Mericka v Rathbone

Case [2016] SASCFC 95

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

MERICKA v RATHBONE

[2016] SASCFC 95

Judgment of The Full Court

(The Honourable Justice Blue, The Honourable Justice Bampton and The Honourable Justice Doyle)

26 August 2016

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - APPEALS

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - NATURE OF PROCEEDINGS

The appellant brought proceedings against the respondent practitioner in the Legal Disciplinary Tribunal alleging unprofessional or unsatisfactory conduct by the respondent. The allegation related to the respondent’s conduct in 2009 in her role as Director of the Legal Practitioners Conduct Board in providing Mr Lieschke with copies of documents from the Board’s file relating to Mr Mericka’s 1997 complaint to the Board about Mr Lieschke. The Tribunal dismissed the charge against the respondent and awarded costs against the appellant. In dismissing the charge, the Tribunal found that the conduct complained of was not conduct in the course of, or in connection with, legal practice; there was a breach of s 73 of the Legal Practitioners Act 1981 (SA) notwithstanding that the information provided to Mr Lieschke was largely not confidential; and the conduct was neither unprofessional or unsatisfactory.

The appellant appealed against the dismissal of the charge and the costs order on a number of overlapping grounds. In effect, the appellant contended that the Tribunal failed to afford procedural fairness and erred in dismissing the charge and ordering the costs.

Held per Doyle J (Blue and Bampton JJ agreeing), dismissing the appeal against dismissal of the charge:

1.       The appellant’s procedural complaints are not made out (at [99]-[137]).

2.       The Tribunal erred in finding that the respondent was not acting in the course of, or in connection with, her practice of the law (at [153]).

3.       The Tribunal correctly found that the respondent’s conduct was neither unsatisfactory nor unprofessional (at [160]).

Held allowing the appeal against the Tribunal's costs order:

4.       The unusual circumstances of the case warrant a departure from the general principle that costs follow the event (at [8]-[21] per Blue J, [23] per Bampton J and [165]-[182] per Doyle J).

Legal Practitioners Act 1981 (SA) s 5, s 21, s 73, s 77B, s 82, s 83, s 85; Supreme Court Rules 2006 (SA) r 263, r 288(1)(b); Supreme Court Act 1935 (SA) s 40, referred to.
Advance Resource Services Pty Ltd  v Charlton (2008) 100 SASR 388; Cornall v Nagle [1995] 2 VR 188, discussed.
Mericka v Employers Mutual Ltd/WorkCover Corporation (Pollard Brothers Pty Ltd) [2011] SAWCT 25; In Re Sanderson; Ex parte The Law Institute of Victoria [1927] VLR 394; Kekatos v The Council of the Law Society of New South Wales [1990] NSWCA 288]; The Council of the Law Society of New South Wales v Seymour [1999] NSWCA 117; Yip v Frolich (2004) 89 SASR 467; Road Chalets Pty…

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Mericka v Rathbone [2016] SASCFC 95
Case
[2016] SASCFC 95
Decision Date

CaseChat Overview and Summary

Mr Mericka appealed to the Full Court of the Supreme Court of South Australia against decisions of the Disciplinary Tribunal. The Tribunal had dismissed a charge of professional misconduct against Ms Rathbone and subsequently awarded costs against Mr Mericka. Ms Rathbone, the Director of the Legal Practitioners Complaints Board, was charged with unprofessional conduct or unsatisfactory professional conduct for providing documents from a closed complaint file to Mr Lieschke, a legal practitioner who had previously been the subject of a complaint by Mr Mericka.

The primary legal issues before the Full Court were whether Ms Rathbone's conduct in providing the documents to Mr Lieschke constituted "conduct in the course of, or in connection with, legal practice" as defined by the Legal Practitioners Act 1981 (SA), and whether her actions breached section 73 of that Act by disclosing confidential information. The Court also considered whether, even if a breach occurred, it amounted to unprofessional or unsatisfactory professional conduct.

The Full Court reasoned that Ms Rathbone's role as Director of the Board was primarily administrative, and her actions in retrieving and forwarding documents from a closed file, even though she held a practising certificate and had regard to legal principles, did not amount to the practice of law as contemplated by the Act. The Tribunal had found that she was performing an administrative task, and the Full Court agreed with this conclusion, noting that the Act's definitions of legal practice did not encompass such administrative functions. Consequently, the Court found that the charge of unprofessional or unsatisfactory professional conduct was not made out.

