McDonald v Legal Services Commissioner (No 2)
[2017] VSC 89
•14 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 00429
| ALAN JAMES McDONALD | Plaintiff |
| v | |
| LEGAL SERVICES COMMISSIONER | Defendant |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 December 2016, 28 March and 19 June 2017 |
DATE OF JUDGMENT: | 14 December 2017 |
CASE MAY BE CITED AS: | McDonald v Legal Services Commissioner (No 2) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 89 |
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ADMINISTRATIVE LAW – judicial review – appeal – question of law – determination by Victorian Civil and Administrative Tribunal that solicitor was guilty of unsatisfactory professional conduct in writing letters to other solicitor in employment dispute – finding that solicitor did not write letters in pursuit of client’s interests made without taking into account finding that solicitor had honest basis for doing so – whether error of law – rule requiring solicitors to take all reasonable care to maintain integrity and reputation of legal profession by ensuring courteous communications and avoiding offensive or provocative language – purpose of rule not to ensure courtesy as such but public confidence in administration of justice – whether VCAT properly applied and interpreted rule in light of that purpose – human right to freedom of expression – scope of that right – relevance and importance of that right to lawyers and to independence of legal profession, judiciary and legal system – application and interpretation of rule taking the right into account – balancing the exercise of freedom of expression by lawyers with their professional obligations – distinguishing between scope and limitation of human rights – reconciling general and specific limitation provisions – Legal Profession Act 2004 (Vic) s 4.4.4(a), Professional Conduct and Practice Rules 2005 (Vic) r 21, Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7(2), 15(2)–(3), 32(1).
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr J Burnside QC and Mr M Albert | McDonald Murholme |
| For the defendant | Mr T Scotter | Victorian Legal Services Commissioner |
| For the Attorney-General (Victoria) | Ms M Richards SC and Ms S Gory | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
Alan James McDonald (of McDonald Murholme) was acting for an employee in a redundancy dispute. In correspondence with the solicitors for the employer, Lander & Rogers, he twice accused the solicitor responsible of being ‘fundamentally dishonest’, having ‘told lies’ and having engaged in ‘deliberate and calculated’ dishonesty about whether the employer would settle the dispute. Upon grounds of discourtesy, Lander & Rogers reported Mr McDonald to the Legal Services Commissioner, who brought a disciplinary prosecution against him in the Victorian Civil and Administrative Tribunal. The dispute later settled on confidential terms.
After hearing the evidence, VCAT accepted that Mr McDonald honestly believed that the employer’s solicitor had lied to him. But, without taking this into account, VCAT found that he had not made the allegations in legitimate pursuit of his client’s interests. It found him guilty of two charges of unsatisfactory professional conduct.[1]
[1]Victorian Legal Services Commissioner v McDonald [2016] VCAT 21 (12 January 2016) (Senior Member Jonathan Smithers) (‘McDonald (VCAT) (No 2)’) (consideration of penalty was deferred).
Under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), Mr McDonald now seeks leave to appeal and, if that leave is granted, appeals against the orders of VCAT finding him guilty of the charges. He contends that VCAT erred in law in failing to appreciate that whether he made the allegations in legitimate pursuit of his client’s interests, which was his duty, was connected with whether he had a reasonable basis for making them, which informed the exercise of that duty.
When making representations to another lawyer on behalf of a client, a lawyer exercises both a professional responsibility that is subject to disciplinary regulation in the public interest and the right to freedom of expression that is stipulated in s 15(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Determination of this appeal calls for examination of the nature of that responsibility in the light of that right, as to which notices under s 35(1) of the Charter have been given and the Attorney-General has intervened.
Disciplinary regulation of inter-lawyer communications
For solicitors, professional responsibilities when dealing and communicating with other legal practitioners are specified in r 21 of the Professional Conduct and Practice Rules 2005 (Vic) thus:
Communications
A practitioner, in all of 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.
The Rules were originally enacted under s 72 of the Legal Practice Act 1996 (Vic) (‘the old Act’). By s 72(2), they had to be consistent with the general requirement (among others) stated in s 64(h) that all practitioners ‘act with honesty, fairness and courtesy in all dealings with other practitioners and firms in a manner conducive to advancing the public interest’. Consistently with that requirement, the part of the Rules covering relations between practitioners, including r 21, is headed by this overarching statement:
In all of their dealings with other practitioners, practitioners should act with honesty, fairness and courtesy, and adhere faithfully to their undertakings, in order to transact lawfully and competently the business which they undertake for their clients in a manner that is consistent with the public interest.
By the carry-over provisions of the Legal Profession Act 2004 (Vic),[2] the Rules are binding on Australian legal practitioners regulated by the Law Institute of Victoria, including Mr McDonald.
[2]Clause 2.5(2) of sch 2, ss 1.2.1 (definition of ‘legal profession rules’) and 3.2.9(3); see also 3.2.17(1).
The purpose of r 21 of the Rules is to ‘maintain the integrity and reputation of the legal profession’, just as the purpose of the principle in s 64(h) of the old Act was ‘advancing the public interest’. The rule regulates inter-lawyer dealings and communications in the interests of maintaining public confidence in the legal profession and hence the legal system; requiring lawyers to ensure the private civility of their relations is a means of achieving that end, not of achieving the cultivation of good manners in the legal profession as an end in itself.
Rule 21 is not the only rule that applies in relation to inter-lawyer communications. Rule 30.1.1 provides that ‘[a] practitioner must not engage in conduct, whether in the course of practice or otherwise, which is … dishonest’. This part of the Rules in which this rule is to be found is headed by this over-arching statement:
A practitioner is endowed by law with considerable privileges, including exclusive entitlement to appear in some courts and tribunals, exclusive entitlement to conduct some transactions and draw some documents, and special protection against disclosure of client confidences. These privileges require that the community has confidence that a practitioner must at all times be fit to enjoy those privileges. A practitioner ought also to act in ways which uphold the system of administration of justice in relation to which those privileges are conferred.
This general obligation of honesty in the conduct of legal practice applies specifically in the context of inter-lawyer communications. Mr McDonald’s allegations were, in effect, that the Lander & Rogers solicitor had breached this obligation.
Charges brought and findings of guilt made against Mr McDonald
The relevant facts and circumstances may be summarised by reference to the following key incidents, which are based on VCAT’s findings of fact:
· on 19 August 2011, Mr McDonald wrote a letter of demand on behalf of his client to the employer demanding an extra redundancy payment of $25 000;
· on 24 August, 2011, Lander & Rogers, through its employee solicitor, David Catanese, who was responsible for the matter, replied to Mr McDonald on behalf of the employer refuting the demand;
· later on 24 August 2011, Mr McDonald and Mr Catanese spoke by telephone, leaving Mr McDonald with the honest belief, contrary to Mr Catanese’s version, that Mr Catanese had stated that there was no scope for settlement;
· later again on 24 August 2011, Mr McDonald wrote to Lander & Rogers complaining that he had received no open response to his letter of demand and referring to Mr Catanese’s statement;
· on 25 August 2011, Lander & Rogers wrote to Mr McDonald calling for him to withdraw his reference to Mr Catanese’s statement because it misrepresented the matters discussed;
· on 26 August 2011, Mr McDonald, Mr Catanese and Daniel Proietto (Mr Catanese’s principal solicitor) spoke by telephone where the competing versions were put and the conversation ended with Mr Proietto saying that he would seek instructions as to whether an offer would be made;
· on 29 August 2011, Lander & Rogers wrote to Mr McDonald with an offer of $500 in full and final settlement;
· on 30 August 2011, Mr McDonald wrote to Lander & Rogers in the following material terms:
We refer to the letters of 25 August 2011 and 29 August 2011.
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.
Your letter of 29 August 2011 contains an offer of $500 gross which is not a genuine offer of settlement and does not meet the requirements of the Civil Procedure Act. If it were produced for [sic] the question of costs as you indicate, it would demonstrate that there is a lack of good faith being displayed in the correspondence.
Should you wish to engage in meaningful negotiations please let us have a more sensible offer within 24 hours.
· later on 30 August 2011, Lander & Rogers wrote to Mr McDonald in the following material terms:
Your letter is highly unprofessional, defamatory and outrageous.
There is absolutely no basis for your allegation that Mr Catanese is ‘fundamentally dishonest’ or that he has told ‘lies’.
Unless you unconditionally withdraw your letter by 12.00 noon today, your letter will be referred to the Legal Services Commissioner without further notice.
We look forward to your immediate response.
· on 2 September 2011, Lander & Rogers wrote to Mr McDonald attaching a draft complaint to the Commissioner and seeking the unconditional withdrawal of the allegation;
· on 2 September 2011, Mr McDonald wrote to Lander & Rogers in the following material terms:
I refer to your earlier letter today. As indicated in my telephone conversation with you on Tuesday 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:
1.He lied about the contents of the telephone conversation.
2.He tried to misrepresent the contents of the telephone conversation to his employer in his later correspondence with this firm because he knew full well that he had done the wrong thing by refusing to participate in genuine negotiations when it would have been appropriate to do so.
3.He attempted to malign me in his discussions with you and others and apparently continued to do so. Apparently this is an attempt to prevent action being taken by your firm against him which would otherwise be necessary. According to you the matter would need to be dealt with by the partners of the firm given the allegations which I made against him in my letter of 30 August 2011.
4.I have not demanded that your firm take disciplinary proceedings against Mr Catanese because that is a matter for you as his employer but I would be very disappointed if you attempted to support his dishonesty and implement[3] yourself in his conduct.
[3]Mr McDonald said in evidence that the word he meant to use here was ‘implicate’.
Mr McDonald did not withdraw the allegations. Lander & Rogers referred the matter to the Commissioner, who issued the disciplinary proceeding in VCAT. The underlying dispute was later settled between Mr McDonald and Lander & Rogers on behalf of their clients on confidential terms.
The two charges brought by the Commissioner in VCAT against Mr McDonald were based on his letters of 30 August 2011 and 2 September 2011. The charges were:
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.
