Michael Gullquist v Victorian Legal Services Commissioner
[2018] VSCA 259
•11 October 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0014
| MICHAEL GULLQUIST | Applicant |
| v | |
| VICTORIAN LEGAL SERVICES COMMISSIONER | Respondent |
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| JUDGES: | TATE, BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 September 2018 |
| DATE OF JUDGMENT: | 11 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 259 |
| JUDGMENT APPEALED FROM: | [2017] VSC 763 (John Dixon J) |
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LEGAL PRACTITIONERS – Disciplinary proceedings – Professional misconduct – Professional misconduct constituted by communicating in opponent’s absence with court (magistrate) concerning matter of substance in current proceeding and without promptly telling opponent – Applicant found guilty of professional misconduct at VCAT – Application for leave to appeal to Trial Division refused – Application for leave to appeal Trial Division’s refusal of leave to appeal from VCAT – Application for leave to appeal refused – Legal Profession Act 2004, s 4.4.3(1)(a) – Professional Conduct and Practice Rules 2005, rr 18.5 and 18.6 – Victorian Civil and Administrative Tribunal Act 1998, s 148.
LEGAL PRACTITIONERS – Disciplinary proceedings – Professional misconduct – Concessions made by applicant at VCAT – Points not argued below – Whether applicant should be permitted to resile from concessions or put arguments not put below – Whether communications concerned matter of substance – Whether VCAT findings contradictory – Whether any error of law in VCAT hearing or determination – Whether finding in breach of the Charter of Human Rights and Responsibilities – Whether permissible to charge applicant with ‘course of conduct charge’ – Whether applicant denied procedural fairness – Proposed appeal having no real prospect of success – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person Dr C Holland | Victorian Bar Pro Bono Scheme |
| For the Respondent | Mr P Over | Victorian Legal Services Commissioner |
TATE JA
BEACH JA
McLEISH JA:
On 3 January 2017, the Victorian Civil and Administrative Tribunal (‘VCAT’) found the applicant, Michael Gullquist, guilty of professional misconduct within the meaning of s 4.4.3(1)(a) of the Legal Profession Act 2004 (‘the Act’) in that he had engaged in conduct that involved a substantial failure to reach or maintain a reasonable standard of competence and diligence.[1] The finding related to five letters (‘the letters’) Mr Gullquist sent to the Local Court of New South Wales while proceedings were on foot in that court, including three addressed personally to the magistrate, none of which he copied to his opponent.
[1]Victorian Legal Services Commissioner v Gullquist [2017] VCAT 6 (‘Liability Reasons’).
On 1 March 2017, VCAT ordered Mr Gullquist to be reprimanded under s 4.4.19(k) of the Act.[2] Additional orders were made, including orders under s 4.4.19(c), (d) and (g) requiring Mr Gullquist to undertake ‘an additional five CPD units in ethics and professional responsibilities’ over the following 12 months, and limiting Mr Gullquist’s ability to send correspondence addressed to judicial or quasi-judicial officers without first obtaining the approval of a senior practitioner approved by the respondent (‘the LSC’).
[2]Victorian Legal Services Commissioner v Gullquist [2017] VCAT 819 (‘Disposition Reasons’).
Pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998, Mr Gullquist sought leave to appeal to the Supreme Court against the finding made on 3 January 2017 and the order of 1 March 2017. The application for leave to appeal was heard before John Dixon J on 14 August 2017. On 14 December 2017, his Honour refused Mr Gullquist leave to appeal.[3]
[3]Gullquist v Victorian Legal Services Commissioner [2017] VSC 763 (‘Leave Reasons’).
The applicant now seeks leave to appeal against the order of John Dixon J. His amended application for leave to appeal contains 17 numbered grounds of appeal, some of which comprise more than one discrete ground. For example, ground 8, which is headed ‘Statutory Interpretation’ contains nine paragraphs in which different points are made in relation to four of the five letters.
On the hearing of his application for leave to appeal, Mr Gullquist represented himself, although he announced that Dr Cynthia Holland of counsel appeared with him. While Dr Holland sat at the bar table with Mr Gullquist, the bulk of the argument was advanced by Mr Gullquist. Mr Gullquist told us that Dr Holland was, however, responsible for a written submission that dealt with grounds 5 and 6 relating to the Charter of Human Rights and Responsibilities (‘the Charter’), and which was handed up to us at the commencement of the hearing.
At the commencement of the hearing, Mr Gullquist made application to admit into evidence a letter to him from the Victorian Legal Services Board dated 19 July 2018.[4] It was submitted that this letter was relevant because it showed that VCAT’s determination was having a continuing effect on his right to practise as a solicitor.
[4]In his written application to admit additional evidence, Mr Gullquist sought to have five communications admitted into evidence, but in argument he limited his claim to the one letter to which we have referred.
In our view, the admission of the letter would have no capacity to affect the outcome of any of Mr Gullquist’s proposed grounds of appeal. Moreover, the letter cannot provide a stand-alone basis for granting Mr Gullquist leave to appeal. Pursuant to s 14C of the Supreme Court Act 1986, leave to appeal must be refused unless it can be shown that the appeal has a real prospect of success. If Mr Gullquist could show that his appeal had a real prospect of success, we would grant him leave to appeal without relying upon the further evidence he sought to have admitted.
Having considered all of Mr Gullquist’s arguments advanced in support of his proposed appeal, for the reasons that follow, we have concluded that his appeal has no real prospect of success. Accordingly, leave to appeal must be refused.
Background
At the time he sent the letters, Mr Gullquist acted for the second defendant in a proceeding in the Local Court of New South Wales. Sometime before he sent the first letter, Mr Gullquist issued a notice of motion seeking orders that the proceeding be struck out. The application was to be heard on 20 March 2014. On 18 March 2014, Mr Gullquist sent the first of his five letters (‘the 18 March letter’). The 18 March letter was addressed to the Local Court, and was in the following terms:
Dear Registrar,
RE: Alleasing and Paul Floreani — case 2012/00221794
I enclose Affidavit, for filing in the above matter.
I would be pleased if you could ensure that this document is upon the court file in time for the hearing scheduled at 9:30am Thursday 20 March.
Sincerely,
Michael Gullquist
Corporate Lawyer
The affidavit enclosed with the 18 March letter was sworn by Mr Gullquist. It set out some historical matters, a purported analysis of an affidavit of Mr Gullquist’s opponent, Mr David Simons, and some submissions in support of the orders that were then being sought by Mr Gullquist.
Mr Gullquist’s notice of motion came on for hearing on 20 March 2014. At the conclusion of the hearing, the magistrate adjourned the proceeding for the delivery of judgment on 10 April 2014.
Between the conclusion of the hearing and 10 April 2014, Mr Gullquist sent the second of his five letters (‘the 23 March letter’). The 23 March letter was addressed to the magistrate via the email address for the Chief Magistrate’s Executive Office. The letter was cc’d to the Judicial Commission of New South Wales. The 23 March letter was as follows:
His Honour Mr J Andrews SM
C/O Chief Magistrate’s Executive Office
PO Box A4, Sydney NSW 1235Your Honour,
I appeared on behalf of Mr Paul Floreani upon an application brought by him in this matter, on last Thursday 20th March 2014 — Case No: 2012/00221794.
