that;
It is not sufficient in this case for Mr McDonald to say that his assertions are to be regarded as ‘soundly based’ because they were not proved to be wrong. Here, they were inherently incapable of conclusive proof ─ it was his word against Mr Catanese’s. To persist with such allegations in the circumstances of this case ─ where the question was whether Mr Catanese had lied to him in a telephone conversation, where the outcome of the alleged lie would have no bearing on the matter between their respective clients ─ was provocative, because nothing could come of this except trouble. And it was offensive, because of the seriousness of the allegation that the solicitor was ‘fundamentally dishonest’. Then, four days later, even after he had time to reflect, Mr McDonald repeated his provocative and offensive assertions, and broadened them. This conduct has the potential to undermine the integrity and reputation of the profession. It undermines co-operation between practitioners which is important to promote the efficient operation of the justice system, and the conduct of legal business.
There was, as might be expected, a great deal more to the analysis undertaken, and more facts surrounding the events the subject of the charges which filled out the context. But that is sufficient background for the purposes of the consideration of this application.
Grounds of appeal
In his draft notice of appeal, Mr McDonald advances the following grounds:
(a)the Tribunal applied the wrong test. The test the Tribunal applied was whether the assertions contained in two letters written by the appellant were capable of being proved and, if they were inherently incapable of being proved, then to persist with the allegations was provocative and offensive [reasons paragraph 71]. The correct test in the circumstances was whether the accusations and criticisms the appellant made in the two letters were false or without foundation, to the appellant’s knowledge. If that were to be made out, then the finding of unsatisfactory professional conduct should be upheld; Lander v Law Society of ACT;[9]
(b)the Tribunal made a finding that the allegations against the practitioner which were contained in the appellant’s two letters, subject to the professional misconduct charges, were written by the appellant in anger [reasons at paragraph 59] when –
(i)that finding was irrelevant unless it was part of the finding that the appellant did not reasonably believe the relevant statements in his letters; and
(ii)there was no evidence before the Tribunal to support that finding.
(c)the Tribunal failed to afford natural justice in that the appellant was not allowed to put relevant questions in his cross-examination of the respondent’s witnesses.
[9](2009) ACTSE 117 at [58].
The application for leave to appeal was supported by the affidavit of Mr McDonald sworn on 27 November 2013 to which was exhibited a copy of the reasons of the Senior Member, a copy of the decision in Lander, a copy of the transcript of the hearing before the Senior Member on the first day and a copy of the draft notice of appeal.
Leave to appeal – applicable principles
The procedure for applying for leave to appeal under s 148 of the VCAT Act is regulated in part by Order 4 of Chapter II of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. Rule 4.09(1) confers discretion on the Associate Judge and, without limiting that discretion, empowers refusal of leave if the Associate Judge is satisfied that the applicant does not have a prima facie case on appeal or that to refuse leave would impose no substantial injustice.
The approach to the question whether or not leave should be granted under s 148(1) of the VCAT Act was set out comprehensively in the decision of the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls.[10] That approach was conveniently summarised by Warren CJ in Myers v Medical Practitioners’ Board of Victoria.[11] That summary is as follows:
[10][1999] 3 VR 331.
[11](2007) 18 VR 48 at [28].
(a)Whether leave is granted or not must always depend upon the justice of the particular case;
(b)if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal’s succeeding or failing;
(c)the applicant need not establish an error below – that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;
(d)although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;
(e)once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and
(f)where the order sought to be appealed is an interim order, there may be reason bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.
(footnotes omitted)
Warren CJ also pointed out in Myers that the guidelines laid out are not hard and fast rules and set out a part of the following passage from the reasons of Phillips JA in Hulls:
There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the Court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines: When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in a particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
(emphasis added)
In Hulls, Phillips JA considered an argument that the provision made by r 4.09 in some way provided criteria for the granting of leave to appeal. He somewhat emphatically rejected that this was the proper interpretation of the rule. But it is apparent in my view that the matters identified in r 4.09(2), which may guide an Associate Judge in refusing leave to appeal, are consistent with, even on all fours with, the matters identified by the Court of Appeal in Hulls as circumstances in which leave to appeal may be refused.