By orders dated 18 November 2013, VCAT found Mr McDonald guilty of the charges.[4] Mr McDonald successful appealed to his court. On 2 June 2015, Zammit J set aside the orders and remitted the matter back to the same senior member for reconsideration according to law.[5] Upon that reconsideration, VCAT again by orders found Mr McDonald guilty of the two charges.[6] Hence the present appeal.
[4]Legal Services Commissioner v McDonald [2013] VCAT 1943 (18 November 2013) (Senior Member Jonathan Smithers) (‘McDonald (VCAT) (No 1)’). The question of penalty was deferred pending appeal.
[5]McDonald v Legal Services Commissioner [2015] VSC 237 (2 June 2015) (‘McDonald (VSC)’).
[6]McDonald (VCAT) (No 2) [2016] VCAT 21 (12 January 2016) (Senior Member Jonathan Smithers).
The tribunal acknowledged that Mr McDonald was concerned about the potential application of the Civil Procedure Act 2010 (Vic) and the Fair Work Act 2009 (Cth) to his negotiations with Lander & Rogers over his client’s claim. Part 2.3 of the Civil Procedure Act imposes upon legal practitioners certain overarching obligations in civil proceedings. These include the obligations in s 18 not to make a legal claim without a proper basis and the obligation in s 22 to use reasonable endeavours to resolve the dispute. Section 376(2)(a) of the Fair Work Act makes provision for the making of costs orders against lawyers who encourage commencement of proceedings when it should have been apparent that the claim had no reasonable prospects of success. However, the tribunal determined that, despite these concerns, Mr McDonald’s letters were not written in legitimate pursuit of his client’s interests. That finding was made without considering whether Mr McDonald had a reasonable basis for making the allegations that he made.
The grounds of the appeal are (in summary) that VCAT erred in law in interpreting and applying r 21 of the Professional Conduct and Practice Rules by:
(1)considering whether Mr McDonald made the allegations in the legitimate pursuit of his client’s interests separately from considering whether there was a reasonable basis for the allegations; and/or by failing entirely to determine whether that reasonable basis existed when considering whether the allegations were so pursued; and
(2)determining whether Mr McDonald made the allegations in the legitimate pursuit of his client’s interests at large and not by reference to the limitation established by the authorities that advocacy is so pursued when not extraneous to those interests.
Rule 21 is a ‘subordinate instrument’ and therefore a ‘statutory [provision]’ under s 32(1) of the Charter.[7] As application of the professional obligation in r 21 engages Mr McDonald’s right to freedom of expression in s 15(2), it is to be interpreted under s 32(1) in a manner that takes account of that right: an available interpretation that is compatible with human rights is preferred to one that is not.[8] As freedom of expression is a fundamental freedom recognised by the common law (see below), the principle of legality also applies to support such an interpretation.[9]
Freedom of expression under the Charter and legal practitioners
[7]See s 32(1) of the Charter and the definition of ‘statutory provision’ in s 3, combined with the definition of ‘subordinate instrument’ in s 38(b)(i) of the Interpretation of Legislation Act 1984 (Vic) (see also s 81(1) of the old Act).
[8]Slaveski v Smith (2012) 34 VR 206, 215 [24] (Warren CJ, Nettle and Redlich JJA).
[9]Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 591-2 [43] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).
Engagement
Freedom of expression is a deeply ingrained principle of the common law that has special importance for lawyers because it is their professional responsibility to make representations on behalf of clients. Authoritative statements of the principle in this connection emphasise both the importance of the freedom for legal practice and the need for lawyers to exercise it properly. As to the former, Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ said in the leading judgment of Clyne v New South Wales Bar Association over half a century ago:
The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts.[10]
As to the latter, their Honours went on to make this equally strong statement that the freedom must not be abused:
But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned.[11]
[10](1960) 104 CLR 186, 200 (‘Clyne’).
[11]Ibid 200–1.
Freedom of expression is also fundamentally important to the independence of the legal profession and the administration of justice. Whenever necessary in the interests of clients, lawyers are professionally responsible for exercising that independence by speaking truth to power, for which freedom of expression is a functional necessity. As stated in Morice v France by the European Court of Human Rights:[12]
[12](2016) 62 EHRR 1, 39 [135] (including the footnote) (‘Morice’).
The question of freedom of expression is related to the independence of the legal profession, which is crucial for the effective functioning of the fair administration of justice.[13]
Respecting and ensuring the freedom of expression of lawyers has an even deeper significance because their professional independence is fundamentally important to the institutional independence of the judiciary in the system of justice.[14] Thus the Supreme Court of Canada stated in Pearlman v Manitoba Law Society Judicial Committee:
Stress [is] rightly laid on the high value that free societies have placed historically on an independent judiciary, free of political interference and influence on its decisions, and an independent bar, free to represent citizens without fear or favour in the protection of individual rights and civil liberties against incursion from any source, including the state.[15]
[13]See Sialkowska v Poland (2010) 51 EHRR 18, 492 [111].
[14]For discussion of the operation of the right to freedom of expression in s 15(2) as it applies to legal proceedings and in the context of the principles of open justice and free communication of information, see PQR v Secretary, Department of Justice and Regulation (No 1) [2017[ VSC 513 (26 September 2017) [34] ff (Bell J).
[15][1991] 2 SCR 869, 887 (Iacobucci J), citing Ministry of Attorney-General (Ontario), ‘The Report of the Professional Organizations Committee’ (1980) 26.
In recognition of the central role played by lawyers in protecting and promoting human rights, the United Nations has adopted the Basic Principles on the Role of Lawyers.[16] These recognise that lawyers must ‘maintain the honour and dignity of their profession as essential agents of the administration of justice’ and that ‘[l]awyers like other citizens are entitled to freedom of expression’, but should always conduct themselves ‘in accordance with the law and the recognized standards and ethics of the legal profession’.[17] Recalling the Principles, the Human Rights Council in 2015 recorded its conviction that
[16]Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba from 27 August to 7 September 1990.
[17]Ibid Principles 12, 23.
an independent and impartial judiciary, an independent legal profession, an objective and impartial prosecution able to perform its functions accordingly, and the integrity of the judicial system are prerequisites for the protection of human rights and the application of the rule of law, and for ensuring fair trials and the administration of justice without any discrimination.[18]
The role of lawyers exercising their right to freedom of expression in the administration of justice was recently stressed by the Special Rapporteur on the Independence of Judges and Lawyers, Mónica Pinto, in a report to the General Assembly of the United Nations:
Freedom of expression and association have specific importance in the case of persons involved in the administration of justice. They constitute essential requirements for the proper and independent functioning of the legal profession, since lawyers use written and oral communication as a fundamental professional tool.[19]
[18]Human Rights Council, Resolution on Independence and Impartiality of the Judiciary, Jurors and Assessors, and the Independence of Lawyers, 29th sess, Agenda item 3, UN Doc A/HRC/29/L.11 (30 June 2015).
[19]Report of Special Rapporteur on the Independence of Judges and Lawyers, 71st sess, Agenda item 69(b), UN Doc A/71/348 (22 August 2016) [55].
The connection between freedom of expression as a human right possessed by lawyers and regulation of their professional communications was made by Higgins CJ, Gray and Refshauge JJ in Lander v Council of the Law Society of the ACT.[20] Their Honours took the right to freedom of expression stipulated in s 16 of the Human Rights Act 2004 (ACT) into account when interpreting r 25 of the Legal Profession (Solicitors) Rules 2006 (ACT), which is in the same terms as r 21 of our Rules.[21]
[20](2009) 231 FLR 399 (‘Lander’).
[21]Ibid 419 [37]–[38], 421 [57].
In the Victorian Charter, the human right to freedom of expression is specified in s 15:
(1)Every person has the right to hold an opinion without interference.
(2)Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether—
(a)orally; or
(b)in writing; or
(c)in print; or
(d)by way of art; or
(e)in another medium chosen by him or her.
(3)Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary—
(a)to respect the rights and reputation of other persons; or
(b)for the protection of national security, public order, public health or public morality.
As can be seen, the right to freedom of expression in s 15(2) may be limited under s 15(3). It may also be limited under 7(2), which provides:
(2)A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a)the nature of the right; and
(b)the importance of the purpose of the limitation; and
(c)the nature and extent of the limitation; and
(d)the relationship between the limitation and its purpose; and
(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
The scope of the right to freedom of expression in s 15(2) of the Charter is our first issue because r 21 of the Rules imposes limitations upon the exercise of, and therefore engages, this right. Rule 21 must be properly interpreted in this light (s 32(1)). To understand how much room there is for exercising the right to freedom of expression after this process of interpreting r 21 has been undertaken, it is first necessary to identify the scope of the right in its plain unlimited state. As we will see, the rule only limits the exercise of so much of the right in that state as is necessary to preserve the integrity and reputation of the legal profession and public confidence in the administration justice.
For reasons fully discussed in Re Kracke and Mental Health Review Board,[22] identifying the scope of a human right under the Charter at the engagement stage is a distinct analytical step that is not to be confused with determining how far the right is or may be limited, which may arise later at the justification stage.[23] When identifying the scope of the right, you put the limitation (if any) to one side and focus on the protection afforded by the right in its plain state.[24] The ‘scope’ of a human right is just a short-hand way of referring to its ‘meaning and content’. The scope of a human right under the Charter is identified by a process of interpretation, one that is focussed on the words of the enabling provision of pt 2, but is purposive and takes account of the fundamental values and interests that the right is intended to express and ensure. Accordingly, the scope of human rights under the Charter is identified in ‘the broadest possible way’,[25] which reflects the international position.[26] The right is intended to operate together with the other rights in the framework of rights under the Charter to delineate the boundaries of the protective arena within which all individuals equally may live free, fulfilling and dignified lives. Therefore, when you have so identified the scope of a human right under the Charter, you have something precious to the individual beating in your hands — a human right described in the preamble to the Charter as ‘essential in a democratic and inclusive society that respects the rule of law, human dignity, equality and freedom.’ How the right in that plain state influences interpretation of statutory provisions (s 32(1)) and the conduct and decisions of public authorities (s 38(1)) or may be justifiably limited by such provisions (s 7(2) and any internal limitation provision) may then be properly appreciated.