It concerns me that I should write to your Honour in respect of this matter however, I consider that my own professional reticence to do this, should not stand in the way of my client’s rights. I have still and have always had the utmost respect for our judicial officers at all levels whom, in my respectful view, perform one of the most difficult, important and yet thankless tasks within our community. I sincerely hope that your Honour will treat this communication in the respectful and constructive way, it is intended.
A key tenet of our justice system is, as the old adage goes, that justice must not only be done but must be seen to be done. A subset of justice being seen to be done is that the parties at the conclusion each feel they have had a reasonable hearing or, put another way, the parties both got a fair shake.
In my 35 years of a senior legal and business career (although, as I am sure will have been evident to you, mainly not spent as an advocate) I have extremely rarely felt at the conclusion of a hearing that the issues were not fairly heard — but I did in this instance. I was unable to honestly report to my client that I could discern that his application received a fair hearing.
At the heart of justice being seen to be done is consistency. With the utmost respect for your Honour and the position which you hold, consistency was entirely not in evidence during the hearing. For example — I endeavoured to hand-up to your Honour an affidavit by myself which did no more than exhibit the ASIC record of the principle place of business of one of the named parties to the agreement at the core of this matter. Your Honour refused point blank to allow it, notwithstanding my repeated request to re-consider the ruling and why any judicial officer would refuse to be informed by a record of the Commonwealth body responsible for maintaining such records, remains beyond me. Subsequently, opposing Counsel produced an unheralded set of signed consent orders in which one of the parties is no longer apparently a party to the proceeding. Your Honour accepted these for filing in this very proceeding, without even a query.
The inconsistency was on a scale I have never before witnessed and the proceeding was characterized by almost every submission I made being critically scrutinized and repeatedly challenged even to the point of culling paragraphs of my client’s affidavit material which were and remain, based on the authorities cited, plainly relevant. These were paragraphs which related to my client’s financial circumstance and the potential cost to him of being forced to litigate in NSW. This, of course, is at the heart of why there is a jurisdictional limit placed upon the Local Court and also at the heart of the concept of forum inconveniens. Indeed, one of the two decisions of Judge Ginnane of the Victorian County Court to which I referred your Honour was determined principally on material in the nature of that which your Honour struck-out of my client’s affidavit.
By contrast, the submissions of the other party were neither the subject of any probing question nor query upon your Honour’s part. Now, it may be that where one party has a very strong case in making its application your Honour’s approach is to test that position very robustly and I do accept what your Honour indicated to the parties at the commencement of the hearing that your Honour is an expert in criminal matters these days and has not addressed civil proceedings for a number of years. Nevertheless, virtually the entirety of the submissions of the other party related to the identity of a possible Sydney-based undisclosed principal and its right to bring the proceeding. Although not queried by your Honour none of this was anything to the point. Section 34 of the local courts act is expressed to be in terms of ‘a material part of the cause of action’. Who may bring the action is an entirely different question and indeed Section 34 assumes that the party wishing to bring the action (whether a disclosed party or not) resides in NSW. This does not form any part of the cause of action itself.
Section 34, having assumed a NSW-based Plaintiff, addresses the further requirements for jurisdiction being either that the defendant is, at the time of service, resident in NSW OR that a material part of the cause of action arose in NSW. The residency of the plaintiff is assumed and thereafter has no relevance to the material parts of the cause of action.
Opposing counsel submitted that the payments made under the subject agreement went into a NSW-located bank account. But, of course, the document governing payments being the direct debit authority makes no mention of NSW but rather nominates a Victorian payee.
Your Honour, it cannot be that if a NSW-based painter travels to the UK and signs a contract with the Royal Family to repaint Buckingham Palace, the statutory jurisdiction of the Local Courts of NSW can be called in aid because the painter paid the Queen’s cheque into his Sydney held account. Your Honour can see the logic disconnect.
The arguments of opposing counsel regarding the ultimate place of receipt of the payments made in Victoria under the subject agreement will be readily apparent to Your Honour from his written submissions. This document forms my corresponding written submission. It will be further evident to your Honour that I do not accept that refusing my request to be also allowed to file a written submission was either fair or in the interests of justice nor satisfying the requisite provision of natural justice to my client.
Very respectfully yours,
Michael Gullquist
Corporate Lawyer cc Judicial Commission of NSW
On 27 March 2014, at the magistrate’s request, the court sent a copy of the 23 March letter to Mr Simons. An email was also sent to Mr Gullquist, copied to his opponent, advising that the magistrate would allow Mr Gullquist to file a short written submission in reply by close of business on Friday, 4 April 2014. The submission was to be marked to the attention of the magistrate, with a copy to be sent to his opponent. Mr Gullquist was also informed that the magistrate would permit brief submissions to be made on 10 April.
On the same day (27 March 2014), Mr Simons sent Mr Gullquist an email as follows:
Dear Sir
It is most improper for you to write to the court in such a way without advising us and providing us with a copy. Should you choose to do that again we will report you to the Office of the Legal Services Commissioner without further notice.
Regards
David Simons
Legal Practitioner Director
SR Law
A little later on the same day, Mr Simons sent Mr Gullquist another email:
Dear Sir
We refer to our earlier email correspondence and advise that we have now read your correspondence with the court.
We are staggered that a legal practitioner would send such correspondence to the court (copied to the Judicial Commission) at any time — let alone prior to the making of a decision when the judicial officer has already ruled that there could be no further submissions. The fact that it was not copied to us speaks volumes and the content of the correspondence is inexcusable.
We can assure you we will be taking this matter further.
Regards,
David Simons
Legal Practitioner Director
SR Law
On Friday 4 April 2014, at 4:45 pm, Mr Gullquist sent a letter dated 3 April 2014 (‘the 3 April letter’) to the magistrate enclosing written submissions, copy judgments, a copy ASIC record and a copy of s 36 of the County Court Act 1958. This was the third of Mr Gullquist’s five letters. The 3 April letter provided:
Your Honour,
RE: Case No: 2012/00221794 — Written submission on behalf of Mr Paul Floreani
The Chief Magistrate’s Executive Office has advised me of your direction to allow the defendant to now lodge a written submission, in support of his case — as the Plaintiff had already been allowed to do.
On behalf of my client, I express my appreciation of this opportunity being granted which, I feel, levels the playing field, as it were.
The written submission on behalf my client is attached, for Your Honour’s attention. It has attached to it, the following:
·Copy judgment of His Honour Justice Howie of the Supreme Court of NSW in Kim Michael Productions v Tropical Islands Management Ltd 2010 NSW SC 269;
·Copy judgment of His Honour Justice Mandie of the Supreme Court of Victoria in Eagle v Delta Haze Corp 2000 VSC 513;
·Copy ASIC record of principal place of business of Technology Fund Management Pty Ltd;
·Copy Section 36 County Court Act (Vic) 1958.
Subject to the matter in which he is presently appearing in Perth concluding on schedule on 9 April, I have tentatively arranged for Mr Rodney Brender of Maurice Byers Chambers to appear pro bono on Mr Floriani’s behalf to hear your Honour’s decision, when delivered on 10 April 2014.
Very respectfully yours,
Michael Gullquist
Corporate lawyer
Notwithstanding the magistrate’s direction that submissions be sent by the close of business on 4 April 2014 with a copy to Mr Gullquist’s opponent, Mr Gullquist waited until 4:00 am on Monday, 7 April 2014 before giving his opponent a copy of his submissions. At 4:00 am on 7 April 2014, Mr Gullquist emailed Mr Simons:
Dear Mr Simons,
I enclose a copy of the second defendant’s written submission, lodged in accordance with Magistrate Andrews’ directions.
