Victorian Lawyers RPA Ltd v Slattery

[2003] VSC 228

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6866 of 2002

IN THE MATTER of Section 249 of the Legal Practice Act 1996
- and –
IN THE MATTER of DANIEL SYDNEY SLATTERY a practitioner
(Practising under the firm name of DANIEL S. SLATTERY & ASSOCIATES)

VICTORIAN LAWYERS RPA LTD ACN 075 475 731	Plaintiff
v
DANIEL SYDNEY SLATTERY (PRACTISING UNDER THE FIRM NAME OF DANIEL S. SLATTERY & ASSOCIATES)	Defendant

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JUDGE:	CUMMINS  J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	30 MAY, 11 JUNE 2003
DATE OF JUDGMENT:	24 JUNE 2003
CASE MAY BE CITED AS:	VICTORIAN LAWYERS RPA LTD v SLATTERY
MEDIUM NEUTRAL CITATION:	[2003] VSC 228

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.D. Merralls QC Mr P.J. Riordan	Joseph Barravecchio
For Mr K.J. Power	Mr A.J. Myers QC Mr M. Moshinsky

HIS HONOUR:

1. By summons filed in this Court on 29 May 2003 the plaintiff, Victorian Lawyers RPA Ltd, has sought an Order that Mr Kevin Joseph Power, a current practitioner and general manager of the Department of Professional Standards of the plaintiff, be authorised to carry on the practice of Daniel Sydney Slattery practising under the business name of Daniel S. Slattery & Associates.  Consequential orders also were sought.  Like applications in 20 other matters were filed in the Court on 29 May 2003.

1. The matters came on for hearing in the Practice Court on 30 May 2003.

1. Having heard senior counsel and read the affidavit material in support of the summonses, I granted the Orders sought.  Due to pressure of business in the Practice Court I said that I would publish my reasons later as I wished to consider further the history of the matter as revealed in the affidavit material. The matters came on again briefly on 11 June 2003 when further affidavit material was filed and to which I later refer.

1. The plaintiff is under the provisions of the Legal Practice Act 1996 ("the Act") the recognised professional association for almost all solicitors in Victoria. The plaintiff thereby is granted certain functions and powers. One of them is to act as receiver and manager of solicitors' practices upon Order of this Court. Mr K.J. Power is the general manager of the Department of Professional Standards of the plaintiff and as such acts as receiver and manager pursuant to Orders of the Court. He has been so appointed in this and the 20 other matters before me.

1. It has come to Mr Power's and the plaintiff's notice that at relevant times Mr Power did not have professional indemnity insurance which may have been required under the Act. Mr Power himself did not have such insurance. He and the plaintiff had acted under the belief that the plaintiff's professional indemnity insurance properly comprehended him. The question arose whether it did. In order to bring certainty to the situation the summonses in these matters were filed.

1. The uncertainty arises in the following way. By s.23(3A) of the Act an applicant for a practising certificate must provide satisfactory evidence that the applicant has professional indemnity insurance. Mr Power did not do that because of the belief I have stated in the previous paragraph. If the belief were wrong as a matter of law, s.23(3C) denied effect to the practising certificate issued to Mr Power unless exempted by the Legal Practice Board pursuant to the power contained in s.229A. When the question of uncertainty was raised, Mr Power applied to the Board and on 6 February 2003 the Board resolved to apply the exemption from 1 January 1997 (when the Act came into operation) until 30 April 2003. The question then arose whether the Board's power to grant exemption was only prospective. Opinions from two senior counsel were obtained. One said the Board's power was retrospective and the other (of Mr J.D. Merralls QC) said it was prospective. What is undoubted is this Court's amplitude of power to remedy the situation which was perceived to have arisen: s.250(2) particularly and s.266(3) generally. Thus these applications.

1. It is plain that the plaintiff, and Mr Power, have acted in good faith at all times.  The error, if it be such, was honest and inadvertent.  In all the circumstances I considered it was wholly appropriate to make the Orders sought.  It was proper and appropriate to exercise the Court's power under s.250(2) and I did so.

1. Further matter was brought to my attention on 11 June 2003. By affidavit of Mr Power sworn on 10 June 2003 it appeared that by reason of computer generation the issuance of his practising certificate was not effected in June 2002 for the period 1 July 2002 to 30 June 2003. The matter became known on 13 September 2002 and was remedied on 16 September 2002. Nothing turns on this point.: s.21(3) of the Act. Mr Power first became aware of it on 5 June 2003.

1. Two final matters. First, I am wholly satisfied that the contents of Mr Power's affidavits were at the time of their swearing believed by Mr Power to be true and accurate in all respects. Second, so far as there was a difference of opinion as between counsel on the matters antecedent to these applications, I have had the benefit of examining those opinions and I agree with the analysis by, and opinion of, Mr Merralls QC expressed in his memorandum of 27 May 2003 as to the construction and operation of the relevant provisions of the Act, ss.21, 23 and 229A.