[22](2009) 29 VAR 1, 27–33 [67]–[97] (Bell J); see also Castles v Secretary, Department of Justice (2010) 28 VR 141, 157–8 [55]–[56] (Emerton J); De Bruyn v Victorian Institute of Forensic Health (2016) 48 VR 647, 683 [102]–[103] (Riordan J); Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 (21 December 2016) [143] (Garde J).
[23]See further Sabet v Medical Practitioners Board (Vic) (2008) 20 VR 414, 431 [108] (Hollingworth J); Baker (a pseudonym) v DPP (Vic) [2017] VSCA 58 (22 March 2017) [56] (Tate JA, Maxwell P agreeing).
[24]PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373, 384 [36] (Bell J).
[25]Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415, 434 [80] (Warren CJ).
[26]See, eg, Hansen v The Queen [2007] 3 NZLR 1, 15 [22] (Elias CJ) (footnotes omitted), referring to New Zealand Bill of Rights Act 1990 (NZ):
The first question is the interpretation of the right. In ascertaining the meaning of the right, the criteria for justification are not relevant. The meaning of the right is ascertained from the ‘cardinal values’ that it embodies. Collapsing the interpretation of the right and [its] justification is insufficiently protective of the right. The latter justification is according to a stringent standard, in which a party seeking to justify must show that the limit on a fundamental right is ‘demonstrably justified’ in a free and democratic society.
In Re XYZ and Victoria Police,[27] the scope of the right to freedom of expression in s 15(2) of the Charter, which is the right at issue in this case, was identified. As was there said generally of that right:
[27](2010) 33 VAR 1 (‘XYZ’).
The fundamental values and purposes of the human right to freedom of expression have been extensively examined in the authoritative texts and international authorities.
Freedom of expression is cherished by the common law. In R v Secretary of State for the Home Department; Ex parte Sims,[28] Lord Steyn said this of freedom of expression: ‘In a democracy it is the primary right: without it an effective rule of law is not possible.’ His Lordship went on to explain the philosophical basis of freedom of expression:[29]
Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market:’ Abrams v United States.[30] Thirdly, freedom of speech is the lifeblood of democracy. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.[31]
In the Strasbourg court, freedom of information is one of the ‘essential foundations’ of democratic society, and ‘one of the basic conditions for its progress and for the development of every man.’[32] In Canada, freedom of expression is seen to be ‘essential to the functioning of … democracy, to seeking the truth in diverse fields of inquiry, and to [the individual’s] capacity for self expression and individual realization’.[33]
Those values and purposes of the human right of freedom of expression are very well accepted and apply equally to the rights as specified in s 15(2) of the [Charter].[34]
Thus we may say that the fundamental values and interests represented by the right to freedom of expression are freedom, self-actualisation and democratic participation for individuals personally; and freedom, democracy under the rule of law and ensuring governmental transparency and accountability for society generally. The purpose of the right is to give effect to those fundamental values and interests.
[28][2000] 2 AC 115.
[29]Ibid 126.
[30]250 US 616, 630 (Holmes J, dissenting) (1919).
[31]See Geoffrey R Stone et al, Constitutional Law (Little Brown, 3rd ed, 1996) 1078–86.
[32]Handyside v United Kingdom (1979–80) 1 EHRR 737, 754–5 [49].
[33]Grant v Torstar Corporation [2009] SCC 61, [1] (McLachlin CJ).
[34]XYZ (2010) 33 VAR 1, 88 [524]–[527] (Bell J).
The explanatory memorandum states[35] that s 15 was modelled on art 19 of the International Covenant on Civil and Political Rights[36] (see below). It is therefore relevant to refer to the right in that original form. Article 19 provides:
[35]Explanatory memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 13.
[36]Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
1Everyone shall have the right to hold opinions without interference.
2Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a)For respect of the rights or reputations of others;
(b)For the protection of national security or of public order (ordre public), or of public health or morals.
Of the purposes of the right to freedom of expression in art 19, the Human Rights Committee has said:
2 Freedom of opinion and freedom of expression are indispensable conditions for full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society. The two freedoms are closely related, with freedom of expression providing the vehicle for the exchange and development of opinions.
3 Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the protection and promotion of human rights. [37]
The same may be said of the right as expressed in s 15 of the Charter. This supports the way that I have described the fundamental values and interests represented by the right.
[37]Human Rights Committee, General Comment No 34: Article 19 (Freedoms of Opinion and Expression), 102nd sess, UN Doc CCPR/C/GC/34 (12 September 2011) [2]–[3] (citations omitted).
As can been from the language of art 15(2) of the Charter and art 19(2) of the ICCPR, the right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds. Accordingly, the Human Rights Committee has commented that ‘[t]his right includes the expression and receipt of communication of every form of idea and opinion capable of transmission to others’ subject to the limitation provisions (see arts 19(3) and 20).[38]
[38]Ibid [11].
In accordance with that general understanding, it is well established that lawyers have the human right freely to express themselves, whatever be the form of their communications, both when representing clients in the course of their professional work and when engaging in public debate about legal, political and social issues, whether in a personal or a professional capacity. This proposition is firmly established in the Australian[39] and international jurisprudence,[40] in the United Nations,[41] and is consistent with the common law as reflected in (among many decisions) Clyne.[42] I would therefore so hold in relation to the application and interpretation of the right to the legal profession under s 15(2) of the Charter. Of course, such communications must fall within the bounds of the governing professional rules, but this represents the regulation of the exercise of the right, not the reduction of its substantive scope. It was therefore rightly accepted in this case that, in making the allegations in the letters to Lander & Rogers in the course of acting for his client, Mr McDonald was exercising the right to freedom of expression in s 15(2) of the Charter. Whether he breached r 21 of the Rules (which limited the exercise of that right) in so doing is another matter.
[39]Lander (2009) 231 FLR 399, 419 [37]–[38], 421 [57] (Higgins CJ, Gray and Refshauge JJ).
[40]See, eg, Doré v Barreau du Quebec [2012] 1 SCR 395, 428 [63] (Abella J) and authorities cited therein; Morice (2016) 62 EHRR 1, 38 [132]–[134] (European Court of Human Rights) and authorities cited therein; Tristán Donoso v Panamá (Unreported, Series C, No 193, 27 January 2009) [114] (Inter-American Court of Human Rights); Human Rights Committee, General Comment No 34: Article 19 (Freedoms of Opinion and Expression), 102nd sess, UN Doc CCPR/C/GC/34 (12 September 2011) [23]. The extensive European jurisprudence is reviewed in ‘Freedom of Expression and its Relationship with the Right to Respect for Private Life and the Right to a Fair Trial: the Jurisprudence of the European Court of Human Rights’ (The AIRE Centre and Civil Rights Defenders, March 2017) ch [V]. Commonwealth and American authorities are discussed in Paula Baron and Lillian Corbin, ‘Robust Communications or Civility — Where Do We Draw the Line?’ (2015) 18(1) Legal Ethics 1.
[41]See, eg, Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba from 27 August to 7 September 1990, Principle 12. The United Nations standards applying to the legal profession are reviewed in American Bar Association Center for Human Rights, Summary of International Standards Concerning Attorney Disbarment [5]–[8].
[42](1960) 104 CLR 186, 200–1 (Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ).
Some seek to legitimise criminal acts by reference to the human right to freedom of expression. This raises a classification problem. The problem is whether such conduct is to be classified within the scope of the right as such. That, in the minds of many, would be a misuse of human rights to be condemned as ‘grotesque’[43] in civilised society. Another approach is to regard such conduct as being justifiably limited (made an offence) by the criminal law, which preserves the substantive right against state interference from outside the human rights framework. Both approaches have their pros and cons. When confronted with this problem in Magee v Delaney, Kyrou J held that ‘the exercise of the right in the form of damage to a third party’s property or a threat of such damage, is not protected by s 15(2)’,[44] adopting a strong version of the first approach based on general ‘public policy considerations’.[45]
[43]Eric Barendt, Freedom of Speech (Oxford University Press, 2nd Ed, 2005) 79–80.
[44](2012) 39 VR 50, 70 [97] (‘Magee’).
[45]Ibid 69 [89].
On the approach adopted by Kyrou J, it would appear always to be necessary, when applying and interpreting s 15(2), to determine whether particular speech or conduct is to be excluded from the substantive scope of the right by reason of general ‘public policy considerations’, which are potentially external to the human rights framework. There is room for debate about how this right should be applied (say) to criminals who would claim that murder is expressive conduct.[46] With respect, however, I am not convinced that reducing its substantive content and meaning by reference to general public policy considerations is the approach that should be supported, especially where these may not be subject to principled human rights evaluation. The approach would appear to be over-inclusive. The authorities referred to by Kyrou J highlight the problem and support his Honour’s analysis to some degree. But adopting a general public policy rider to the substantive application of the right seems to go beyond their premises. The problem is raised in relation to a highly exceptional category of case. I proceed upon the basis that the approach to be adopted to cases falling into this category does not need to be considered unless the particular case does so, which this case does not.
[46]See generally Colin Campbell, ‘Freedom of Expression’ in Matthew Groves and Colin Campbell, Australian Charters of Rights A Decade On (Federation Press, 2017) 105–9.
A related but separate question arises as regards the relationship between s 15(2) and s 15(3). The Attorney-General submitted, as a general proposition, that the right to freedom of expression in s 15(2) is qualified by reason of s 15(3). This submission will be examined next.
Limitation
The human rights regime in the Charter is unusual because it has both a general limitation provision in s 7(2) and a specific limitation provision in (among several other provisions) s 15(3). In cogent and detailed submissions, the Attorney-General contends that the specific limitation provision in s 15(3) operates to delimit somewhat the scope of the substantive right in s 15(2). Therefore one does not, as I have done above, identify the substantive scope of the right separately from the limitation, as would be the case with a right that is not ‘internally’ limited. Whatever be the role of s 7(2) in relation to the right in s 15(2) (and other such rights), its substantive scope is to be understood by reference to the after-effects of the application of the limitations in s 15(3). Rule 21 of the Professional Conduct and Practice Rules is to be interpreted against, and is compatible with the human right to freedom of expression in, s 15(2)–(3) of the Charter as so understood. I cannot accept this submission for the following reasons.