There are referenced in the submission a number of judgments and supporting documents, which are on the public record. I do not have copies for you.
Cordially,
Michael Gullquist
Solicitor
At 6:16 am on the same day, Mr Simons sent the following email to Mr Gullquist:
Dear Sir
Kindly advise:
1. When the submissions were provided to His Honour; and
2.Whether you provided His Honour with copies of the judgments and supporting documents.
Regards
David Simons
Legal Practitioner Director
SR Law
Six minutes later, Mr Simons sent another email to Mr Gullquist:
Dear Sir
You should be aware that our complaint to be made against you will include the fact that you write to the court without providing us with a copy of such correspondence.
We now demand that you provide us with a copy of the correspondence with which you sent your submissions to His Honour.
We also now repeat the requests made in our earlier email:
1. When were the submissions provided to His Honour; and
2.Did you provide His Honour with copies of the judgments and supporting documents?
Regards
David Simons
Legal Practitioner Director
SR Law
Some six hours later (at 12:01 pm) Mr Gullquist sent the following email to Mr Simons:
Dear Mr Simons,
Thank you for your two emails. They were conveyed just four minutes apart and I assume responding to the latter will be sufficient for your purposes. I am interstate today, hence an early start and I forwarded a copy of my client’s written submissions as directed by His Honour, Mr Andrews SM, to you, quite early before I departed.
I observe that you are requesting a copy of my covering letter which accompanied the submission.
Technically the covering letter was addressed to His Honour, without indicating that it was being copied to any party. Nevertheless, I do not see any reason why you cannot have a redacted copy. I will forward it when I am back in my office which, as things stand, I expect will be tomorrow.
Sincerely,
Michael Gullquist
Subsequently, but again on 7 April 2014, Mr Gullquist sent the fourth of his five letters. This letter was dated 7 April 2014 (‘the 7 April letter’), and was addressed to the magistrate in the following terms:
Your Honour,
RE: Case no: 2012/00221794 — written submissions
The Plaintiffs’ solicitor has ‘demanded’ that I supply him with a copy of my covering letter to yourself forwarded with the written submission on behalf of my client.
That letter is addressed to yourself and I have informed my counterpart that a release of a copy to him, is a matter for the addressee ie yourself. I have no objection to you releasing the letter to him when the parties are next together, this Thursday 10th April.
In the interim, I have received a copy of the Plaintiff’s further written submissions dated 7 April 2014. Naturally contained therein, are alternate arguments regarding the applicable law and authorities and differing views of what the facts truly mean. However, I do not think it is helpful to submit bare falsehoods and to the contrary, I do think it is helpful to the Court to point these out.
At both paragraphs 10(a) and 10(b) the Plaintiff submits it does not know and that there is no evidence of the location of the account of Sweetwater Estate Pty Ltd, to be debited. At page 38 of the affidavit of David Joshua Edgeworth Simons, in opposition, you will see clearly in the Plaintiffs’ own document the address of the Sweetwater account at ‘Bendigo Bank 325-327 Racecourse Road, Flemington Victoria’. (copy attached).
Thank you for Your Honour’s consideration.
Very respectfully yours,
Michael Gullquist
Corporate Lawyer
On 8 April 2014, Mr Gullquist sent an email to Mr Simons:
I observe that you have now taken to ‘demanding’ that I do certain things. I understand that demanding things of hapless defendants may be you [sic] standard stock in trade however, I do not think it is an appropriate approach towards another practitioner.
I have now advised His Honour of your demand and indicated to him that I have no objection to the release of my covering letter but that, as he is the addressee, this is a matter for him.
I also indicated to him that the matters referred in paragraphs 10(a) and (b) of your client’s further written submissions are bare falsehoods. Look at page 38 of your own affidavit.
Cordially,
Michael Gullquist
Mr Simons responded half an hour later:
Dear Sir
Your comments are noted.
We also demand copies of all other correspondence you have sent to the court without providing a copy to us — including but not limited to the ‘advice’ to which you refer below and the apparent submission you seem to have also made.
We also demand a response to the two numbered questions posed.
Lastly we demand that you refrain from trying to engage in private correspondence with His Honour.
Regards
David Simons
Legal Practitioner Director
SR Law
On 9 April 2014, Mr Gullquist sent an email to the Magistrates’ Courts Executive Officer (‘the 9 April letter’) as follows:
Dear Executive Officer,
I refer to my email of yesterday afternoon, I observe that my accompanying letter directed to Mr J Andrews SM contained a typographical error in the penultimate paragraph.
The error has been corrected and in [sic] shown in the attached replacement letter which I would be pleased if you would bring to His Honour’s attention.
Sincerely,
Michael Gullquist
The 9 April letter was the fifth of Mr Gullquist’s five letters. Attached to the 9 April letter was an amended copy of the 7 April letter. The amendment changed the reference in para 10(b) in the 7 April letter to para 10(d).
At the hearing before the magistrate on 10 April 2014, Mr Gullquist’s opponent obtained access to the magistrate’s court file, and obtained for the first time copies of:
·the 18 March letter and annexed affidavit;
·the 3 April letter;
·the 7 April letter; and
·the 9 April letter (containing the amended version of the 7 April letter).
The proceeding at VCAT
The LSC brought two charges, in the alternative, against Mr Gullquist at VCAT. The charges related to the alleged breaches of rr 18.5 and 18.6 of the Professional Conduct and Practice Rules 2005 (‘the Rules’). Those rules provide:
18.5. A practitioner must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connection with current proceedings unless:
18.5.1the court has first communicated with the practitioner in such a way as to require the practitioner to respond to the court; or
18.5.2 the opponent has consented beforehand to the practitioner communicating with the court in a specific manner notified to the opponent by the practitioner.
18.6.A practitioner must promptly tell the opponent what passes between the practitioner and a court in a communication referred to in rule 18.5.
The charge in relation to which the finding of professional misconduct was made against Mr Gullquist was charge 1. Charge 1 was in the following terms:
Charge 1
Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act for engaging in conduct that involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence being his conduct:
(1) in respect of the 18 March 2014 letter:
(a)not promptly providing the letter to the plaintiff’s legal representatives or notifying them of it;
(b)breaching rule 18.6 of the Rules and, further, such breach being deliberate or reckless;
(2) in respect of the 23 March 2014 letter:
(a) sending the letter to LCM Andrews;
(b)copying the letter to the Judicial Commission of New South Wales;
(c)it was inappropriate and threatening especially since it was copied to the Judicial Commission of New South Wales;
(d)not obtaining the consent of the plaintiff’s legal representatives before sending the letter;
(e)not promptly providing the letter to the plaintiff’s legal representatives or notifying them of it;
(f)breaching rule 18.5 of the Rules and, further, such breach being deliberate or reckless; and/or
(g)breaching rule 18.6 of the Rules and, further, such breach being deliberate or reckless;
(3) in respect of the 3 April 2014 letter:
(a) sending the letter to LCM Andrews;
(b)not promptly providing the letter to the plaintiff’s legal representatives or notifying them of it; and/or
(c)breaching rule 18.6 of the Rules and, further, such breach being deliberate or reckless;
(4) in respect of the 7 April 2014 letter:
(a) sending the letter to LCM Andrews;
(b)not obtaining the consent of the plaintiff’s legal representatives before sending the letter;
(c)not promptly providing the letter to the plaintiff’s legal representatives or notifying them of it;
(d)breaching rule 18.5 of the Rules and, further, such breach being deliberate or reckless; and/or
(e)breaching rule 18.6 of the Rules and, further, such breach being deliberate or reckless;
(5)in respect of the 10 April 2014 email (and the second version of the 7 April 2014 letter):
(a) sending the letter to LCM Andrews;
(b)not obtaining the consent of the plaintiff’s legal representatives before sending the letter;
(c)not promptly providing the letter to the plaintiff’s legal representatives or notifying them of it;
(d)breaching rule 18.5 of the Rules and, further, such breach being deliberate or reckless; and/or
(e)breaching rule 18.6 of the Rules and, further such breach being deliberate or reckless.[5]
[5]The reference in the charge to ‘the 10 April 2014 email’ was a reference to the 9 April letter: Liability Reasons, n 2.
