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Power v Hamond

Power v Hamond

Case [2006] VSCA 25 22 February 2006

Judicial Review

Natural Justice & Procedural Fairness

Improper Exercise of Power

Trust Moneys

Administrative Law

Ethics & Legal Profession

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5134 of 2004

KEVIN JOSEPH POWER AND ORS
	Appellants
v.
KATHERINE DIANE HAMOND	Respondent

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JUDGES:	MAXWELL, P., ORMISTON and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	21, 22 and 26 September 2005
DATE OF JUDGMENT:	22 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 25

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Legal Practitioners – Legal Ombudsman – Power of investigation under the Legal Practice Act, 1996 (repealed) – Allegations of misconduct against court-appointed receiver – Whether Ombudsman under duty to investigate complaint – Whether Ombudsman empowered to investigate conduct of a court-appointed receiver – Power of Ombudsman to require practitioner to explain conduct – Whether Ombudsman required to provide particulars before requiring explanation – Improper exercise of power by Ombudsman –Trust moneys – Whether Part 6 of Act applied to receiver appointed under Part 9 – Practising certificate – Requirement to obtain professional indemnity insurance – Whether receiver “corporate practitioner” – Whether receiver’s conduct of practise is practised on “own account” – Legal Practice Act 1996 (Vic), Parts 1, 2 and 5-9.

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APPEARANCES:	Counsel	Solicitors
First Appellant	Mr R.A. Brett, QC with Mr M.K. Moshinsky	Mallesons Stephen Jaques
Second and Third Appellants	Mr J.D. Merralls, QC with Mr D.G. Robertson	Mallesons Stephen Jaques
Respondent	Mr J.G. Santamaria, QC with Mr M.R. Scott	Allens Arthur Robinson

MAXWELL, P.:

I have had the considerable advantage of reading in draft the reasons for judgment of Chernov JA. I agree with the orders which his Honour proposes and, subject to what follows, I do so for the reasons which his Honour gives.

The conduct of the Young Hubbard investigation

In its relevant part, s.145(1) of the Legal Practice Act 1996 (“the Act”) provided as follows:

“(1) The Legal Ombudsman must investigate –
(a) a complaint made to him or her, other than a complaint –
(i) dismissed by him or her under s.141; or
(ii)referred to an RPA or the Board under s.142 or 143;

...”

Self-evidently, this provision imposed a duty on the Legal Ombudsman to investigate complaints. Every complaint made to the Legal Ombudsman had to be investigated by her, unless one or other of the exceptions applied.

The exception referred to in s.145(1)(a)(i) picked up the power of dismissal conferred by s.141(1) of the Act, under which the Ombudsman could dismiss a complaint –

“...if satisfied that the complaint [was] frivolous, vexatious, misconceived or lacking in substance.”

The second exception itself fell into two parts. That is, the Ombudsman was not required to investigate a complaint –

(a) if she considered that it did not raise a matter of conduct that may amount to misconduct or unsatisfactory conduct by a legal practitioner or firm, but did raise matters that could constitute a dispute, in which case she was obliged to refer it to the relevant RPA or the Board (s.142(1)); or

(b) if she decided, in exercise of the discretion under s.143, to refer the complaint for investigation by the relevant RPA (or, in certain…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Power v Hamond

Details

AGLC: Power v Hamond [2006] VSCA 25
Case: [2006] VSCA 25
Decision Date: 22 February 2006

CaseChat Overview and Summary

In the matter of Power v Hamond, the respondent, Hamond, was appointed as a receiver over the assets of a company by the Supreme Court of Victoria. The appellant, Power, lodged a complaint with the Legal Ombudsman alleging that Hamond had misappropriated trust moneys and acted improperly in his capacity as receiver. The dispute reached the Supreme Court of Victoria, where the court was required to determine several legal issues. Firstly, whether the Ombudsman had a duty to investigate the complaint against a court-appointed receiver, and whether the Ombudsman had the power to investigate such conduct. Secondly, whether the Ombudsman could require the practitioner to explain their conduct without providing particulars, and if the Ombudsman had improperly exercised their power. Additionally, the court had to consider whether the provisions of the Legal Practice Act 1996 (Vic) applied to a receiver appointed under Part 9 of the Act, and whether the receiver was considered a “corporate practitioner” for the purposes of the Act.

The court found that the Ombudsman had a duty to investigate the complaint and had the power to investigate the conduct of a court-appointed receiver. The court held that the Ombudsman was not required to provide particulars before requiring the practitioner to explain their conduct, as this was not a condition precedent to the exercise of the Ombudsman's power. However, the court found that the Ombudsman had improperly exercised their power by requiring the respondent to explain their conduct without providing particulars. The court also found that Part 6 of the Act applied to the receiver appointed under Part 9, and that the respondent was a “corporate practitioner” for the purposes of the Act. Finally, the court held that the respondent's conduct of practise was practised on “own account” for the purposes of the Act, and that the respondent was therefore required to obtain professional indemnity insurance.

The court's decision in Power v Hamond provides important guidance on the powers and duties of the Legal Ombudsman, and the scope of the Legal Practice Act 1996 (Vic). The court's finding that the Ombudsman had improperly exercised their power by requiring the respondent to explain their conduct without providing particulars is particularly significant, as it highlights the importance of procedural fairness in the exercise of statutory powers. The court's decision also clarifies the application of the Legal Practice Act 1996 (Vic) to court-appointed receivers, and the obligations of such receivers under the Act.

Orders