The Full Court allowed the appeal against the dismissal of the charge against Ms Rathbone, setting aside that decision. It also allowed the appeal against the costs order made by the Tribunal, setting aside that order as well. The matter was remitted to the Tribunal for further consideration of costs.

Orders

Orders of the court

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Background

Background to the litigation

On 25 June 2015, the Tribunal dismissed the charge against Ms Rathbone, and on 16 July 2015 awarded costs against Mr Mericka. Mr Mericka appeals against both decisions.Background Mr Mericka was injured in the course of his employment in 1993. His initial injury was to his lower back but he subsequently suffered various associated physical and psychiatric injuries. He became totally and permanently disabled. Over time Mr Mericka made various claims for compensation under the Workers Rehabilitation and Compensation Act 1986 (SA). Mr Lieschke, then a practitioner with the firm Lieschke & Weatherill, acted for Mr Mericka in his pursuit of those claims from around October 1995. Mr Lieschke represented Mr Mericka in proceedings in the Workers Compensation Tribunal during 1996 and 1997. Those claims were finalised in April 1997 by way of redemption agreement under s 42 of the Workers Rehabilitation and Compensation Act. Later in 1997 Mr Mericka made a complaint to the Board about Mr Lieschke’s conduct, and in particular his claim for certain fees claimed by Lieschke & Weatherill to be outstanding in relation to Mr Mericka’s compensation claim. As a term of the conciliated resolution of that complaint, Mr Mericka paid the outstanding fees ($885.75) and Lieschke & Weatherill delivered its file in Mr Mericka’s matter to Mr Mericka, via the Board. In 2005 Mr Mericka commenced a challenge to the validity of the redemption of his workers compensation claims and entitlements. While acknowledging that he had signed the relevant documents, Mr Mericka sought to impugn the two redemption agreements propounded by the compensating authority (WorkCover Corporation and its claims agent Employers Mutual Limited). Mr Mericka asserted that the agreements were not valid because execution of the documents occurred in circumstances that did not comply with s 42 of the Workers Rehabilitation and Compensation Act in that he had not received the requisite competent professional advice as to the consequences of the redemption, or competent financial advice about the investment or use of the money received. He also contended that his entry into the agreements was the product of undue influence and duress, misleading and deceptive conduct, and unconscionable conduct on the part of the compensating authority. Mr Mericka’s claims were heard in the first instance by Auxiliary Justice Olsson in the Workers Compensation Tribunal. The trial commenced in 2009, with Olsson AJ ultimately delivering his reasons for decision on 5 September 2011. On 20 March 2007, in the course of the interlocutory stages of those proceedings, Mr Mericka’s then solicitor (Mr Elekwachi of FNE Lawyers) wrote to the Deputy Director of the Board (Mr Kolarovich) seeking to inspect “any files the Board might still hold in relation to my client’s said complaint (to the Board against Mr Lieschke) of 1997” and attaching an authority to release information signed by Mr Mericka. Mr Kolarovich responded by letter dated 22 March 2007, in which he wrote:I have retrieved from our archives the complaint file which had been closed in February 1998. I advise that the Board does not permit inspection of its files. However, I have herewith provided copies of necessary documents from that file which Mr Mericka would have had at the conclusion of the matter.