In the VCAT hearing, the LSC relied upon a number of documents, including a transcript of the hearing before the magistrate on 20 March 2014 and witness statements from Mr Simons, Mr David Aquilina (the barrister who appeared against Mr Gullquist on 20 March 2014), Mr Martin Watts (an employee of the LSC) and Ms Jacinta Haywood (the Executive Officer of the Chief Magistrate’s Office of the New South Wales Local Court).
Mr Gullquist was represented by experienced senior and junior counsel. Mr Gullquist did not give evidence, and his counsel did not seek to cross-examine any of the LSC’s witnesses.
At the commencement of the hearing, senior counsel for Mr Gullquist conceded that the sending of the 23 March letter, the 3 April letter and the 7 April letter was conduct that infringed rr 18.5 and 18.6. Additionally, it was conceded that this conduct amounted to unsatisfactory professional conduct. The 18 March letter and the 9 April letter were submitted by counsel for Mr Gullquist not to have infringed rr 18.5 and 18.6 because, although they were ‘communicated [with the court] in the opponent’s absence … in connection with current proceedings’, they were not ‘concerning any matter of substance’ within the meaning of r 18.5.
The concessions made at the VCAT hearing by counsel for Mr Gullquist substantially shortened the hearing. Ultimately, however, the Tribunal (constituted by Member E Wentworth) found that all five of the letters were in breach of the relevant rules. Member Wentworth summarised her findings as follows:
·I find that all of the letters were in breach of the relevant rules, and that in respect of the 3 April, 7 April and 9 April letters the contravention of the Rules was reckless. I was not satisfied that the contravention in respect of the 18 March and 23 March letters was either deliberate or reckless.
·While I did not find that the 23 March letter, when read as a whole, was threatening, it came close. I am in any event satisfied and find that it was wholly inappropriate and, of itself, is capable of constituting professional misconduct, including by the fact that it was not copied to Mr Gullquist’s opponent. It raised serious questions about Mr Gullquist’s professional judgment and competence.
·I find that the conduct as a whole represented a substantial failure to reach or maintain a reasonable standard of competence and diligence and was thus within the definition of professional misconduct in s 4.4.3(1)(a) of the Act.
While the member summarised her findings by saying that all of the letters were in breach of the relevant rules, in fact she only found the sending of each letter to be in breach of the particular rules alleged in the charge. So, the 18 March letter
was found to be a breach of r 18.6;[6] the 23 March letter, a breach of rr 18.5 and 18.6;[7] the 3 April letter, a breach of r 18.6;[8] the 7 April letter, a breach of rr 18.5 and 18.6;[9] and the 9 April letter, a breach of rr 18.5 and 18.6.[10]
[6]Liability Reasons [73].
[7]Ibid [41].
[8]Ibid [56].
[9]Ibid [60].
[10]Ibid [100].
Following her finding of professional misconduct against Mr Gullquist, there was a further hearing before Member Wentworth for the purpose of determining what, if any, orders should be made against him. As we have already observed, the orders made against Mr Gullquist included a reprimand, a requirement that he perform an additional five CPD units and the imposition of a supervisor in the event that he proposed to send correspondence addressed or directed to a judicial officer or quasi-judicial officer in the course of litigation. Member Wentworth’s reason for making what some might think were relatively benign orders, in the circumstances, were encapsulated in the following part of her reasons:
I take into account the concessions made on Mr Gullquist’s behalf by his counsel at the previous hearing … . The fact that Mr Gullquist accepted that three of the five letters were in breach of the relevant rules, and that the conduct was at the least unsatisfactory professional conduct, indicated that by the time of the hearing Mr Gullquist had gained insight into the wrongdoing. Further, the concessions made considerably shortened the hearing, enabling it to conclude within one day, and meant that witnesses were not required to attend. I give him credit for these matters.[11]
[11]Disposition Reasons [22].
The proceeding in the Trial Division
In his amended notice of appeal, Mr Gullquist sought leave to appeal, amongst other things, from the finding that he had engaged in professional misconduct. The amended notice of appeal[12] identified 23 proposed grounds. These were each tied to one or more of 27 paragraphs, each of which was asserted to be a question of law.
[12]Dated 27 July 2017.
In his amended notice of appeal, Mr Gullquist sought an order setting aside the finding made on 3 January 2017 and substituting for that finding a finding that he was guilty of unsatisfactory professional conduct within the meaning of s 4.4.4(a) of the Act. He also sought an order that the orders made on 1 March 2017 be ‘affirmed’, save for a costs order made against him — which he sought to have set aside. In the alternative, Mr Gullquist sought an order that, in respect of the finding of professional misconduct, all of the orders made on 1 March 2017 ‘be quashed and set aside’.
Mr Gullquist appeared for himself on his application for leave to appeal to the judge. It is neither necessary nor fruitful to attempt to encapsulate Mr Gullquist’s arguments (both written and oral) to the judge. Ultimately, the judge refused Mr Gullquist leave to appeal, and dismissed his proceeding. In so doing, the judge said:
Mr Gullquist does not identify an error of law about which there was any real or significant doubt such as would warrant leave to appeal in relation to any of the questions of law or proposed grounds of appeal identified in his submissions. I am not satisfied that the Tribunal fell into error.[13]
[13]Leave Reasons [105].
The application to this Court
Orders sought by the applicant
In his application for leave to appeal to this Court, Mr Gullquist sought an order that VCAT’s order of 3 January 2017 be set aside and ‘there be substituted therefore a finding that the appellant is not guilty of the charge of professional misconduct pursuant to s 4.4.4(a) [of the Act]’. No such order was sought in the application for leave to appeal to the Trial Division. As we have already observed, in that application, Mr Gullquist sought an order that he be found guilty of unsatisfactory professional conduct. When this matter was raised in argument with Mr Gullquist, he justified his change of position by saying:
Yes, however, my appeal, having been rejected, or leave to appeal having been rejected in that Court, my application for leave before this Court potentially seeks more than that.
A further order sought by Mr Gullquist in his application for leave to appeal was:
A declaration that the prosecutorial authority and/or the Legal Services Board, subject to any other disciplinary action being brought against the applicant in the interim, continue to unconditionally renew the full practising certificate of the applicant/appellant.
Immediately, it should be observed that the Legal Services Board was not, and is not, a party to the current proceeding. Accordingly, there is no basis for the making of any order against it. Moreover, if by ‘prosecutorial authority’, Mr Gullquist meant the LSC, the short answer to his application for an order that it renew his practising certificate is that it is not the function of the LSC to issue or renew practising certificates.[14]
[14]Pursuant to s 44 of the Legal Profession Uniform Law (Victoria) 2014, practising certificates may be granted or renewed by a designated local regulatory authority. The LSC is not one of these.
