Victorian Lawyers RPA Ltd v Kearney
[2002] VSC 470
•7 November 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4815 of 2002
| VICTORIAN LAWYERS RPA LTD | Plaintiff |
| v | |
| MICHAEL KEARNEY | Defendant |
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JUDGE: | Smith, J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 October 2002 | |
DATE OF JUDGMENT: | 7 November 2002 | |
CASE MAY BE CITED AS: | Victorian Lawyers RPA Ltd v Kearney | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 470 | |
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Legal profession – Legal Professional Tribunal – Recommendation to strike off the Roll of Practitioners – Whether error of law in finding misconduct – Requirement of notice
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Randall | Joseph Barravecchio |
| The Defendant in person |
HIS HONOUR:
The Application
By originating motion filed 19 March 2002 the plaintiff, Victorian Lawyers RPA Ltd, seeks the following orders:
(i)An order striking the name of Michael John Kearney from the Roll of Practitioners of the Supreme Court of Victoria.
(ii)An order that the costs of the plaintiff of this application be paid by the defendant.
It appears that charges were brought before the Legal Profession Tribunal by the plaintiff against the defendant, Michael John Kearney, and were heard on 21 August 2001. On 18 September 2001 the Tribunal made the following orders:
"(1)That the practitioner shall not apply for a practising certificate until after 21 August 2011;
(2)that the practitioner shall not apply for a practising certificate until he has complied with the order of the Tribunal made 12 May 2000 in the matter T0067 of 2000 and with the order of the Tribunal made 7 July 2000 in the matter T0148 of 2000;
(3)that the practitioner be referred to the Supreme Court with a recommendation that his name be struck off the Roll of Practitioners;
(4)that the practitioner shall pay to Victorian Lawyers RPA Ltd its costs of and incidental to the hearing fixed at $4,195.00;
(5)that Victorian Lawyers RPA Ltd shall attempt to effect personal service upon the practitioner of a copy of this order and a copy of the reasons of the Full Tribunal."
The order also recorded the granting of leave to amend the notice of hearing of charges in the manner set out in the schedule to the order.
Thus the situation is one where the Tribunal directed that the practitioner be referred to the Supreme Court with a recommendation that his name be struck off the Roll of Practitioners. In doing so, the Tribunal was relying on s 160 of the Legal Practice Act 1996 ("the Act"). In particular, section 160(1) provides that if the Tribunal finds a legal practitioner guilty of misconduct it may, amongst other things, in the case of the Full Tribunal –
"(iv)Refer the practitioner to the Supreme Court with or without a recommendation that the practitioner's name be struck off the Roll of Practitioners."
Section 160(3) of the Act provides as follows:
"(3)The Supreme Court must implement a recommendation of the Tribunal under sub-section (1)(c)(iv) unless satisfied that the Tribunal made an error of law in finding the practitioner guilty of misconduct."
History of the Matter
Pursuant to s 151 of the Legal Practice Act 1996, Victorian Lawyers RPA referred a charge to the Tribunal in relation to the defendant, Michael John Kearney. The charge was one of misconduct. The papers filed with the Tribunal included a notice pursuant to s 151 of the Act which briefly stated the nature of the allegations as follows:
"2.On 16 June 2000, Victorian Lawyers RPA Ltd ("the RPA") received a complaint about the legal practitioner from White Cleland, solicitors. The complaint was investigated. The RPA is of the opinion that the legal practitioner has been guilty of misconduct. The misconduct arises from the legal practitioner engaging in legal practice whilst unqualified; failing to respond to the RPA's letters and breaching orders made by the Legal Profession Tribunal on 12 May and 7 July 2000.
3.The misconduct alleged is misconduct within the meaning of s 137(a) of the Legal Practice Act 1996, in particular:
(a)a wilful or reckless breach of s 314;
(b)a wilful breach of s 149;
(c)misconduct at common law."
In substance the charges dealt with by the Tribunal comprised the following:
(a) The matter of Twomey. The charges were a failure to provide a full written explanation of his conduct and non-compliance with an order by a Deputy Registrar on 12 May 2000 to provide such an explanation (involving breaches of ss 149 and 436(a) of the Act).
