Victorian Legal Services Commissioner v Logan
[2022] VSC 97
•1 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2021 02149
| VICTORIAN LEGAL SERVICES COMMISSIONER | Plaintiff |
| v | |
| NICHOLAS PATRICK LOGAN | Defendant |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 February 2022 |
DATE OF JUDGMENT: | 28 February 2022 (Reasons - 1 March 2022) |
CASE MAY BE CITED AS: | Victorian Legal Services Commissioner v Logan |
MEDIUM NEUTRAL CITATION: | [2022] VSC 97 |
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LEGAL PRACTITIONERS – Striking off the Roll – Principles – Legal Profession Uniform Law s 23(1)(c).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Scotter of counsel | Victorian Legal Services Commissioner |
| For the Defendant | No appearance |
HIS HONOUR:
Introduction
Today I ordered that the name and other particulars of the defendant, NICHOLAS PATRICK LOGAN, be removed from the Roll of persons admitted to the legal profession kept by this Court on the application of the plaintiff, the Victorian Legal Services Commissioner (‘Commissioner’). I further ordered that the defendant pay the Commissioner’s costs. I stated that I would publish reasons for doing so. These are my reasons.
The Commissioner applied pursuant to s 23(1)(c) of the Legal Profession Uniform Law,[1] on the recommendation of the designated tribunal, the Victorian Civil and Administrative Tribunal (‘VCAT’), and did so on the affidavit of Gemma Cannon Richardson sworn 8 June 2021. Ms Richardson is a senior investigator in the Discipline and Suitability Team of the Commissioner.
[1]Legal Profession Uniform Law Application Act2014 (Vic) sch 1.
Ex-parte hearing
The defendant did not appear or take any step in this proceeding. I am satisfied that he was on notice of this hearing.
Initially, a process server was unable to effect service but he deposed to the efforts made to track the defendant down to effect service at a number of different residential and commercial premises. No response was received to messages left on ‘Nick’s voicemail’ on a mobile phone number and no response was received to emails sent to two different addresses. However, the process server did locate the defendant’s father.
A second process server deposed that he ‘served’ the defendant on 23 December 2021 by handing the relevant documents to the defendant’s father, Mr Logan (first name withheld), a male person, apparently above the age of 16 years, at an address in Indented Head. On a prior attendance the process server had encountered Mr Logan snr and found him uncooperative. He deposed to the following circumstances.
At the time of service, I walked to the front door with a view to the left side of the backyard. An unknown male was sitting in a chair on the back lawn. The unknown male asked me, “What do you want?” I replied to the unknown male, “Is Nicholas Patrick Logan here?” The unknown male replied, “Nope.” I then asked, “Is Nicholas Logan’s father here?” The unknown male pointed to someone behind a wall out of sight to me. I walked into the backyard and heard the Defendant’s father tell the unknown male, “Don’t bring him back here Nick.” I asked the Defendant’s father, “Does Nicholas Patrick Logan live here?” The Defendant’s father replied, “Yes, but he isn’t here.” I then said “Do you also live here and can accept documents on his behalf?” The Defendant’s father then replied, “Yeah, but what would happen if I was to just leave the documents to blow away in the wind.” I then handed the Documents to the Defendant’s father, Mr Logan, who appeared to take the documents inside.
In these circumstances, service had not been strictly effected. Before explaining how service was perfected, I note that the process served added:
After service, I checked the Defendant’s social media, more particularly the facebook profile [link identified]. I saw a photograph of the Defendant’s father, which is located on the Defendant’s facebook profile at [link identified]. Now produced and shown to me and set out in pages 203 to 204 of this affidavit is a photograph of the Defendant’s father.
I saw a photograph of the Defendant, which is located on the Defendant’s facebook profile at [link identified]. Accordingly, I believe the unknown male in the chair was the Defendant. Now produced and shown to me and set out in page 205 of this affidavit is a photograph of the Defendant.
Further, counsel for the Commissioner, who has cross-examined the defendant on a prior occasion, identified the photograph of the unknown male in the chair as a photograph of the defendant.
Service was perfected by the order of Efthim AsJ, made 14 February 2022, pursuant to r 6.11 of the Supreme Court (General Civil Procedure) Rules2015 (Vic), that service of the documents was effected on 23 December 2021.