Proposed grounds of appeal
As we have already observed, the application for leave to appeal to this Court contains many grounds of appeal. Some overlap. Some appear to raise points not argued at first instance or before the judge. A number are expressed in language that is convoluted or otherwise difficult to comprehend. Many appear to assume that the concessions made by Mr Gullquist’s counsel at VCAT may simply be ignored.
Moreover, Mr Gullquist’s written case does little to elucidate matters. It contains a number of paragraphs expressed at an unhelpful and high level of generality. For example, para 1.1 in the applicant’s written case provided:
That the court below from the outset of its judgment was in such fundamental error as to the nature of the facts found by the Tribunal that the judgment should be regarded as unsound and raising as a fundamental question of law whether the judgment can safely be relied upon.[15]
Applicant’s submissions
[15]Paragraph 1.1 of Mr Gullquist’s written case was then followed by a table identifying Leave Reasons [3], [6(a)], [7], [8(c)], [11], [25], [31], [34], [57], [66], [70], [71(a)], [74], [76], [81] and [89].
Mr Gullquist commenced his oral submissions in this Court by saying that he accepted as ‘an accurate summary of the facts’, [1]–[67] of VCAT’s reasons given on 3 January 2017. As will become apparent, however, in the course of argument, Mr Gullquist sought to contest the content of some of those paragraphs.
Mr Gullquist then took the Court to the New South Wales Court of Appeal’s decision in Scroope v Legal Services Commissioner[16] for the purpose of establishing that a determination of whether conduct amounts to professional misconduct, or ‘merely’ unsatisfactory professional conduct, is a question of law.[17] Mr Gullquist relied on Scroope as part of a submission that the judge wrongly held at Leave Reasons [105] that Mr Gullquist had not identified any error of law in his application for leave to appeal to the Trial Division. As was pointed out in argument, however, the judge in fact said:
Mr Gullquist did not identify an error of law about which there was any real or significant doubt such as would warrant leave to appeal in relation to any of the questions of law or proposed grounds of appeal identified in his submissions.[18]
[16][2013] NSWCA 178 (‘Scroope’).
[17]Ibid [3], [47].
[18]Leave Reasons [105] (emphasis added).
Next, Mr Gullquist sought to cavil with the proposition that the 3 April letter was not provided to his opponent, in breach of r 18.6. The submission was that the 3 April letter was sent to the Court at 4:45 pm on Friday 4 April 2014, in accordance with the magistrate’s direction that submissions be filed by close of business on that day. Mr Gullquist submitted that there was no breach of any rule, or any misconduct, in not then sending submissions (which he had been directed to copy to his opponent) until 4:00 am, three days later, on the following Monday. This submission implicitly (if not explicitly) sought to retract the concession made at VCAT that the 3 April letter was sent in breach of r 18.6.
In further submissions made seeking to retract conceded breaches of r 18.6, Mr Gullquist submitted that it was sufficient compliance with r 18.6 to ‘tell’ one’s opponent that one had written to the court or the magistrate, and that the obligation to ‘tell’ in r 18.6 did not oblige a solicitor to provide copies of all documents that might have been sent to the relevant court. It may again be observed that this point was not taken by Mr Gullquist at VCAT.[19]
[19]In his oral submissions in reply, Mr Gullquist attempted to assert that the point was taken at VCAT. Mr Gullquist referred us to three pages of the VCAT transcript (VCAT Transcript, pp 16–19) where he said the point was taken. Those pages, however, do not support his assertion. Indeed, those pages contain only the submissions of counsel for the LSC.
Next, Mr Gullquist submitted that there was a conflict between the Liability Reasons and the Disposition Reasons. At [18] of the Liability Reasons, Member Wentworth said that the 23 March letter ‘raised serious questions about Mr Gullquist’s professional judgment and competence’. At [16] of the Disposition Reasons, the member said:
This is not a case where any interference with the respondent’s practising certificate is warranted or sought.
Mr Gullquist submitted that these statements were contradictory, could not stand together and showed that the member had erred. The so-called contradictory statements of the member required the judge to set aside VCAT’s finding of professional misconduct. In failing to do so, the judge erred.[20]
[20]In his written case, Mr Gullquist asserted that [141] of the Liability Reasons (where Member Wentworth described Mr Gullquist’s sending of the 23 March letter as ‘an astonishing failure to reach the expected standard’), rather than [18] of the Liability Reasons, was inconsistent with the Disposition Reasons. Nothing, however, turns on the apparent change of reference by Mr Gullquist.
Mr Gullquist then turned to [3] of the Leave Reasons. At [3], the judge described the letters as ‘five letters of complaint’. Mr Gullquist contended that none of the letters were letters of complaint. It may immediately be accepted that only the 23 March letter might be described as a letter of complaint, the other letters enclosing documents for filing and/or use in the Magistrates’ Court proceeding.
When it was raised with Mr Gullquist that, on any view, the 23 March letter was a letter of complaint ― it having been copied to the Judicial Commission of New South Wales ― Mr Gullquist demurred. Mr Gullquist contended that copying the letter to the Judicial Commission was not indicative of any complaint. Mr Gullquist noted that the Judicial Commission’s function includes, not only receiving complaints, but also receiving advice about the health of judicial officers. At this point, Mr Gullquist sought to give an explanation from the Bar table that he forwarded the letter to the Judicial Commission, having ‘been informed by medical colleagues’. He then said:
[I]t’s the reason why that letter was forwarded to the Judicial Commission and not my opponents, because I understood that I was essentially touching on areas that I thought were confidential to [the magistrate].
We immediately interpolate here that, having read all the material (including a full transcript of the hearing before the magistrate on 20 March 2013), there was no factual basis for Mr Gullquist’s assertions from the Bar table. Moreover, insofar as Mr Gullquist submitted that the 23 March letter was a letter about the health of the magistrate, rather than any complaint, that submission is devoid of merit. There is simply nothing in the letter suggestive of any such purpose. On its face, the letter was plainly a letter of complaint.
In the course of oral argument, Mr Gullquist submitted that errors were made by both the Tribunal and the judge when they concluded that he was not permitted to engage in any correspondence with the magistrate while his client’s proceeding was on foot. In support of these submissions, Mr Gullquist relied upon the New South Wales Court of Appeal’s decision in Griffin v The Council of the Law Society of New South Wales.[21] Griffin was said to be authority supportive of the proposition that solicitors are able to write to judicial officers without committing any breach of standards or rules of practice. Specifically, Mr Gullquist relied upon [103] and following in Griffin. We would interpolate at this stage that Griffin was a case involving the writing of a letter to a judge after judgment had been delivered.
[21][2016] NSWCA 364 (‘Griffin’).
Mr Gullquist also contended that the Tribunal and the judge erred in either failing to consider, or properly construe, the term ‘substantial’ in the definition of ‘professional misconduct’ in s 4.4.3(1) of the Act.[22]
[22]‘Professional misconduct’ is defined in s 4.4.3(1) of the Act to include:
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.