(b) The Simeoni matter. The charges related to alleged failure to comply with a request to provide a full written explanation of his conduct and a failure to comply with a subsequent order made directing the provision of a full written explanation on 7 July 2000 (breaches of ss 149 and 436(a) of the Act).
(c) White Cleland matter. The charges here concerned, first, a complaint that the defendant had written to the firm of White Cleland, solicitors, by letter dated 1 June 2000 indicating he was acting as solicitor for a client named Niblett in relation to an action against Niblett by a client of White Cleland. The defendant had written indicating that he would seek to set aside the judgment on behalf of his client. The charge was that he had engaged in legal practice in wilful contravention of s 314 of the Act. In addition, in connection with this matter, he was charged with failing to provide a written explanation of his conduct (s 149). I note as to that that the Reasons of the Tribunal note that the letter seeking the written explanation was not addressed to the registered address of the practitioner but to Post Office Box 410, Northcote 3078 because the letter to White Cleland bore that address. The Reasons noted that the correct post code was not used but had little doubt that delivery would have been ultimately effected to the post office box. It was sent by registered mail and there was no notice of non-delivery or rejection.
There were particulars attached detailing the above allegations.
Issues
Relying on s 160(3) of the Act, the plaintiff submits that the Court is obliged to order that the defendant be struck off the Roll of Practitioners.
The defendant argues that there was "an error of law in finding the practitioner guilty of misconduct" in that the hearing proceeded to its finding of misconduct in proceedings which denied him natural justice. He submitted that there was no hearing at which he was present and he had not received any documents notifying him of the hearing. He had therefore been deprived of any opportunity to present a case and so denied natural justice. He also sought an order referring the matter back to the Tribunal for rehearing.
Counsel for the plaintiff argued for a narrower interpretation of s 160(3) saying that the statutory exception was confined to an error of law by the Tribunal in making a relevant finding – in this case, the finding that the documents had been served and that the hearing could proceed in the absence of the practitioner. Counsel conceded, properly, that if there was such an error, then there would be an error of law in finding the practitioner guilty of misconduct.
Evidence as to Service
Included with the papers filed with, and considered by, the Tribunal were copy documents. So far as is relevant to the present application, I note the following.
(a)The Tribunal referred to a letter written on 23 June 1999 by the defendant, as a solicitor, which contained no address, but a fax number and mobile phone number.
(b)There was a letter which purported to come from Michael J Kearney "Barrister and Solicitor" with an address of PO Box 410 Northcote 3070. It was addressed to White Cleland and dated 1 June 2000 and purported to be written on behalf of a "client", Mr Niblett. The Tribunal also noted that he used a post office box address on the notice of appearance filed for Mr Niblett.
(c)There was a letter dated 19 June 2000 addressed to Michael Kearney, Post Office Box 410, Northcote, 3078 sent by a delegate of the Victorian Lawyers RPA Ltd to Mr Kearney referring to a complaint.
(d)Reference should also be made to a statutory declaration the defendant lodged with Victorian Lawyers RPA Ltd which amongst other things gave as his contact address 25 Cunningham Street, Northcote on 24 August 2000.
(d)There was also a letter written by John Mazaris, solicitor, a delegate of the Victorian Lawyers RPA Ltd, to Mr Kearney recording a conversation that occurred between them on 28 August 2000 outside the County Court and other matters. It is dated 29 August 2000 and addressed to Mr Kearney at 25 Cunningham Street, Northcote 3070.
Finally, I note that the Tribunal's Reasons record the fact that at the hearing in the County Court on 28 August 2000, the defendant informed a County Court judge that he was a one-client solicitor and had no fixed address.
Mr Kearney has sworn an affidavit in which amongst other things he stated:
· That he practised as a solicitor and accountant at 764 High Street, Thornbury until December 1997 when he did not renew his practising certificate. I note that 764 High Street was his registered address for the purposes of the Act. He further deposed that he continued to practise as an accountant from that address until June 1998 when he had to vacate because of arrears of rent. From that time onwards he was without a fixed address and lived at a variety of friends' and family's residences. Any mail addressed to him after that date to 764 High Street, Thornbury would not have reached him.