As a general proposition,[47] human rights are not absolute as the exercise of rights may be limited when demonstrably justified in democratic society. For that purpose, human rights regimes in comparable jurisdictions, whether constitutional or legislative, typically utilize a general or a specific limitations provision, but not both, as more fully discussed in Kracke.[48] The fact that the Victorian Charter includes both the general limitation provision in s 7(2) and the specific limitation provision in (for example) s 15(3) gives rise to an issue about how the two relate. In relation to s 15(3), it has been argued that different approaches have been adopted.[49] In my view, ss 7(2) and 15(3) must be read and applied harmoniously as part of the one coherent scheme; and they must be read and applied so as not to result in the substantive scope of the right in s 15(2) being reduced. These propositions are opposite sides of the same coin.
[47]Certain international human rights are not derogable or limitable: see generally Julie Debeljak, ‘Balancing Rights in a Democracy: the Problems With Limitations and Overrides of Rights Under the Victorian Charter of Human Rights and Responsibilities Act 2006’ (2008) 32 Monash University Law Review 422, 434, 437–8. The author argues there is disconformity between general derogation (via override) and limitation of rights under the Charter and the more limited and protective position under international law.
[48](2009) 29 VAR 1, 33–51 [98]–[196] (Bell J).
[49]Colin Campbell, ‘Freedom of Expression’ in Matthew Groves and Colin Campbell, Australian Charters of Rights A Decade On (Federation Press, 2017) 112–12.
Again as fully discussed in Kracke,[50] legality (lawfulness) and justification (proportionality) are central components of both the general limitation standard in s 7(2) and the specific limitation standard in s 15(3) (among others). The two standards perform the same function, one generally and the other specifically, of determining when and how much the substantive right in s 15(2) may justifiably be limited. As the central components of the standards are common, applying both when called for is achievable, and desirable in the interests of consistency, coherence and certainty. They complement each other and do not compete.
[50](2009) 29 VAR 1, 35 [107] ff (Bell J).
As a matter of language, ss 7(2) and 15(3) may both have effect with respect to statutory provisions limiting the right to freedom of expression in s 15(2). In determining whether any such limitations are compatible with human rights, there is no basis in their language for interpreting the provisions such that one applies but not the other. It would be inconsistent with the extrinsic materials to do so, for these make it unambiguously clear that Parliament intended both tests to be applied when called for.[51] There may be different ways of achieving this, but the approach attractively proposed by Carolyn Evans and Simon Evans is:
The preferable reconciliation of s 15(3) and s 7 of the Charter would appear to be that s 15(3) identifies the particular considerations that are relevant to the s 7 limitation inquiry. In particular, in relation to ‘the nature of the right’ (s 7(2)(a)), s 15(3) makes it clear that the right to freedom of expression entails responsibilities, and it identifies the purposes for which the right may be limited: s 7(2)(b), (d) and (e).[52]
This is close to the approach that I adopted in Kracke and here maintain (see below).
[51]Kracke (2009) 29 VAR 1, 33–4 [99] (Bell J) (referring to the Second Reading Speech); see also Julie Debeljak, ‘Balancing Rights in a Democracy: the Problems With Limitations and Overrides of Rights Under the Victorian Charter of Human Rights and Responsibilities Act 2006’ (2008) 32 Monash University Law Review 422, 426–7.
[52]Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Act (LexisNexis Butterworths, 2008) 166 [5.21]. This approach is favourably discussed by Colin Campbell, ‘Freedom of Expression’ in Matthew Groves and Colin Campbell, Australian Charters of Rights A Decade On (Federation Press, 2017) 112.
It is instructive to note that the Universal Declaration of Human Rights[53] has a general limitation provision. Article 29(2) provides:
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
So expressed, it the ‘exercise’ not the substantive content of the right that might be limited. The ICCPR does not have a general limitation provision. Relevant rights, such as the right to freedom of expression in art 19 (on which s 15 the Charter was modelled), have ‘internal’ limitations. The limitation in art 19(3) is also expressed in terms of the ‘exercise’ of the right in art 19(2), not its substantive content. This is a useful way of illustrating that, conceptually, limitation is a formal process for restricting, with democratic justification, the exercise of a right in particular circumstances and for particular purposes, not for reducing its substantive meaning and content. The enlivening DNA of a tree is unaffected when, perforce (and only perforce), you prune a branch causing obstruction; it can therefore regrow when a pressing need no longer exists to limit its shape in the space. The language of s 15(3) refers to lawful restriction of ‘the right’ of freedom of expression for the specified purposes, but I think the intention is the the same.
[53]GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).
Section 15(3) of the Charter states that ‘[s]pecial duties and responsibilities are attached to the right of freedom of expression’, which comes from art 19(3) of the ICCPR, except that in art 19(3) the duties and responsibilities explicitly attach to the ‘exercise’ of the right (see above). As explained by Manfred Nowak, this statement was intended to ‘offer States parties an express tool to counter abuse of power by the modern mass media’ and to ‘reinforc[e] the obligation of States to ensure that interference did not take place at the horizontal level’.[54] The object of this statement was indeed the mass media, as the travaux preparatoires demonstrate:
Those supporting [this statement] were of the opinion that freedom of expression was a precious heritage as well as a dangerous instrument, and they maintained that, in view of the powerful influence the modern media of expression exerted upon the minds of men and upon national and international affairs, the ‘duties and responsibilities’ in the exercise of the right to freedom of expression should be especially emphasized.[55]
This view prevailed when art 19 was adopted.[56] The context of this statement is thus clearly the exercise and potential limitation, not the substantive scope, of the right. The words ‘[i]t may therefore’ in art 19(3) connect the duties and responsibilities carried with the exercise of the right to the limitations test in the closing words of the article.[57] While the word ‘and’ is the connecting word in s 15(3) of the Charter, I think this provision is intended to operate in the same way in this respect also.
[54]Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev ed, 2005) 458 [42]; see also 459 [44].
[55]Marc J Bossuyt, Guide to the ‘Travaux Preparatoires’ of the International Covenant on Civil and Political Rights (Martinus Nijhoff, 1987) 386.
[56]Ibid 387.
[57]The Human Rights Committee treats the opening words of art 19(3) as going to the subject of limitation: General Comment No 34: Article 19 (Freedoms of Opinion and Expression), 102nd sess, UN Doc CCPR/C/GC/34 (12 September 2011) [21]–[22].
It follows that I maintain the conclusion that I expressed in Kracke that a specific (internal) limitation provision does not operate to reduce the substantive scope of the relevant right:
Where rights are expressed in terms that contain a specific limitation, the nature and content of the rights in their plain state are not seen to be reduced by the specific limitation. Rather, the specific limitation is seen as an indication of what might be considered in determining whether any limitations are reasonable and justified under the general limitations provision in s 7(2).
Thus, when identifying the scope of the right at the engagement stage, this is done broadly and purposively, even when the right contains a specific limitation. Such a limitation becomes subsumed in the overall justification analysis which is undertaken at the next stage.[58]
This applies to the relationship between s 15(2) and (3), and between s 15(3) and s 7(2) of the Charter. Both under s 7(2) (see especially para (a)) and s 15(2)–(3), justification analysis begins with recognition of the values and interests that inhere in the scope of the right in its plain unlimited state. The nature of the right as so understood ‘remains fixed in the justification analysis’.[59] The question is whether limitation of the exercise of the right is demonstrably justified, in the light of other important rights, values and interests or pressing social needs. This brings me to the purposes of r 21 of the Professional Conduct and Practice Rules.
[58]Kracke (2009) 29 VAR 1, 35 [109]–[110] (Bell J).
[59]Ibid 41 [141].
Without in any way undervaluing the fundamental importance of the right to freedom of expression for lawyers, it is recognised that regulation of their professional conduct serves important public interests.[60] The purposes of this professional regulation extend to communications between lawyers. Therefore, it has been declared that how lawyers (in their capacity as advocates) relate to each other involves ‘exceptional privileges and exceptional obligations’.[61] Of the public interest in ensuring civility in those relations, Martin CJ, McKechnie and Hall JJ said in Legal Profession Complaints Committee v in de Braekt:
the importance of courtesy in the legal system, and in the relationship between the legal profession, the court system, and [the] general public should not be understated. … Discourtesy can undermine the reputation and standing of the legal profession in our community, and the efficient function of the legal system itself.[62]
Many other authorities make the same point, with the same emphases on protecting public confidence in the administration of justice.[63]
[60]See generally New South Wales Bar Association v Cummins (2011) 52 NSWLR 279, 284 [19]–[20] (Spigelman CJ, Mason P and Handley JA agreeing).
[61]Ziems v Prothonotory of the Supreme Court of New South Wales (1957) 97 CLR 279, 298 (Kitto J).
[62][2013] WASC 124 (12 April 2013) [28]–[29] (‘in de Braekt’).
[63]See, eg, Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662, 667 (Kirby ACJ); Butts v The State, 546 SE 2d 472, 486 (2001) (Benham CJ, Supreme Court of Georgia).
The UN Basic Principles on the Role of Lawyers recognise that lawyers are entitled to freedom of expression, both personally and professionally (see above). But they also recognise that ‘[l]awyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice’.[64] Further:
Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.[65]
[64]Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba from 27 August to 7 September 1990, Principle 12.
[65]Ibid Principle 14.
There is an extensive body of case law in the European Court of Human Rights on the status and regulation of lawyers. The following passage from the recent judgment of Morice v France summarises the balance that is achieved:[66]
[66](2016) 62 EHRR 1, 38 [132]–[134].
132The specific status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. They therefore play a key role in ensuring that the courts, whose mission is fundamental in a state based on the rule of law, enjoy public confidence.[67] However, for members of the public to have confidence in the administration of justice they must have confidence in the ability of the legal profession to provide effective representation.[68]
133That special role of lawyers, as independent professionals, in the administration of justice entails a number of duties, particularly with regard to their conduct.[69] Whilst they are subject to restrictions on their professional conduct, which must be discreet, honest and dignified, they also enjoy exclusive rights and privileges that may vary from one jurisdiction to another — among them, usually, a certain latitude regarding arguments used in court.[70]
134Consequently, freedom of expression is applicable also to lawyers. It encompasses not only the substance of the ideas and information expressed but also the form in which they are conveyed.[71] Lawyers are thus entitled, in particular, to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds.[72] Those bounds lie in the usual restrictions on the conduct of members of the Bar,[73] as reflected in the 10 basic principles enumerated by the [Council of Bars and Law Societies of Europe], with their particular reference to ‘dignity’, ‘honour’ and ‘integrity’ and to ‘respect for … the fair administration of justice’.[74]
Again, the emphasis is upon regulation of lawyers’ conduct in the interests of maintaining public confidence in the legal system.