‘Unsatisfactory professional conduct’ is defined in s 4.4.2 of the Act to include:
Conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Mr Gullquist sought to make a series of submissions about why none of the letters breached rr 18.5 and 18.6. Again, many of these submissions sought either to argue matters that were conceded at VCAT, or to pursue arguments that had not been put before. For example, it appeared to be suggested that there was a problem in relation to VCAT finding a contravention of r 18.6 in relation to the 3 April letter. The 3 April letter was one that Mr Gullquist had been told by the Court he could file and copy to his opponent. Thus the 3 April letter was one to which the exception in r 18.5.1 applied. The letter was not ‘promptly’[23] copied to Mr Gullquist’s opponent.[24] On the question of whether the sending of the 3 April letter was a breach of r 18.6, Mr Gulquist sought to make something of the fact that the 3 April letter was not sent in breach of r 18.5.[25]
[23]See r 18.6.
[24]Although Mr Gullquist disputes this, saying that he copied it within 15 business minutes (5:00 pm on 4 April) being the close of business, with the 3 April letter being provided at 4:00 am on the next business day (7 April).
[25]See Leave Reasons [6(a)] and [8(a)]. But cf Leave Reasons [20].
Next, Mr Gullquist submitted that the reasons for judgment provided by the judge (the Leave Reasons) were ‘entirely at a superficial level’. That said, Mr Gullquist understood that attacking the Leave Reasons in this way was not of great utility unless he was also able to establish that the judge wrongly rejected a submission that there was an error of law made by VCAT in the Liability Reasons.
Mr Gullquist submitted that VCAT erred in finding that the 18 March and 9 April letters concerned ‘any matter of substance’ within the meaning of r 18.5. He noted that the 18 March letter was considered ‘simpliciter’ by VCAT ― he having not been charged with sending the affidavit that was enclosed with it. The letter itself was ‘merely a filing letter’. So far as the 9 April letter was concerned, he said this ‘merely corrected a typographical error in the 7 April letter’.
In relation to the VCAT hearing, Mr Gullquist submitted that he should not be held to the concessions made by his former counsel. In making that submission, Mr Gullquist said it was a matter of this Court’s discretion as to whether he should be held to concessions made below. His principal submission on this issue, however, was tied in with a proposed ground of appeal. Mr Gullquist contended that he had been denied procedural fairness at VCAT because the admissions made at VCAT were made on the basis that the case against him involved separate charges for each letter, not the ‘course of conduct’ charge now contended for by the LSC (a course of conduct charge involving the sending of all five of the letters). Mr Gullquist sought to agitate three points in support of this submission.
First, that the Act did not permit a ‘course of conduct’ charge to be laid.
Secondly, that if the Act permitted a course of conduct charge to be laid then it had to be laid in the clearest of terms. In support of his second point, Mr Gullquist relied upon the decision of the Full Court in R v Solicitors’ Disciplinary Tribunal; Ex parte L, a solicitor,[26] as quoted by Chernov JA (with whom Batt JA and Gillard AJA agreed) in Woods v The Legal Ombudsman.[27] The passage from Ex parte L, quoted in Woods was as follows:
It is sufficient to say that a solicitor presented before a full hearing of the Solicitors’ Disciplinary Tribunal should be made clearly aware, before the hearing commences, of that with which he is charged, and what material facts are alleged to constitute the charge or charges against him: see Gee v General Medical Council [1987] 1 WLR 564, at p 566 (HL); Johnson v Miller (1937) 59 CLR 467 per Dixon J, at p 489; Evatt J, at pp 495 and 497.
If a course of conduct is relied upon, it should be made clear that this is so — for duplicity can apply to charges before the domestic tribunals and lead to the striking out of charges suffering from that defect.[28]
[26][1988] VR 757 (‘Ex parte L’).
[27][2004] VSCA 247 [41] (‘Woods’).
[28]Ex parte L [1988] VR 757, 770; Woods [2004] VSCA 247 [41].
Thirdly, that having thought that he had in fact been charged separately for each of the five letters, if in truth Mr Gullquist was charged with a ‘course of conduct offence’ then all of the concessions made at VCAT were made on a mistaken (or wrong) basis. There was then said to be a denial of procedural fairness in the prosecution proceeding as it did, without telling Mr Gullquist how it was in fact putting its case (course of conduct, not five separate acts).
Mr Gullquist submitted that if, contrary to his primary position, it was open to charge him with a course of conduct charge, and he was in fact charged with a course of conduct charge, because there was ‘ambiguity in the process’, he should not be held to the concessions made by his counsel at VCAT. In effect, Mr Gullquist contended that he was now at liberty to put in issue each and every aspect of the case against him.
Finally (so far as his oral submissions were concerned), Mr Gullquist relied on the written submissions prepared by Dr Holland in relation to the Charter. While it is not entirely clear, it appears that Mr Gullquist’s argument is that the Charter (and in particular s 15) permitted him to send the letters, and that r 18.5 (or any other rule or principle that infringed that right) had to be read down so as to make him not guilty of professional misconduct or unsatisfactory professional conduct.
In support of his Charter argument, Mr Gullquist relied upon Bell J’s decision in McDonald v Legal Services Commissioner [No 2].[29] Mr Gullquist accepted that he did not run any Charter argument at VCAT or before the judge. He pointed out, however, that McDonald was decided on the same day as the judge handed down the Leave Reasons. Moreover, he observed that the LSC was aware of the issues in McDonald before it was handed down ― the LSC having been the defendant in that proceeding.
[29][2017] VSC 89 (‘McDonald’).
In addition to the points taken in oral argument, in his application for leave to appeal and written case, Mr Gullquist contended that the Tribunal erred (and the judge erred by refusing him leave to appeal) in failing to apply Jones v Dunkel[30] in relation to the LSC’s failure to call the magistrate at VCAT. Mr Gullquist submitted that, in circumstances where VCAT placed considerable emphasis and weight upon the perceived impact of the 23 March letter upon the mind of the magistrate, Jones v Dunkel should have been applied by VCAT in his favour.
[30](1959) 101 CLR 298 (‘Jones v Dunkel’).
Building on his Jones v Dunkel contention, Mr Gullquist submitted that, in the absence of evidence from the magistrate, VCAT ‘was in error in failing to draw the only inference open to it’, namely ‘that the magistrate recognised his error and corrected it’. We take this to be a submission that, upon receipt of the 23 March letter, the magistrate recognised that he had been wrong not to accede to Mr Gullquist’s request during the 20 March hearing to permit him to subsequently file a further submission in writing.
It was also submitted that the Tribunal made an error of law in accepting, and relying upon, the affidavit of Ms Haywood. This evidence was described by Mr Gullquist as ‘an inexact proof’. Immediately, we would interpolate that if Mr Gullquist had some concern about the exactness or otherwise of Ms Haywood’s evidence then it was open to him (or his counsel at VCAT) to cross-examine Ms Haywood. Mr Gullquist, however, chose not to take that course.
Finally (so far as his written submissions were concerned), Mr Gullquist asserted that the Tribunal erred in finding that the 18 March and 3 April letters constituted breaches of r 18.5, in circumstances where he was not charged with breaching that rule in respect of either of those letters.
Analysis
Course of conduct issues
Mr Gullquist’s contention that the Act does not permit a ‘course of conduct’ charge to be laid must be rejected. By its very terms, the Act contemplates a charge of professional misconduct founded on conduct that involves a ‘consistent failure to reach or maintain a reasonable standard of competence and diligence’. Plainly, to establish a ‘consistent failure’ to reach a particular standard involves a consideration of more than one act or omission — more particularly, in some cases it will involve consideration of a course of conduct. The same point may also be made in respect of that part of the definition of ‘professional misconduct’ that concerns a failure to ‘maintain’ the requisite standard of competence and diligence.[31]
[31]See further, Ex parte L [1988] VR 757, 770; Woods [2004] VSCA 247 [41].