Leave to appeal
Ground 1
Mr Burnside QC, who appeared for Mr McDonald, submitted that the decision of the Full Court of the Australian Capital Territory Supreme Court in Lander[12] established a principle applicable in this case.
[12][2009] ACTSC 177.
The substance of the principle is that there was no unsatisfactory professional conduct on the part of a solicitor making accusations of the kind made by Mr McDonald unless they were established to be false or without foundation to his knowledge.[13]
[13]Lander v Law Society of ACT (supra) at [58].
The decision in Lander concerned an allegation of contravention of a rule of the ACT Legal Profession (Solicitors) Rules 2006 in substantially similar terms to Rule 21 of the Victorian Rules.[14] Mr Burnside QC submitted that, in accordance with the principles derived from cases such as Farah Constructions Pty Ltd v Say-Dee Pty Ltd,[15] and Australian Securities Commission v Malborough Goldmines Ltd[16] I should follow the decision in Lander unless I was satisfied that it was clearly wrong.
[14]Lander v Law Society of ACT at [13].
[15](2007) 230 CLR 89 at [135].
[16](1993) 177 CLR 485 at [492].
The Senior Member succinctly summarised the circumstances in Lander.[17] In that case a solicitor was acting for a teacher seeking medical retirement on the basis of total incapacity for work. Believing the relevant Department was dragging its feet, and in the light of other experiences with other clients, the solicitor wrote a highly critical letter to the Department. Amongst other things, it stated that the Department had a long history of failing to communicate substantively and honestly, or at all, that officers were rude and unhelpful, that the Department had engaged in malpractice and maladministration for years and it bore grudges against people who engaged lawyers.
[17]Reasons [2013]VCAT 1943 at [33]-[35].
The Tribunal found the solicitor guilty of unsatisfactory professional conduct. He appealed. The Tribunal had not examined whether the solicitor had a reasonable basis for the provocative language he employed in correspondence to the Department. The full Court comprising Higgins CJ, Gray and Refshauge JJ set aside the finding of unsatisfactory professional conduct because:
In our view, the real issue was not that the solicitor made the comments complained of in the course of correspondence concerning his client’s claim, but whether the accusations and criticisms he made were false or without foundation, to his knowledge. If that were to be made out, then the finding of unsatisfactory professional conduct should be upheld. However, it seems to me [sic] that particular issue was not addressed by the Tribunal.[18]
[18][2009] ACTSC 177 at [58].
It was submitted by Mr Burnside QC, for Mr McDonald, that because the Senior Member had not found that Mr Catanese’s version of the telephone conversation on 24 August 2011 was correct, then it must follow from the evidence given by Mr McDonald, that he firmly believed that Mr Catanese had lied in the course of that telephone conversation, that it had not been established that the accusations he made about Mr Catanese were to his knowledge false or without foundation.
Mr Scotter, who appeared for the Commissioner, submitted that the proposed appeal has no prospect of success, and leave to appeal should therefore be refused. He submitted that in Lander it was critical that the criticisms levelled by the solicitor were directed to the Department against which a claim was being pursued on behalf of his client. Accordingly, unless the accusations and criticisms were false and without foundation, to the solicitor’s knowledge, the solicitor was entitled to make them in pursuing his client’s interest. That is to be contrasted to the situation where insulting or offensive criticisms are made, which are unnecessary and do not advance the claims being pursued on behalf of a client, as was the situation here.
Mr Scotter submitted that it was on this basis that the Senior Member distinguished Lander’s case (at [70]). No apparent interest of McDonald’s client was being pursued by his assertions that Catanese was “fundamentally dishonest”. Further, these were letters to another practitioner relating to that practitioner’s conduct, not the client’s. This distinction was recognised by the Court in Lander.[19]
[19][2009] ACTSC 177 at [46]-[47].
The test for the grant of leave is, as I have referred above, whether there is a real or significant argument to be put that error exists. The applicant need not establish an error below – that is for the appeal itself. It seems to me that there is a question of law that is raised by Mr McDonald and that it is arguable. The question is whether the principle asserted to be derived from Lander is as stated by Mr Burnside, and whether it is applicable in this case.
In a nutshell, the question of law is whether there was no unsatisfactory professional conduct on the part of a solicitor making accusations of the kind made by Mr McDonald unless they were established to be false or without foundation to his knowledge.