Evidence

Evidence Before The Court

Ms Rathbone relied on her affidavit sworn on 4 June 2013. She also gave oral evidence and was cross-examined by Mr Mericka. Ms Rathbone’s evidence Ms Rathbone’s evidence was that she was admitted as a legal practitioner of the Supreme Court of South Australia in 1985 and worked for some years with the Director of Public Prosecutions. In 1997, she was employed as a solicitor by the Board and in 2007 she was appointed the Director of the Board. She continued in that position until 2014. Ms Rathbone’s evidence was that to her knowledge the position of Director of the Board had always been held by a legal practitioner. Her duties as Director were largely administrative, and pursuant to her contract of employment there was no requirement for her to be a legal practitioner. From time to time she instructed counsel on behalf of the Board, and provided legal advice to the Board. The Act did not require that the Director of the Board be legally qualified, but Ms Rathbone said that as a matter of practice every legal practitioner employed by the Board, including the Director, held a practising certificate. Turning to the subject matter of the charge laid against her, Ms Rathbone recalled receiving a telephone call from Mr Lieschke in 2009 in which he requested copies of documents from the Board’s file relating to a complaint filed by Mr Mericka against him. She had not been involved in the investigation of that earlier complaint, and did not have much knowledge about the Workers Compensation Tribunal proceedings that were on foot at the time. She recalled a general understanding that Mr Lieschke’s request was for documents from the Board’s file that had previously been given to him. Ms Rathbone requested that the Board’s file be retrieved from archives. She considered the file and formed the view that Mr Lieschke was entitled to the documents listed in the 22 June 2009 letter. In so doing, she was informed by her understanding of the Board’s general approach to procedural fairness, and to the provision of documents to practitioners the subject of a complaint. She explained that she understood the practice of the Board was to disclose to practitioners all documents containing the substance of a pending complaint in order to enable them to answer the complaint. The Board’s practice also included providing the practitioner, upon request, with copies (or further copies) of documents which they had previously been given, or which had emanated from the practitioner. Ms Rathbone acknowledged that she knew, when she provided the documents to Mr Lieschke under cover of letter dated 22 June 2009, that the complaint against him had been resolved. However, she believed that the Board’s practice extended to the subsequent provision of documents if a need and request arose – for example, in dealing with a subsequent professional indemnity. Ms Rathbone said that she considered whether it was appropriate to provide the documents listed in the 22 June 2009 letter in light of s 73 of the Legal Practitioners Act. Her understanding of this section (which she believed to be the Board’s approach to that section) reflected the practice just outlined. In particular, if documents were ones that had previously been provided to the practitioner or emanated from the practitioner, then they were not confidential, and hence provision of them to the practitioner did not contravene s 73. Ms Rathbone acknowledged that with the benefit of hindsight it was possible that this construction of s 73 might have been wrong in law, but said that at the relevant time she had accepted and acted upon what she understood to be the Board’s construction of, and practice regarding, s 73.

Decision

Reasons for decision

That section also defined “unsatisfactory” conduct in relation to a legal practitioner as meaning:Conduct in the course of, or in connection with, practice by the legal practitioner that is less serious than unprofessional conduct but involves a failure to meet the standard of conduct observed by competent legal practitioners of good repute.The Tribunal’s decision In its reasons dated 25 June 2015, the Tribunal focused upon the following three contentions advanced on behalf of Ms Rathbone as to why the charges were not made out:1. The conduct complained of was not conduct in the course of, or in connection with, legal practice.2. There was no breach of s 73 of the Legal Practitioners Act because the information provided to Mr Lieschke under cover of the 22 June 2009 letter was not confidential. Rather, it was information that either emanated from him at the time of the complaint against him in 1997, or had been provided to him at that time.3. In any event, even if the conduct complained of was in breach of s 73, it was neither unprofessional nor unsatisfactory. In relation to the first issue, the Tribunal noted that Ms Rathbone held a practising certificate at the relevant time, making her a legal practitioner within the meaning of s 5 of the Legal Practitioners Act. As to whether her conduct in providing the documents to Mr Lieschke occurred in the course of, or in connection with, her practice of the law, the Tribunal observed that the concepts of “practise the profession of the law”, “legal practice” and “practice”, used in the Act were not defined. The Tribunal also noted, however, that s 21 provided some guidance. Section 21(2) provided that a person practised the profession of the law if, in acting for fee or reward on behalf of some other person, he or she prepared one of the various types of documents or instruments listed in the section, or represented any party to proceedings in a court or tribunal. Section 21(4) elaborated upon some of the concepts in s 21(2). Further, s 21(4)(d) provided that an employed legal practitioner who provided legal advice, or legal services of a kind mentioned in s 21(2), for or on behalf of his or her employer or clients of his or her employer, practised the profession of the law. The Tribunal noted Ms Rathbone’s evidence to the effect that her role as Director of the Board was an essentially administrative one, which involved her acting as the chief administrative officer of the Board, and did not involve any requirement under the Legal Practitioners Act that she be a legal practitioner. That said, she did hold a practising certificate and agreed that from time to time she provided legal advice to the Board, handled complaint files and instructed counsel on behalf of the Board. The Tribunal concluded that Ms Rathbone’s impugned conduct did not occur in the course of, or in connection with, her practising the law. The Tribunal explained:The Tribunal is not satisfied that in responding to Mr Lieschke’s request for documents from the Board’s file in relation to the complaint against him by the Complainant, Ms Rathbone was involved in the practice of the profession of the law within the contemplation of s 21 and s 5 (definition of unprofessional and unsatisfactory conduct) of the Act. She appears in the Tribunal’s view to have performed an administrative task when she sent the subject documents notwithstanding that she had regard to ss 73 and 77B and issues of legal professional privilege.

Ratio Decidendi

Legal Principle Established

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