Mr Gullquist’s next submission that the charge he faced was not a course of conduct charge must also be rejected. The charge was drafted as a single charge of professional misconduct, alleging specific conduct in respect of each of the letters. On a plain reading of the charge, it was a charge of professional misconduct constituted by the sending of the letters in the circumstances identified in the charge. On no view, could the charge be read as in fact constituting five separate charges.
Next, Mr Gullquist’s submission that he was denied procedural fairness because concessions were made at VCAT on the basis that he faced separate charges for each letter must also be rejected. Apart from the fact that the charge was plain on its face, shortly after the commencement of the hearing at VCAT, counsel for the LSC opened the LSC’s application as follows:
The application brings two charges of professional misconduct.[32] The first charge which my learned friend has taken the Tribunal to is at page 10 of the application for orders. It’s important to note that charge 1 is a single charge of professional misconduct, its charged on the basis that the course of conduct listed in the sub-paragraphs to charge 1 collectively involve a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.[33]
[32]While there were originally two charges, the second charge was an alternative to the first charge. At the hearing, all of the argument was about the first charge. VCAT having found that the first charge was established, the second charge fell away: Liability Reasons [18].
[33]Emphasis added.
Notwithstanding that this statement was made after senior counsel for Mr Gullquist had made concessions about the 23 March, 3 April and 7 April letters, to which we have already referred, counsel for Mr Gullquist took no exception to the way in which the case was opened on behalf of the LSC. There was no suggestion at VCAT that Mr Gullquist or his legal team were acting under any misapprehension as to the way in which the charge was formulated, or the way in which the case was to be put. Moreover, as the VCAT transcript discloses, references to the charge being a ‘course of conduct charge’ continued to be made throughout the hearing without any objection by Mr Gullquist or his legal team. The submission that there was some denial of procedural fairness by the LSC’s pursuit of a course of conduct charge is without merit.
It follows that the primary basis upon which Mr Gullquist seeks to withdraw the concessions made by his counsel at VCAT must also be rejected. While Mr Gullquist maintained that this Court still possesses a discretion to permit him to withdraw the concessions made at VCAT, he advanced no other argument as to why we would permit that course to occur in this case. It is sufficient for us to say that we see no error of law in Member Wentworth accepting the concessions made in the hearing before her. Similarly, we are not persuaded that it is in the interests of justice that Mr Gullquist be permitted now to withdraw the concessions upon which the case was conducted at VCAT.
Indeed, in our view there are positive reasons why Mr Gullquist should not be permitted to withdraw the concessions he made. The concessions resulted in Mr Gullquist receiving a disposition that was considerably more benign than might otherwise have been the case. Mr Gullquist received a very favourable disposition because, as a result of the concessions he made at VCAT, the member was persuaded that he possessed insight into his wrongdoing. Having obtained that benefit on the basis of his concessions, Mr Gullquist should not now be permitted to resile from the position he took at VCAT.
Charter issues
Mr Gullquist’s submissions concerning the Charter must be rejected. While his submissions relied extensively upon Bell J’s decision of McDonald, properly analysed, McDonald is of no assistance to him.
McDonald concerned an allegation made against a solicitor of unsatisfactory professional conduct in writing letters to another solicitor, which letters were alleged to have breached a rule requiring solicitors to 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’.[34]
[34]Rule 21 of the Rules.
In McDonald, it was accepted that the solicitor who wrote the impugned letters did so in an honest belief that he had been lied to by his opponent and that an offer made by his opponent was not genuine.[35] The acceptance of the honest belief of the solicitor in McDonald may immediately be contrasted with the present case. In the present case, despite Mr Gullquist’s best endeavours to give evidence from the Bar table in this Court, Mr Gullquist gave no evidence at VCAT. There is thus little (if any) basis upon which one might make a favourable finding to Mr Gullquist as to his state of mind in sending any of the letters (and in particular the 23 March letter, about which we will say more below).
[35]McDonald [2017] VSC 89 [75].
We do not consider that Mr Gullquist’s reliance on the Charter assists him. The breach of r 18.6 was the gravamen of the charge (sending ex parte communications to a judicial officer about a proceeding that was still on foot before that judicial officer). Nothing in the Charter (or more particularly s 15 of the Charter) gave the right to Mr Gullquist to communicate about the proceeding in which he and his opponent were involved, in the absence of his opponent, with the magistrate who was hearing the proceeding, in clear contravention of professional rules.
Complaints about the judge’s reasons
Mr Gullquist’s complaint that the judge held that he had not identified any error of law in his application for leave to appeal to the Trial Division must be rejected. As we have already observed, the judge made no such finding. The judge’s conclusion was that no error of law ‘about which there was any real or significant doubt such as would warrant leave to appeal’[36] was identified by Mr Gullquist.
[36]Leave Reasons [105].
There is more substance in Mr Gullquist’s complaint that the judge wrongly described the letters as five ‘letters of complaint’.[37] The complaint, however, goes nowhere. Plainly, the most egregious part of Mr Gullquist’s conduct was the sending of the 23 March letter. The 23 March letter was, undoubtedly, a letter of complaint. As we have already said, Mr Gullquist’s submissions to the contrary must be rejected. The description of the other letters as ‘letters of complaint’ did not affect the judge’s conclusion that the application for leave to appeal from VCAT should be refused. It was at best an irrelevant misdescription by the judge.
[37]Ibid [3].
In any event, as Mr Gullquist accepted in argument, in order to succeed in this Court, he had to establish an error of law on the part of VCAT. It was to this end that most of the substance of Mr Gullquist’s submissions were directed.
Remaining issues
With the possible exception of whether the 18 March and 9 April letters concerned matters of ‘substance’ within the meaning of r 18.5 (which we address below), none of the other issues argued by Mr Gullquist have any merit. Moreover, once Mr Gullquist is held (as we have held him) to the concessions made by his counsel at VCAT, most of his remaining arguments fall away. We should, however, mention the following.
Mr Gullquist’s submissions concerning Jones v Dunkel are devoid of merit. No complaint was made by his counsel at VCAT about any failure to call the magistrate. Moreover, it could hardly be suggested that the magistrate was somehow ‘in the camp’[38] of the LSC so that it was obliged to call the magistrate or face a Jones v Dunkel submission. In any event, had the matter been argued at VCAT, there would have been a serious issue as to whether the magistrate was compellable to give evidence.[39]
[38]See RPS v The Queen (2000) 199 CLR 620, 632 [26]; Chong v CC Containers Pty Ltd (2015) 49 VR 402 [209]-[210]; O’Donnell v Reichard [1975] VR 916, 929.
[39]See s 16(2) of the Evidence Act 2008 and the definitions of ‘court’ and ‘Victorian court’ in the Dictionary at the end of that Act.
Next, Mr Gullquist’s reliance upon Griffin was misconceived. As we have already observed, Griffin was a case involving the writing of a letter to a judge after judgment had been delivered. Nothing in Griffin supports the proposition that a practitioner for one party may communicate, in the absence of his or her opponent, on a matter of substance concerning a pending proceeding.
To the extent that Mr Gullquist attempted to rely upon authority (including Griffin and McDonald) to support an argument that he had a genuine belief in his entitlement to send the 23 March letter because of the way the magistrate conducted the hearing on 20 March, we reject that submission. Two points may be made.