[67]See Schöpfer v Switzerland (2001) 33 EHRR 34, 858 [29]–[30]; Nikula v Finland (2004) 38 EHRR 45, 959 [45]; Amihalachioaie v Moldova (2005) 40 EHRR 35, 839 [27]; Kyprianou v Cyprus (2007) 44 EHRR 27, 605 [173]; André v France (European Court of Human Rights, Application No 18603/03, 24 July 2008) [42]; Mor v France (European Court of Human Rights, Application No 28198/09, 15 December 2011) [42].
[68]See Kyprianou v Cyprus (2007) 44 EHRR 27, 605–6 [175].
[69]See Van der Mussele v Belgium (1984) 6 EHRR 163; Casado Coca v Spain (1994) 18 EHRR 1, 12 [46]; Steur v Netherlands (2004) 39 EHRR 33, 712 [38]; Veraart v Netherlands (2008) 46 EHRR 53, 1338 [51]; Coutant v France (European Court of Human Rights, Application No 17155/03, 24 January 2008).
[70]See Steur v The Netherlands (2004) 39 EHRR 33.
[71]See Foglia v Switzerland (European Court of Human Rights, Application No 35865/04, 13 December 2007) [85].
[72]See Amihalachioaie v Moldova (2005) 40 EHRR 35, 839 [27]–[28]; Foglia v Switzerland (European Court of Human Rights, Application No 35865/04, 13 December 2007) [86]; Mor v France (European Court of Human Rights, Application No 28198/09, 15 December 2011) [43].
[73]See Kyprianou v Cyprus (2007) 44 EHRR 27, 605 [173].
[74]See [58] [of the judgment in Morice].
In Canada, Histed v Law Society of Manitoba[75] extensively analyses the validity of statutory rules of professional conduct against the Canadian Charter of Rights and Freedoms. The appellant had been convicted of professional misconduct for calling a judge a ‘bigot’, which he sought to justify by reference to the right to freedom of expression in s 2(b) of that Charter. Steel JA (Hamilton and Joyal JJA agreeing) relied on well-accepted purposes of the rules to hold that they represented a valid and proportionate limitation of the appellant’s right, having regard to their objectives:
[75][2007] MBCA 150 (17 December 2017) (Court of Appeal of Manitoba).
There have been a number of cases which have confirmed the importance of the objectives being considered here. Those cases have confirmed that the legislation and codes of professional conduct are directed towards two important objectives: namely, the protection of the administration of justice and the protection of the public. Those objectives have been found to be sufficiently pressing to warrant infringing freedom of expression.[76]
[76]Ibid [60].
Having regard to these objectives, the general proposition is not now doubted in Canada that codes of ethics applying to lawyers are valid under the Charter. Debate has moved forward to assessing how such codes are to be applied and interpreted consistently with the Charter. On that subject, Abella J (for the whole court) made important observations in Doré:
in dealing with the appropriate boundaries of civility, the severity of the conduct must be interpreted in light of the expressive rights guaranteed by the Charter …[77]
Her Honour went on:
We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession.[78]
[77][2012] 1 SCR 395, 428 [63].
[78]Ibid 429 [66].
As we have seen, it was decided in Lander that it was not inconsistent with the right to freedom of expression in s 16 (and the right to equality before the law in s 8) of the ACT Human Rights Act to place proportionate limits on lawyers’ professional behaviour.[79]
[79](2009) 231 FLR 399, 419 [38] (Higgins CJ, Gray and Refshauge JJ).
It was acknowledged in the detailed submissions of the Attorney-General, which were generally supported by the other parties, that not all restrictions on lawyers’ conduct will be consistent with freedom of expression and other human rights. Those submissions pointed to cases in which the degree of regulation went too far or the rules were administered for improper purposes.[80] International sources draw attention to similar instances.[81] There is no suggestion that this has happened here.
[80]See, eg, Steur v The Netherlands (European Court of Human Rights, Application No 39657/98, 28 October 2003) [45].
[81]See Report of Special Rapporteur on the Independence of Judges and Lawyers, 71st sess, Agenda item 69(b), UN Doc A/71/348 (22 August 2016) [57] (Mónica Pinto); American Bar Association Center for Human Rights, Summary of International Standards Concerning Attorney Disbarment, [11]–[15].
Section 15(3)(a)–(b) of the Charter provides that the right to freedom of expression may be subject to lawful restrictions that are reasonably necessary to respect the rights and reputation of other persons and for the protection of national security, public order, public health or public morality. ‘Lawful’ restrictions are those found in laws of general application that have certain minimum characteristics.[82] Restrictions are ‘reasonably necessary’ when they conform to the requirements of proportionality.[83] The ‘rights’ of others include the rights of human beings conferred by the Charter but extend beyond those to rights more generally conceived held by individuals personally or as members of a group and by corporations.[84] ‘Public order’ is a general expression which describes laws ‘giving effect to rights or obligations that facilitate the proper functioning of the rule of law’ and ‘measures for peace and good order, public safety and prevention of disorder and crime’,[85] and ‘the sum of rules which ensure the functioning of society or the set of fundamental principles on which a society is founded’.[86] Application of s 15(3) is objective but may be informed by the impact of the restriction in the individual case.[87]
[82]Kracke (2009) 29 VAR 1, 44–51 [162]–[197] (Bell J); Human Rights Committee, General Comment No 34: Article 19 (Freedoms of Opinion and Expression), 102nd sess, UN Doc CCPR/C/GC/34 (12 September 2011) [21]–[27]; The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 41st sess, Provisional agenda item 18, UN Doc E/CN.4/1985/4 (28 September 1984) Annex [15]–[18].
[83]Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Lawbook Co, 2008) 125 [1770]; Human Rights Committee, General Comment No 34: Article 19 (Freedoms of Opinion and Expression), 102nd sess, UN Doc CCPR/C/GC/34 (12 September 2011) [33]–[35]; Noone v Operation Smile (Aust) Inc (2012) 38 VR 569, 613–14 [156]–[157] (Nettle JA) (‘Noone’).
[84]Magee (2012) 39 VR 50, 73 [117] (Kyrou J); Noone (2012) 38 VR 569, 613 [154] (Nettle JA); Human Rights Committee, General Comment No 34: Article 19 (Freedoms of Opinion and Expression), 102nd sess, UN Doc CCPR/C/GC/34 (12 September 2011) [28].
[85]Magee (2012) 39 VR 50, 79 [151] (Kyrou J).
[86]Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Lawbook Co, 2008) 126 [1830], citing The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 41st sess, Provisional agenda item 18, UN Doc E/CN.4/1985/4 (28 September 1984) Annex [22].
[87]Magee (2012) 39 VR 50, 71 [106]–[107] (Kyrou J).
The Attorney-General, supported by the other parties, submitted that, so applying s 15(3), and also under s 7(2), of the Charter, r 21 of the Professional Conduct and Practice Rules was compatible with human rights when applied and interpreted in the light of its fundamental purpose, which is to maintain the integrity and reputation of the legal profession and thereby public confidence in the administration of justice. I accept this general submission, which is consistent with Lander and the authorities from other comparable human rights jurisdictions to which I have referred. In that light, I turn now to examine the proper interpretation of the rule in more detail.
Interpretation of rule 21 of Professional Conduct and Practice Rules
Rule 21 requires practitioners to take reasonable care to maintain the integrity and reputation of the legal profession by ensuring that their communications with other practitioners are courteous and that they also avoid offensive or provocative language or conduct. The Rules contain a statement of principle that practitioners should act with honesty, fairness and courtesy and in a manner that is consistent with the public interest.
The nature of this obligation was generally described by G E Dal Pont as follows:
Lawyers should maintain professionalism in all communications. They should, for instance, not use insulting, provocative or annoying language, or acrimonious or offensive correspondence; this is unbecoming, discourteous and may merit professional sanction.[88]
[88]G E Dal Pont, Lawyers’ Professional Responsibility (Lawbook Co, 6th ed, 2017) 722 [21.220] (footnote omitted).
On the other hand, Dal Pont wrote:
[I]t cannot be said, without qualification, that lawyers must always refrain from communications, which may otherwise be justified in the tone and language, merely because the recipient may find those discourteous, provocative or even offensive.[89]
As the author implies and decisions of high authority emphasise (see below), a balance has to be struck.
[89]Ibid (footnote omitted).
In the application and interpretation of r 21, the balance is struck by having proper regard to the purpose of the rule, which is to maintain the integrity and reputation of the legal profession and hence public confidence in the administration of justice, not to ensure civility in relations between legal practitioners as an end in itself. As a matter of etiquette in the general community, courtesy has intrinsic personal and instrumental social value. As a matter of regulating the legal profession, it is the instrumental value of courtesy that is the focus. Therefore the rule only prohibits discourteous, offensive or insulting language or conduct that represents a failure to take reasonable care of the reputation or integrity of the legal profession. So interpreting and applying the rule is consistent with respecting the right of lawyers to freedom of expression in s 15(2) of the Charter.
When discussing an analogous rule in Clyne,[90] Dixon CJ, McTienan, Fullagar, Menzies and Windeyer JJ stressed the competing principles of freedom of expression and responsible exercise of that freedom (see above). In Law Society of New South Wales re Constantine Karageorge,[91] a solicitor made gratuitously abusive and offensive remarks to other solicitors, calling one a ‘fucking Arab’ and another a ‘fucking Jew’. The breach was held to be clearly established. As Higgins CJ, Gray and Refshaouge JJ later pointed out in Lander, the solicitor’s remarks in Karageorge ‘were extraneous to the matters legitimately being pursued’.[92] Their Honours went on to emphasis the duty of a lawyer to represent the client fearlessly when necessary (see below).[93] The case of in de Braekt[94] was similarly clear. The solicitor misled and was discourteous towards a magistrate, wrote discourteous, offensive and threatening email messages to police and racially abused a court officer. Martin CJ, McKechnie and Hall JJ disbarred her.[95]
[90](1960) 104 CLR 186, 200–1.