In this case there are two added elements. First, the importance of the question to Mr McDonald as a practising solicitor is relevant. If his contention is correct, and his firm belief that he was lied to by Mr Catanese is a reasonable basis for making the statements in the two letters, then to allow the error to go uncorrected could impose substantial injustice on him. Secondly, there is the authority of the decision in Lander and its applicability to the facts of this case. Whether the learned Senior Member was correct to distinguish it on the grounds he did is a question of general importance to the legal profession.
Ground 2
The second ground in the proposed notice of appeal seeks to extract from extensive reasons one paragraph of many. In paragraph [59] the Senior Member said:
There is an incongruity in the fact that Mr McDonald had a conversation with Mr Proietto on 26 August 2011 during which this issue was ventilated, and yet after a further four days to reflect, Mr McDonald sent the letter of 30 August 2011 in such intemperate terms. After hearing Mr McDonald’s evidence and submissions, it appears the most likely explanation for this is that the comments about Mr Catanese were written in anger, following receipt of the $500 offer the day before. Indeed, the offensive statements about Mr Catanese were contained in the same short letter of 30 August 2011 as Mr McDonald’s rejection of the offer as not genuine, not meeting the requirements of the Civil Procedure Act and demonstrating a lack of good faith.
Mr Burnside submitted that this was an irrelevant consideration, that there was no evidence to support it and its presence in the reasons may have affected the resultant findings against Mr McDonald. Mr Burnside could not, however, identify how this statement had any effect on the conclusions the Senior Member reached. He nevertheless submitted that it was a part of the reasons and it could not be said that it did not affect the result.
Mr Scotter submitted that the Senior Member gave reasons for the finding that the most likely explanation for the intemperate terms of the letter dated 30 August 2011 was that the comments about Catanese were written in anger. He submitted that it is a factual finding and the right to appeal granted by s 148(1) of the VCAT Act is confined to appeals on questions of law. He added that the finding that the letter was written in anger, if overturned, would not alter the result.
It is trite law that where the Tribunal takes into account an irrelevant consideration that may amount to a question of law.[20] But that error must be a vitiating error, in the sense that the matter taken into account can be shown to affect the decision. As Phillips JA said in the quote from Hulls Case set out above, the question of law must be one which is relevant to the granting of the relief sought on appeal. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave.
[20]See for example, Bell Corp Victoria Pty Ltd v Stephenson [2003] VSC 255 at [9]; Martin v Fasham Johnson Pty Ltd [2007] VSC 54 at [39].
The reasons of the Senior Member make clear, but when read as a whole, that what he was saying in this paragraph is that after hearing all the evidence, and the submissions, the most likely explanation for Mr McDonald’s accusations against Mr Catanese is that they were written in anger following the receipt of the derisory offer the day before. That is not one of the grounds upon which the Senior Member concluded that Mr McDonald had engaged in unsatisfactory professional conduct by breaching Rule 21. It is a part of the discussion of the events and circumstances surrounding the sending of the letters the subject of the charges, and no more than that. Whether or not it is an irrelevant consideration, it cannot affect the outcome of any appeal.
I therefore conclude that this ground does not disclose a question of law that is reasonably arguable.
Ground 3
The last ground is that the Tribunal failed to afford natural justice in that the appellant was not allowed to put relevant questions in cross-examination.
In support of this ground, Mr McDonald pointed to a number of pages of the transcript he had exhibited to his affidavit. My reading of the transcript, and in particular, these pages, indicates that Mr McDonald had ample opportunity to cross-examine on appropriate and relevant matters. He made extensive, verbose and repetitive submissions to the Senior Member regarding what he considered to be his rights, and what was relevant, and was treated with tolerance and respect by the Senior Member. What the transcript shows is Mr McDonald, who represented himself before VCAT, failed to understand what was relevant and what was not.
Conclusion
For these reasons I conclude that in the exercise of the discretion given to me by s 148(5) of the VCAT Act and Rule 4.09 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, I should grant leave to appeal on the first ground, but refuse to grant Mr McDonald leave to appeal the decision of the Senior Member on the second and third grounds.
I will make orders accordingly. In the circumstances, and subject to hearing submissions of the parties on the matter, my preliminary view is that the costs of this application should be costs in the Appeal.
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