· As he was not practising as a solicitor he saw no reason to amend his registered address at the Legal Practice Board. Having no address he did not alter his Electoral Roll registration address. He agreed that he advised a County Court judge that he had no fixed address.
· He denied receiving the notice of hearing and correspondence. This evidence was not challenged. He denied receiving a letter from RPA dated 19 June 2000 sent to Post Office Box 410 Northcote 3078. He said he shared this box with his estranged wife and had no recollection of receiving notice of registered mail.
· He offered attempted explanations of his conduct in the Twomey and Simeoni matters which, if they were accepted, would either go in mitigation or excuse.
· When he applied for a practising certificate in August 2000 he paid by cheque and the cheque was accepted. He had no recollection of being advised that there was a problem with the certificate or in regaining the certificate. As a result he maintains that at the time of the case in the County Court when he appeared for Mr Niblett he believed he had regained it. At the same time, he maintained that he did not act as a solicitor in the matter involving Mr Niblett but as an accountant. He said that he was not advised his application was refused until he met an officer of the Law Institute at the County Court hearing.
· He deposed that when he applied for the practising certificate he had no information that he had been disciplined because he had received no notice.
· He did not become aware of the Supreme Court proceeding until it was drawn to his attention by a friend that there was a listing of the proceeding in the Law Institute Journal.
Tribunal Reasons
The Tribunal considered the issue of service of the charge. In its reasons it states the following:[1]
"The practitioner did not appear at the hearing before the Full Tribunal. It is not unfair to say that he appears to be an inveterate non-appearer. The practitioner has been frequently charged with misconduct and convicted before the Tribunal, but has not in the past appeared to answer the charges, notwithstanding service effected by post to his address registered under the Legal Practice Act. This is the reason for emphasis by us later upon certain matters which must have been within the knowledge of the practitioner long before the hearing of the present case.
We are satisfied that a true copy of the notice of hearing of charges dated 17 July 2001 was served on the practitioner by posting on 17 July 2001 in an envelope addressed to the practitioner at the address of 764 High Street, Thornbury. This address is and was at all material times the practitioner's registered address for service which was provided to the Legal Practice Board by the practitioner pursuant to s 18(1)(c) of the Act and which was never changed by the practitioner."
[1]At p 2.
The Tribunal published an addendum to its reasons on 25 September 2001. It noted the following:
"In our written Reasons delivered on 18 September 2001 for our order of that date, we pointed out:-
(1)that the registered address of the practitioner in the Register kept pursuant to s 9 of the Act, is and has been at all material times 764 High Street, Thornbury 3071;
(2)that this address was provided by the practitioner to the Legal Practice Board pursuant to s 18(1)(c) of the Act and has not been changed by him;
(3)that when the practitioner applied on 24 August for a practising certificate he gave upon the application form as his address 25 Cunningham Street, Northcote.
On the day we delivered our written Reasons we discovered that upon the Commonwealth Electoral Roll, as at 10 November 2000, the following entries appear:
'Kearney, Louise Jayne – 25 Cunningham Street, Northcote
Kearney, Michael John – 764 High Street, Thornbury
Kearney, Russell Alexander – 25 Cunningham Street, Northcote.'
It is thought that the RPA and the Legal Practice Board may find this information useful."
Analysis
The initial question to be resolved is the construction of s 160(3) and, in particular, the meaning of "the Tribunal made an error of law in finding the practitioner guilty of misconduct".
It is open to argument that the Tribunal makes such an error should it proceed to determine a charge which has not been brought to the attention of a practitioner, it having the responsibility of giving notice.[2] I will proceed, however, accepting for the purposes of argument, the construction advanced by the plaintiff – that "error of law" in s 160(3) is confined to an error of law in the Tribunal finding that there had been service and, therefore, that it could proceed in the absence of the defendant.