[91](Unreported, Solicitors’ Statutory Committee (NSW), 15 July 1987) (‘Karageorge’).
[92](2009) 231 FLR 339, 418 [35].
[93]Ibid 419 [36].
[94][2013] WASC 124 (12 April 2013).
[95]Ibid [36].
Lander is especially important because Higgins CJ, Gray and Refshauge JJ took human rights into account, and the tribunal and Zammit J relied upon their Honours’ judgment. It was not an inter-lawyer communication case. The solicitor wrote to the head of a government department, not another lawyer. But he alleged dishonest communications, malpractice and maladministration, among other things, and was assessed against the ACT courtesy rule (which is identical to ours). The tribunal found that the solicitor’s letter was ‘objectively discourteous’, without going into whether there was a basis for the allegations.[96] Interpreting the rule consistently with the right to freedom of expression in s 16 of the Human Rights Act, their Honours made three points of present significance.
[96](2009) 231 FLR 399, 419 [39]–[40] (Higgins CJ, Gray and Refshauge JJ).
First, it is
the duty, of a solicitor to represent his or her client’s interests forthrightly and without fear or favour. If the conduct of public officials adversely impacting on a client is considered on reasonable grounds to be ‘rude, unhelpful’ or any similar characterisation, it is no breach of the obligation of courtesy to point that out to those in authority, even though those criticised, may considerer the criticism unwarranted and offensive. Such communications may well be regarded as discourteous and provocative but, nevertheless, a subject that needs to be raised in the interests of the client as well as generally.[97]
A solicitor’s duty may thus extend to making allegations that may outrage or offend:
The essence of the respondent’s contention, which must be rejected, is that there is a general obligation on a solicitor to refrain from that which the recipient may find to be discourteous, offensive or provocative statements. That is too broad and sweeping a proposition.[98]
[97]Ibid 419 [36].
[98]Ibid 420 [52].
Secondly, the human right to freedom of expression (and equality before the law) in the Human Rights Act does not prevent due regulation of legal practitioners:
We accept that it is not inconsistent with those rights to place limits on professional behaviour, provided, such limits are compatible with a solicitor’s duty to his or her client, to the Courts and the public and can be justified in a free and democratic society.[99]
I have reached the same conclusion in relation to the Charter (see above).
[99]Ibid 419 [38].
Thirdly, the purpose of the courtesy rule is not to ensure that practitioners conform to an ideal norm of effective advocacy:
It may well be the case that the choice of confrontation rather than persuasion was not effective advocacy on the part of the solicitor. That is not for us to say. What is important is that it is not unsatisfactory professional conduct to choose a less effective option in representing a client to one which others might choose.[100]
[100]Ibid 420 [54].
Individual lawyers provide legal representation to clients, not robots. Competence and professionalism are insisted upon but uniformity is not. Nor should it be, for lawyers bring individual and diverse capabilities and expressive styles to the profession, which is the much stronger for it. Lawyers come in all shapes and sizes and from all kinds of backgrounds. They work in firms that are big, middling and small, operate in the city, suburbs and country and vary greatly in client base and resources. None has a claim to professional perfection but all, to be lawyers, must demonstrate actual professional competence, and in many varied situations. The responsibility upon lawyers, which is individual and personal, draws upon the deepest convictions, and requires moderation of the common failings, inherited by humanity. Subject always to the rules of professional conduct, the mode, manner and style of legal representation is a matter for professional judgment by the individual lawyer in the particular facts and circumstances. In relation to the civility of inter-lawyer communications, the purpose of the rules of professional conduct is to proscribe the worst of what is possible without discouraging the best of what is expected of lawyers, as people and members of the profession. Respect for their freedom of expression, and its justifiable limits, are central to that balance.
Applying these principles to uphold the appeal, Higgins CJ, Gray and Refshauge JJ overturned the finding of the tribunal because it had failed to determine whether the solicitor’s allegations were false and without foundation to his knowledge.[101] In the present case, the tribunal found Mr McDonald guilty of a breach after accepting, but not taking into account, that he honestly believed that he had that foundation. Lander therefore assists Mr McDonald.
[101]Ibid 421 [58].
A solicitor who honestly believes that another practitioner has dishonestly misled him or her is likely to be concerned that the other practitioner has breached the professional rules, which clearly proscribe such conduct. As Spigelman CJ (Mason P and Handley JA agreeing) succinctly stated in New South Wales Bar Association v Cummins, ‘[f]ellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues’.[102] McClure P, Murphy and Mazza JJA stated more fully in Gandini v Legal Profession Complaints Committee:
Integrity and honesty are essential characteristics expected of a practitioner, and accordingly the court has generally taken a very serious approach when dealing with dishonesty by a practitioner.[103] In Vogt v Legal Practitioner’s Complaints Committee,[104] where the practitioner was suspended for three months for misleading the court, the court said that for a practitioner in the course of his or her practice, intentionally to mislead anyone is a ‘serious breach’ of the practitioner’s professional duty.[105]
In making the allegations that he did, Mr McDonald was implicitly appealing to this principle, as expressed in r 30.1.1 of the Professional Conduct and Practice Rules, and its heading (see above). Of course Lander & Rogers strenuously denied the allegations and the solicitor concerned is not here on trial. He was rightly exonerated by VCAT. But, after hearing the evidence, VCAT found that Mr McDonald had an honest belief that the solicitor had lied to him, which engaged this principle. Unfortunately it did not follow through the consequences of this finding.
[102](2001) 52 NSWLR 279, 284 [20].
[103]In de Braekt [2013] WASC 124 (12 April 2013) [26] (Martin CJ, McKechnie and Hall JJ); Legal Profession Complaints Committee v Leask [2011] WASC 310 (15 November 2011) [57] (Martin CJ, Em Heenan and Jenkins JJ); The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 (19 June 2007) [58] (Mason P, Santow and Basten JJA).
[104][2009] WASCA 202 (17 November 2009) [61] (Owen, Wheeler and Newnes JJA).
[105]Gandini v Legal Profession Complaints Committee [2013] WASCA 168 (S) (19 November 2013) [36] (McLure P, Murphy and Mazza JJA).
The decision in Lander was extensively analysed by Zammit J in the first appeal in McDonald (VSC).[106] As her Honour held, the Full Court in Lander drew a line between fearless and robust advocacy on the one hand and gratuitously offensive and provocative language on the other. Her Honour considered that, in drawing that line, Higgins CJ, Gray and Refshauge JJ had applied a ‘dichotomous test’, which she described as follows:
[106][2015] VSC 237 (2 June 2015).
any comment extraneous to the legitimate pursuit of a matter would be assessed against [the rule], and any comment made in the client’s interests would be assessed on whether there was a ‘reasonable basis’ for the allegation.[107]
As conceived by her Honour, this approach appears to require that r 21 be applied by reference to whether the communication was extraneous to the legitimate pursuit of the client’s interests and, only if not so extraneous, whether there was a reasonable basis for the communication. Thus, in anther passage in the judgment, her Honour said (putting the issues in the positive rather than the negative):
the first question that must be addressed is whether the comments were made in the legitimate pursuit of the client’s matter. If not, then r 21 is applied to determine whether the practitioner is guilty of the charges. If so, then the ‘reasonable basis’ test must be applied to determine whether the practitioner is guilty of the charges.[108]
[107]Ibid [26].
[108]Ibid [34].
With respect, Higgins CJ, Gray and Refshauge JJ in Lander did not employ the language of a ‘dichotomous test’ and I think it is clear that their Honours did not implicitly adopt such a test. Like r 21 of the Victorian Rules, r 25 of the ACT Rules imposes an obligation to take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that communications are courteous and that offensive or provocative language or conduct is avoided. As I read the judgment of Higgins CJ, Gray and Refshauge JJ, their Honours applied the terms of r 25 of the ACT Rules taking into account as important considerations and not as a judicial substitute for those terms whether (among other things) the communication was made in the legitimate pursuit of the client’s interests and whether the communication was soundly based. Their Honours’ analysis is contextual and undifferentiated, treats the issues raised by the application of the rule in a given case as inter-related and does not require those issues to be examined in any particular order. I would adopt this interpretation in relation to r 21 of our Rules because it is faithful to the text, adherence to which is required by the applicable principles of interpretation,[109] and consistent with the human right to freedom of expression which application of the rule engages (s 32(1) of the Charter).
[109]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ).
When applying r 21 of our Rules, I respectfully agree with the emphasis in the judgment of Zammit J in McDonald (VSC), following that of Higgins CJ, Gray and Refshauge JJ in Lander, on the importance of respecting the professional judgments made by individual legal practitioners when acting on behalf of clients. In the exercise of that judgment, legal practitioners sometimes have to make allegations about other practitioners. As her Honour said:
To argue that assertions about another practitioner’s conduct can never be made in the legitimate pursuit of a client’s matter is to ignore the very real impact that another practitioner can have on one’s client. Examples include the (rather common) allegation that solicitors are intentionally driving up the cost of litigation in order to price a plaintiff out of pursuing their matter in court. So long as there is a reasonable basis for making such an allegation, it cannot be misconduct for a solicitor to do so, even if it is done ‘robustly’ or using ‘such strong terms as seem to him in his discretion to be appropriate to the occasion’, and even if it causes offence.[110]
[110]McDonald (VSC) [2015] VSC 237 (2 June 2015) [48].
I do not take Zammit J to have decided in McDonald (VSC) that, when determining whether a practitioner has acted in legitimate pursuit of the client’s interests, it is not relevant to take into account whether the practitioner had a reasonable basis for allegations made. Under r 21, when they arise, these issues are inter-related. Since the purpose of this rule is maintaining the integrity and reputation of the legal profession in the public interest, determining whether the practitioner has engaged in discourteous communications or avoidably offensive or provocative language or conduct must take into account whether the practitioner had a reasonable basis for allegations made, in relation to which the importance of respecting professional independence and fearless advocacy, as well as the personal exercise of professional judgment, are important considerations. Her Honour did not decide otherwise.