First, as we have mentioned, Mr Gullquist chose not to give evidence at VCAT. No doubt had he given evidence, he would have been subject to some searching cross-examination about the genuineness of any belief he might have had in an entitlement to send the 23 March letter to the magistrate in the circumstances of this case.
Secondly, an examination of the transcript of the 20 March hearing before the magistrate shows nothing which Mr Gullquist could legitimately have thought entitled him to send the 23 March letter. The transcript reveals Mr Gullquist at one point being sarcastic with the magistrate. The magistrate was admirably patient with Mr Gullquist. The following exchange between the magistrate and Mr Gullquist does Mr Gullquist little credit:
MR GULLQUIST: Your Honour, I seek leave, if I may, to hand up and file a very short affidavit by myself. The effect of the affidavit is that it exhibits the ASIC record of the principal place of business of Technology Fund Management Pty Ltd.
[An objection was taken to the late filing of this affidavit by Mr Gullquist’s opponent.]
HIS HONOUR: Do you want to be heard further in relation to that?
MR GULLQUIST: Your Honour, it’s simply evidencing the registered office of one of the plaintiff companies.
HIS HONOUR: Well, I can only assume its attempted to — subsequently will be attempted to be relied on. It should have been served. I’m not going to allow it.
MR GULLQUIST: Very well, your Honour. In that case, I’ll direct your Honour instead to page 46 of Mr Simons’ affidavit.
HIS HONOUR: Yes.
MR GULLQUIST: I’m assuming your Honour would allow that to be considered.
HIS HONOUR: Oh look, I don’t need those sorts of comments, thank you.
MR GULLQUIST: Your Honour, the document that I sought to tender would have assisted the Court in its understanding - - -
HIS HONOUR: It may well have, but this is also part of the affidavit - -
MR GULLQUIST: Very well, your Honour.
HIS HONOUR: - - - that we’ve now been referred to, yes.[40]
[40]Emphasis added.
Moreover, later in the argument, when Mr Gullquist was making his final submissions before the magistrate, Mr Gullquist said:
Your Honour, I’ll try to be as brief as possible. I’ve had a pretty good go.
Mr Gullquist then asked for the opportunity to make a submission in reply in writing. This was rejected by the magistrate who, quite properly, said ‘it should be done today’. There was nothing in the magistrate’s conduct of the 20 March hearing that in any way justified Mr Gullquist sending the 23 March letter to him. The failure to notify his opponent of the sending of the letter, and the failure to provide his opponent with a copy, made the matter all the more egregious.
Next, Mr Gullquist’s submissions concerning the construction of r 18.6, and whether that rule requires a practitioner to ‘tell’ an opponent of a communication, or whether it requires a practitioner to ‘copy’ a communication to his or her opponent must be rejected.
First, as we have already observed, this is yet another point that was not taken during the hearing at VCAT. We see no reason to permit Mr Gullquist now to contend that there was some error of law committed by the member in not accepting an argument not run before her.
Secondly, the point now sought to be run presupposes that the only basis upon which Mr Gullquist might be found guilty of professional misconduct was predicated on the establishment of a breach of the Rules (in this particular case, r 18.6). The charge as formulated was wider than one that required, as an essential element, the establishment of a breach of the Rules. Mr Gullquist’s concession at VCAT, however, obviated the need for the member to consider whether the failure by Mr Gullquist to copy the letters to his opponent was sufficient to found a charge of professional misconduct.
If Mr Gullquist had advanced the construction arguments he now wishes to advance in relation to r 18.6 at VCAT, the LSC could have pursued its case on the basis that, strictly speaking, a breach of the Rules was not an essential element of the professional misconduct charge. Put bluntly, it is difficult to see what defence Mr Gullquist would have had to a charge of professional misconduct constituted by the sending of the 23 March letter (without copying it to his opponent) even if rr 18.5 and 18.6 did not exist.
Finally, Mr Gullquist’s submissions about inconsistencies between the Liability Reasons and Disposition Reasons must be rejected. The member was plainly correct when she said in the Liability Reasons that the sending of the 23 March letter raised serious questions about Mr Gullquist’s professional judgment and competence and that that letter was sufficiently serious to call into question his fitness to practice.[41] There was no inconsistency then, in the Disposition Reasons, concluding that because Mr Gullquist had demonstrated insight (a matter which might now be capable of debate), this was not a case where the interference with his practising certificate was warranted.[42]
[41]Liability Reasons [18], [141].
[42]Disposition Reasons [16].
Conclusion
The question of whether the 18 March or 9 April letters concerned ‘any matter of substance in connection with current proceedings’ within the meaning of r 18.5 is capable of argument. It is only capable of argument in respect of the 18 March letter, however, because the LSC’s case in respect of the 18 March letter did not include the sending of the affidavit (which affidavit contained submissions) sent under its cover. If the LSC’s case in relation to the 18 March letter had included the sending of the affidavit, there could have been little doubt that the communication to the Court concerned a matter of substance in the proceeding pending in that court. In any event, the 18 March letter clearly related to the contested proceeding and was not concerned only with matters of administration or procedure.
The 9 April letter involved the correction of a typographical error in the 7 April letter. The 7 April letter was conceded by Mr Gullquist at VCAT to have been sent in breach of rr 18.5 and 18.6. On one view, the correction of a typographical error in a letter concerning a matter of substance is not of itself an additional matter of substance, and therefore not a matter of substance. On another view, the correction is a repetition of the communication of a matter of substance, and is therefore a further communication on a matter of substance. We consider it open to adopt the latter view.
The real gravamen of the finding against Mr Gullquist relates to the sending of the 23 March letter. As the member said:
Of itself, the 23 March letter is sufficiently serious or important to call into question Mr Gullquist’s fitness and competence to practise. It represents, in my view, an astonishing failure to reach the expected standard.[43]
[43]Liability Reasons [141].
We agree. Moreover, in our view, the contrary is not reasonably arguable. The sending of the 23 March letter to the magistrate in the circumstances of this case was unsatisfactory professional conduct by Mr Gullquist, involving a substantial failure to reach or maintain a reasonable standard of competence and diligence within the meaning of s 4.4.3(1) of the Act.
To the extent that Mr Gullquist argued that the finding that his departure from standards was ‘substantial’ required VCAT to engage in an analysis of the meaning of the word ‘substantial’, we reject that submission. In different contexts, the word ‘substantial’ has been given different meaning. Relevantly, three possibilities exist:
(1) Real or of substance, as distinct from ephemeral or nominal;
(2) Large, weighty or big; and
(3) In a relative sense, considerable.[44]
[44]As to these possible meanings, see Butterworths Australian Legal Dictionary (1997 Reed International Books Pty Ltd trading as Butterworths) 1129. See also, Re Queensland Co-operative Milling Association Ltd (1976) 8 ALR 481; Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367; Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557.
It is not necessary for us to pick between these possibilities in the present case. By whatever definition of substantial is used, Mr Gullquist’s conduct in sending the 23 March letter to the magistrate satisfied that element of the definition of professional misconduct in the Act. The 23 March letter provided the core component of the course of conduct charge and the sending of the other letters demonstrated that the failure to reach a reasonable standard of competence and diligence did not occur in isolation but was part of a collective pattern of behaviour.
Order
There will be an order refusing Mr Gullquist’s application for leave to appeal.
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