[2]R v Diggines [1985] 1 QB 1109; R v Secretary of State for the Home Department, ex parte al-Mehdawi [1990] 1 AC 876. It is accepted that a denial of natural justice is an error of law. Awan v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 594; Connelly v Department of Local Government NSW CA, unreported BC8500379 28 November 1985; Wright v Victorian Civil and Administrative Tribunal [2000] VSC 321.
In determining this issue it is necessary to refer first to relevant legislative sections. They are the following:
"412. Tribunal must give notice of hearings and allow witnesses
(1) The Tribunal must give a party to a matter before it--
(a)reasonable notice of the time and place of the hearing; and …
(2)If a person to whom notice has been given under sub-section (1) does not attend at the time and place specified in the notice, the Tribunal may hear the matter in the person's absence.
431.Service of notices on practitioners and firms
(1)For the purposes of this Act, a notice or other document may be served on, or given to, a legal practitioner (being a natural person) … -
(a)by delivering it personally to the practitioner; or
(b)by sending it by post to the practitioner at the address for service appearing on the Register. …
434. When is service effective?
(1)For the purposes of this Act, a notice or other document must be taken to have been served on, or given to, a person or firm--
(a)in the case of delivery in person, at the time the document is delivered;
(b)in the case of posting, 2 business days after the day on which the document was posted.
(2)In this section, "business day" means a day other than a Saturday, Sunday, public holiday or public half-holiday."
I note that, unlike s 49 of the Interpretation of Legislation Act 1994, s 434 does not create a rebuttable presumption. It purports to create an irrebuttable presumption both of service and the time of service. That is a remarkable outcome bearing in mind the occasional frailties of the postal system. In the present case, however, s 412 requires "notice" not "service". As a result, while the inference of notice would arise from the operation of the presumption of service in the absence of any contradictory evidence, the Tribunal would not be obliged to find that notice had been given. In particular, under s 412 it could only proceed in the absence of the defendant if satisfied that he did have notice.
Bearing in mind the potential seriousness of the consequences of a hearing before the Tribunal, it would be surprising if it was intended that the Tribunal could make findings of misconduct, in the absence of the practitioner, relying on deemed service of the charges when it could not be satisfied that the charges had come to the attention of the practitioner. The suggested distinction between notice and service avoids this result.
Turning to the Tribunal's reasons, the above quoted passages show that it was plainly alive to the issue. Those same passages, however, show that the Tribunal focused on the issue of service not the issue of notice. I am satisfied that in doing so it did not consider the relevant ultimate question – whether notice had been given to the practitioner. There was thus an error of law.
The question remaining is whether that error was one made in finding misconduct. It was if it was causally connected to the finding of misconduct. The answer depends upon the answer to the further question – whether the Tribunal would have been entitled to proceed on the basis that the defendant had notice in any event.
Turning to the evidence, I am satisfied that it was not reasonably open to find that notice had been given to the practitioner. The relevant papers were posted to the address on the Register but the defendant had on the evidence before the Tribunal apparently ceased to conduct a legal practice in any continuous or regular sense for some years. In addition, the evidence included evidence of a lack of address, of changing addresses and, significantly, more recent and different addresses at which he could be contacted, adding weight to the conclusion that he would not have received anything sent to the address on the Register.
Considering the evidence before the Tribunal it was not open to find that notice of the hearing had been given to the defendant. Thus, it cannot be said that the Tribunal could have heard the charges in the absence of the defendant. The statutory proviso to s 160(3) is therefore satisfied.
Conclusion
In light of the above, I am satisfied that the orders sought should not be made and that the application should be dismissed.
The defendant has also sought an order remitting the matter to the Tribunal for further hearing. It seems to me that I cannot make such an order in the proceeding that is currently before me. I have no proceeding brought by the defendant which seeks to challenge the decision and seeks the referral of the matter to the Tribunal. That is a matter that he will have to resolve if he wishes to do so and it may be that the Tribunal with its own procedures can accommodate him without the need for any formal application to set the decision aside.
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