On the proper interpretation of r 21, the focus must be upon whether the alleged discourteous communication or avoidably offensive or provocative language or conduct represents a failure to take reasonable care to maintain the integrity and reputation of the legal profession. In the interests of properly balancing freedom of expression and the professional responsibilities of practitioners, the rule limits the former in favour of the latter only for that purpose and to that extent. This focus is central to maintaining a proportionate relationship between the two spheres of value and interest. Whether the lawyer’s communication or conduct was in the course of legitimately pursuing the client’s interests, and whether there was a reasonable basis for or an honest belief in the truth of allegations made, are relevant (and inter-related) considerations, but not the actual test.
The conclusion of Zammit J in the first appeal was that the tribunal had failed to consider whether Mr McDonald’s communications ‘were extraneous to the legitimate pursuit of his client’s matter’.[111] Her Honour based this conclusion on the primary ground that the tribunal had failed to consider whether Mr McDonald’s communications constituted ‘merely ineffective advocacy’ falling within a legal practitioner’s professional judgment, rather than something extraneous to that purpose.[112] As sought on behalf of Mr McDonald, she remitted the proceeding back to the same senior member for reconsideration. Having regard to the adverse findings of fact made by VCAT in relation to Mr McDonald’s conduct in the first decision, an order could have been sought remitting the matter back to a different member of the tribunal.
[111]Ibid [40].
[112]Ibid [37].
I now turn to whether, in making the second decision, VCAT erred in law in applying and interpreting r 21 of the Professional Conduct and Practice Rules, having regard to the principles that I have sought to explain.
VCAT’s application and interpretation of r 21 of the Professional Conduct and Practice Rules
After receiving written submissions from the parties and conducting a further oral hearing, the tribunal decided to remake the same orders. In doing so, the senior member explained the task to be performed in the remitted proceeding as follows (including footnote):
20First, to determine whether the letters[113] were written by Mr McDonald in the legitimate pursuit of his client’s matter. If not, then Rule 21 is to be applied to determine whether Mr McDonald is guilty of the charges. Notwithstanding that there is some overlap between the matters to be considered in relation to these two questions, it is important to deal with them as two separate steps.
21If the letters were written in the legitimate pursuit of the client’s matter, the Tribunal then needs to consider whether there was a ‘reasonable basis’ for the allegations made by Mr McDonald in the two letters.
[113]In this decision, references to the ‘two letters’ or ‘the letters’ are, unless the context indicates to the contrary, references to those parts of the letters which are the subject of the charges, namely, the second paragraph of the 30 August 2011 letter, and the whole of the 2 September 2011 letter, save for the first 17 words, and the third sub-paragraph.
This explanation reflected the tribunal’s understanding of the principles discussed by Zammit J in McDonald (VSC). As so explained, the ‘reasonable basis’ issue only arose if the ‘legitimate basis’ issue was determined in favour of Mr McDonald. While the senior member referred to the existence of some overlap between the two questions, there is little (if any) discussion of the overlap in the reasons for decision. The tribunal elsewhere said that, in accordance with the principles explained by Zammit J, it was necessary for the tribunal ‘to consider whether Mr McDonald, in writing the two letters in question, was making “an ineffective but legitimate attempt to advance his client’s matter”’.
The orders were remade upon the sole basis that Mr McDonald had not written the letters in the legitimate pursuit of his client’s interests. In making that finding, the senior member adopted the following findings from the first decision (including footnote and italics):
[51]In the circumstances, it should have been apparent to Mr McDonald when he received a letter of Thursday 25 August 2011, that no purpose would be served by continuing to make the emphatic assertion Mr Catanese was lying, in circumstances where Mr McDonald was aware that he had no conclusive proof of this. It was always going to be his word against Mr Catanese’s.
[52]Second, as a result of the telephone conversation with Mr Proietto the next day, Mr McDonald had also become aware that it was possible to seek to negotiate with Lander & Rogers on behalf of his client. So no interest of his client’s would be served by continuing to argue what had now become a moot point.
[53]Third, 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, especially considering he did not take notes of the actual words spoken.
[54]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.
[55]I disagree. In my view, even accepting that Mr McDonald’s earnest belief in his own version of the phone conversation, his reaction was so extravagant as to breach Rule 21.
[56]I reject his contention that he was the subject of a uniquely aggressive attack, quite unlike anything which would take place from time to time in conducting practice as a plaintiff law firm, which required the response he gave.
[57]Looking at the correspondence and sequence of events overall, it is apparent Mr McDonald over-reacted. The two firms of solicitors were obviously involved in a robust exchange of assertions, designed to further the strategic interests of their respective clients. In all the circumstances, I do not regard the content of the letters from Lander & Rogers of 24 and 25 August as being as unjustified or outrageous, as Mr McDonald contended. The references to misrepresentation of the matters discussed in the telephone conversation and the 24 August 2011 letter from Mr McDonald being likely to mislead a Court or Tribunal if produced at a later date, were not an unreasonable statement of their position. These were expressed in contingent terms, not as absolutes. Similarly, the word ‘vexatious’ in the 24 August 2011 letter from Lander & Rogers was softened by the word ‘potentially’. Also, at this stage it was merely suggested, rather than demanded, that Mr McDonald withdraw his letter of 24 August 2011.
[58]Lander & Rogers’ response indicates its perception that it was responding to an unparticularised ambit claim. It was also nervous of what the implications might be of the reference which Mr McDonald had made to duties under the Civil Procedure Act 2010. Mr Catanese said that Mr McDonald had commenced the telephone conversation on 24 August 2011 by saying that he was calling in respect of the Civil Procedure Act. Mr Catanese said he had never before or since had a telephone conversation which commenced in that unusual way. Practitioners are subject to an overarching obligation to use reasonable endeavours to resolve civil disputes.[114] More onerous duties were imposed on solicitors under this legislation as originally enacted, but it was agreed at the hearing that these had been revoked by the newly elected Government prior to August 2011.
[114]Civil Procedure Act2010 (Vic) s 22.
[59]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.
[60]Mr McDonald said the fact that this offer was made demonstrated that he had been ‘set up’. He said the offer was made in order to prove him wrong in his assertion that Mr Catanese had stated that there would be no negotiations.
[61]This explanation seems unlikely. It was not specifically put to Mr Catanese. It assumes that the reason Lander & Rogers responded with a very low offer was to protect its solicitor, and that Landers subjugated its client’s interests to protect its solicitor. This is a serious suggestion to make.
[62]The more likely scenario, which is consistent with the correspondence, is that the $500 offer was a response to what was perceived to be a claim not supported at that stage by any particulars which could justify an offer of any real substance.
[63]In any event, even if he was provoked, Mr McDonald’s letter of 30 August 2011 constituted an unnecessarily offensive and personal attack on Mr Catanese. Even on the basis that Mr McDonald firmly believed Mr Catanese had made the statement attributed to him by Mr McDonald, to write a letter stating that a solicitor he had never dealt with before was ‘fundamentally dishonest’ and had started off ‘at an early stage of his career telling lies’ arising out of a conversation the content of which was he had known for five days was contested, and which objectively, he knew could not be proved, was discourteous, offensive and provocative. The letter of 30 August 2011 purports to make a damning judgment about the character of a solicitor, with whom Mr McDonald has had only minimal contact.
[64]Mr McDonald complained that after he sent the 30 August 2011 letter, Lander & Rogers then responded over-aggressively to him. In his evidence, referring to Lander & Rogers’ response after that, Mr McDonald said in his evidence ‘all hell broke out’. However, it was Mr McDonald who had inflamed the situation by sending his intemperate letter of 30 August 2011.
[65]Mr McDonald compounded the matter further by repeating and expanding his allegations that Mr Catanese had engaged in deliberate and calculated dishonesty in his letter of 2 September 2011.
[66]I certainly do not accept Mr McDonald’s suggestions that his two letters were a ‘measured and temperate’ response and that he was seeking not to escalate the situation.
[67]Mr McDonald’s submissions relating to Lander & Rogers’ conduct somehow being an attempt to protect its stream of Government law work, and the sending of a fax so that Mr McDonald’s office staff could see it are no more than speculative allegations without any evidence to support them.
[68]The reference to the pro bono work done by Mr McDonald is not relevant. The fact that Mr Catanese has not brought defamation proceedings against Mr McDonald is also irrelevant. Disciplinary proceedings under the Act are brought by the LSC for the purpose of protecting the public and the reputation of the legal profession. It is trite that any civil remedies which parties might have are quite separate to disciplinary proceedings, which can only be brought by the LSC.
[69]I also reject Mr McDonald’s assertions which sought to paint himself as the battling underdog, being bullied by the big firms, as a justification for his intemperate response.
As a foundation for its finding in the second decision that Mr McDonald had breached r 21, VCAT also adopted the following passage from its first decision
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.
The reasons for the second decision acknowledge Mr McDonald’s concerns about the potential application of the Civil Procedure Act (and by inference the Fair Work Act) to his negotiations with Lander & Rogers (see above) but nonetheless found that the letters to Lander & Rogers dated 30 August 2011 and 2 September 2011 were not written in legitimate pursuit of his client’s interests.
The senior member’s findings in this regard were based upon a detailed analysis of the interaction between Mr McDonald and Lander & Rogers, day-by-day and communication-by-communication. As expressed in the second reasons for decision, his conclusion was that, even accepting that Mr McDonald honestly believed that Mr Catanese had lied to him, the letters were written in anger (the passage includes the original italics and footnote):
48One can understand this would make a practitioner such as Mr McDonald angry. One can also understand that if he perceived that by its subsequent actions, the opposing firm was covering up for the lie of its solicitor, that would also make him angry.
49But the question is whether Mr McDonald was acting in the legitimate pursuit of his client’s interests at the time he wrote the letters.
50The following evidence given by Mr McDonald is relevant to this question. He said that the 30 September 2011 letter was for the purpose of ‘defend[ing] my client and myself’, and that it ‘was an issue between him and myself, it was not an issue between my client and the other party. The offer may have been between the parties, but my issue was how I’d been treated by Mr Catanese’. This is significant. It supports the conclusion that the allegations in question, made in the circumstances and at the times they were, related to Mr McDonald’s personal position, vis a vis Mr Catanese, rather than his client’s.[115]
In this court in the second appeal, the Commissioner laid particular stress upon these findings, which, in his submission, were open.
[115]Transcript, page 169, lines 2–4. This evidence was given in response to a question which referred to the 30 August 2011 letter, but in its context, it logically applies to both letters.
Accepting the importance of a lawyer’s right to speak robustly on behalf of a client, VCAT decided that, in making the statements without Mr Catanese in the two letters, Mr McDonald had abused this right:
56The privilege associated with the right of free speech and the duty to speak out on behalf of a client should not be narrowly confined, lest the right be undermined. The question in this case should be approached on the basis that the privilege applies if some discernible purpose on behalf of the client is being sought to be pursued, even if in a less than optimally effective manner. However, the above analysis of the factors relevant to the question of whether in making the allegations the subject of the charges of unsatisfactory professional conduct, Mr McDonald was acting in the legitimate pursuit of his client’s matter, does not support his contention that he was.
57.In my view, the situation here is relevantly akin to the ‘dirty rotten crook’ example given by Zammit J. In the circumstances of this case, at the time the comments in the second paragraph of the letter of 30 August 2011 were made, they constituted an abuse of the privilege Mr McDonald enjoys as a solicitor. As such they did not merely comprise ‘ineffective advocacy’ in the course of pursing his client’s case. At the time they were written, they served no purpose other than disparaging Mr Catanese. His comments comprised statements relating to Mr Catanese’s character and his career. As such, they were sufficiently extraneous to fall outside the scope of the privilege.
It concluded by finding that, upon an
analysis under the first limb of the test in Lander … the allegations made by Mr McDonald in the two letters the subject of the charges were not made in the legitimate pursuit of his client’s matter.
As can be seen, the senior member carefully considered the factual issues in the case and his reasons are detailed and cogent. However, the analysis is driven by an exclusive focus upon whether Mr McDonald acted in the legitimate pursuit of his client’s interests (the ‘first limb’), to the exclusion of whether he had a reasonable basis for the allegations made. Moreover, the terms of r 21, which emphasise the centrality of taking reasonable care to maintain the integrity and reputation of the legal profession, were mentioned but not properly engaged. The analysis is directed toward answering the question whether, as a matter of courtesy as such and evaluated in hindsight, Mr McDonald should not have made the allegations that he did, rather than whether, as a matter of professional judgment in the particular circumstances, he failed to take reasonable care to maintain the integrity and reputation of the legal profession. The focus upon courtesy (and offensive or provocative language or conduct) as such is reflected in the order recording VCAT’s final determination:
The respondent is found guilty of two charges of unsatisfactory professional conduct by sending two letters to another practitioner in terms which breached Rule 21 of the Professional Conduct and Practice Rules 2005, in that he failed to ensure his communications with another practitioner were courteous and failed to avoid offensive or provocative language or conduct.
The integrity and reputation of the legal profession was not referenced.
Mr McDonald’s honest belief that Mr Catanese had lied to him necessarily supplied an arguably reasonable basis for his actions. This belief had to inform VCAT’s assessment of whether he was acting in legitimate pursuit of his client’s interests. Legitimate pursuit of Mr McDonald’s client’s interests, which was his duty, was necessarily connected with whether he had a reasonable basis for making the allegations against Mr Catanese, which informed the exercise of that duty. In terms of r 21, whether he failed to take reasonable care to maintain the integrity and reputation of the legal profession depended upon consideration of the professional judgment that he made in the particular circumstances, including that belief. His concerns in relation to the application of the Civil Procedure Act and the Fair Work Act were also necessary context.
Two frames of reference competed for VCAT’s attention in this case. One was the Commissioner’s, pursuant to which Mr McDonald was discourteous whatever he believed, because he was not acting in pursuit of his client’s interests. The other was Mr McDonald’s, pursuant to which he made a professional judgment in his client’s interests about how to respond to a solicitor who (he honestly believed) had lied to him, as to which there was not much scope for nicety. On the found facts and inferences necessarily arising therefrom, Mr McDonald’s frame of reference was consistent with the proper interpretation and application of r 21 of the Professional Conduct and Practice Rules. The Commissioner’s, which VCAT adopted, was not.
As I have said, VCAT focussed disproportionately upon courtesy as such rather than upon the professional judgment that Mr McDonald had to make in the negotiations. One consequence was that the significance of the settlement offer of $500 made on 29 August 2011 was misunderstood. The senior member found that it was gratuitous for Mr McDonald to have written the letter on 30 August containing the allegation that Mr Catanese had lied about whether there would be a settlement offer: Lander & Rogers had told him in the telephone conversation on 26 August that the employer might make an offer and on 29 August an offer of $500 was actually made. However, this was a very low offer indeed. The focus of VCAT’s examination should therefore have been on whether it was open to Mr McDonald to believe that it was not genuine. In the facts and circumstances, I think it was bound to find that it was so open to him. Therefore, in relation to the offer, the position had to be that Mr McDonald held two relevant honest beliefs: that Mr Catanese had lied to him, and that the offer was not genuine. So understood, it is easy to see how, from Mr McDonald’s point of view, the offer would have reactivated his initial concerns about the (alleged) lie and undone the fragile peace that was apparently done on 26 August 2011. In his mind, the non-genuine offer in effect repeated the denied refusal to negotiate. VCAT had to give consideration to the allegations in Mr McDonald’s letter of 30 August in that light but it did not do so.
Lander & Rogers’ same-day response to Mr McDonald’s letter of 30 August 2011 was to threaten him personally with referral to the Commissioner unless the allegations against Mr Catanese were withdrawn. Mr McDonald’s letter of response of 2 September repeated the allegations, with added explanation. When assessing his actions from the perspective of maintaining the integrity and reputation of the legal profession and not simply courtesy as such, a critical consideration, not considered by VCAT, is that Lander & Rogers chose to make the threat, and Mr McDonald had to respond to the threat, while negotiations in relation to the dispute were still on foot. (As I have pointed out, negotiations continued and the dispute was settled on confidential terms.) Consequently, the application of r 21 had to proceed upon the basis that the relevant facts were all connected with the negotiations — Mr McDonald’s honest belief that Mr Catanese had lied to him; Mr McDonald’s honest belief that the offer of $500 was not genuine; Lander & Rogers’ threat to report Mr McDonald to the Commissioner; and Mr McDonald’s response to that threat repeating and explaining the allegations. In this factual setting, the question arising under r 21 was whether Mr McDonald had failed to take reasonable care to maintain the integrity and reputation of the legal profession by acting in the way that he did, allowing him due scope for professional judgment about what was in his client’s interests. That is not the evaluation that VCAT undertook.
The Commissioner’s submissions in this court, which were detailed and well developed in oral argument, were at their highest when reference was made to Mr McDonald’s evidence that there came a point when it ‘was an issue between him and myself, it was not an issue between my client and the other party’. VCAT found (see above) that this evidence suggested that Mr McDonald was acting for personal reasons (such as anger) rather than for professional reasons (such as promoting his client’s interests).
The Commissioner’s submissions gain support from remarks made by Paula Baron and Lillian Corbin in a review of Commonwealth and American authorities (italics added):
the cases suggest that disciplinary tribunals across jurisdictions will have a fairly high tolerance for robust communications, including criticisms of other legal actors. They will express concern where lawyers have become so zealous as to compromise their independence, or have acted out of annoyance or feelings that the actions of others have slighted them personally. Even if a lawyer is confronted by a ‘rogue’ lawyer, it is not the role of the lawyer to pursue ‘vigilante justice’ by intemperate remarks or communications that do not promote resolution of the client’s dispute.[116]
I would indorse the italicised remarks, which reflect an interesting decision in a Canadian disciplinary tribunal.[117]
[116]Paula Baron and Lillian Corbin, ‘Robust Communications or Civility — Where Do We Draw the Line?’ (2015) 18(1) Legal Ethics 1, 23.
[117]The Law Society of British Colombia v Laarakker (2011) LSBC 29 (21 September 2011) [45] (Leon Getz QC, Nancy Merrill and Alan Ross, Hearing Panel of Law Society of British Colombia).
However, VCAT’s assessment of Mr McDonald’s evidence in this connection was also undermined by its failure to take into account his reasonable belief that Mr Catanese had lied to him, his reasonable belief that the offer of $500 was not genuine, Lander & Rogers’ threat to report him to the Commissioner and his response to that threat, which were all connected with the negotiations. As Mr McDonald must be taken reasonably to have believed, his personal and professional positions were both implicated by Lander & Rogers’ negotiating ‘tactics’ and he had to make a judgment about how to proceed in his client’s best interests. I think Mr McDonald was deposing, if clumsily, that it was not simply a matter of whether the employer was prepared to negotiate, as evidenced by the $500 offer. Mr McDonald was duty bound to obtain the best outcome for his client in the negotiations. From Mr McDonald’s point of view, which had to be accepted as open on the found facts, in attacking him personally, Lander & Rogers were weakening his client’s negotiating position. As he saw it, this meant that there was not much scope for nicety in responding and he robustly stood up for himself and therefore his client. Whether the course he took was the optimum one in terms of effective advocacy is debatable, but not here in issue. It was one that was open to him in the circumstances.
Conclusion
On the facts found and inferences necessarily arising, VCAT was bound to conclude that Mr McDonald did not fail to take reasonable care of the integrity and reputation of the legal profession by acting with discourtesy because at all times he was acting within the scope of reasonable professional judgment in his client’s interests. The prosecution should therefore have been dismissed, as it will be here. The first ground of appeal is therefore upheld. It is unnecessary to consider the second.
The orders of the court will be that, pursuant to s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act, leave to appeal is granted, the appeal is upheld and, pursuant to s 148(7)(b), the charges of unsatisfactory professional conduct brought by the Commissioner against Mr McDonald are dismissed.
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