For these reasons, I was satisfied that it was appropriate to hear the application in the defendant’s absence.
Principles
Recently, I set out the relevant principles for striking a practitioner from the Roll in Bolitho v Banksia Securities (No 18).[2] In that case, I exercised the court’s inherent jurisdiction. In essence,
[2][2021] VSC 666, [1395]–[1407].
(a) The court must be satisfied that at the time of the hearing the practitioner is not a fit and proper person to be a legal practitioner and is likely to remain so for the indefinite future;
(b) To be fit and proper, a legal practitioner must be honest, independent, able to judge what ethical conduct is required of them, and then be capable of diligently discharging the responsibilities of their office.[3] A legal practitioner must be ‘possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.;[4]
(c) Whether a practitioner fails to meet these criteria is a fact-sensitive inquiry.[5] In making this evaluation, the court is required to do more than just consider the practitioner’s historical actions.[6] It must also inquire into whether the practitioner has insight into, and fully appreciates, the gravity of his wrongdoing and has demonstrated effective rehabilitation.[7] The court must also consider the connection of the conduct to the practitioner’s fitness, which is to say, to what extent the conduct is simply inconsistent with the privileges associated with further practice.[8]
(d) Dishonesty is common in many circumstances where a practitioner has been struck off. Such conduct is anathema to both public and curial confidence in the profession.
[3]Hughes & Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127, 156.
[4]Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, 76 (‘Sobey’).
[5]Victorian Legal Services Board v Gobbo [2020] VSC 692, [9].
[6]Ibid [10].
[7]A Solicitor v Law Society (NSW) (2004) 216 CLR 253, 275 [37].
[8]Ibid 273–4 [33]–[34].
Counsel for the Commissioner cited MN Legal and Management Consultants Pty Ltd v The Council of the Law Society of New South Wales.[9] This case differed from the present in that the practitioner had significant mental health issues. In that context, Davies J identified that the inherent requirements for assessing the fitness and propriety of a legal practitioner included:
[9][2018] NSWSC 1410.
(a) the ability to perform the day-to-day tasks associated with providing legal services, including the ability to communicate in a professional manner with the courts, law- enforcement agencies and other legal practitioners;
(b) the ability to discharge the legal practitioner's tortious and fiduciary duties to his or her clients, whether arising under their retainer, in tort or in equity;
(c) the ability to discharge the legal practitioner's duties to the court, including:
(i) the duty to be honest and courteous in all dealings in the course of legal practice;
(ii) the duty not to engage in conduct, in the course of practice or otherwise, which is likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice, or bring the profession into disrepute;
(iii) an obligation to obey the law and to comply with court orders.
In the Victorian context, sub-paragraph (c) would also refer to the overarching obligations under the Civil Procedure Act2010 (Vic). In Guss v The Law Institute of Victoria, Maxwell P stated:
It is difficult to overstate the importance in the administration of justice of the paramount duty of a legal practitioner not to mislead the court.[10]
[10][2006] VSCA 88, [39].
It is often inevitable that misleading a fellow practitioner can lead to a court being misled.
Relevant circumstances
Previous Disciplinary Proceedings
The Commissioner relied on six prior disciplinary proceedings as relevant.
In Legal Services Commissioner v Nicholas Logan, on 8 April 2014, VCAT Member Butcher found the defendant guilty of two charges of professional misconduct for failing to comply with the Legal Services Commissioner’s requests for a written explanation and documents. VCAT reprimanded the defendant, fined him $1,000.00 and ordered that he pay the Commissioner’s costs in the sum of $2,000.00.
In Legal Services Commissioner v Logan (Legal Practice),[11] on 16 June 2014, VCAT Senior Member Butcher found the defendant guilty of misconduct at common law for sending a letter containing a threat which would reasonably be regarded as disgraceful or dishonourable. VCAT reprimanded the defendant and ordered that he complete two additional continuing professional development units in the area of ethics and professional responsibility and pay the Commissioner’s costs.
[11][2014] VCAT 345.
In Victorian Legal Services Commissioner v Logan (Legal Practice),[12] VCAT Senior Member Butcher found the defendant guilty of two charges of misconduct at common law for acting, issuing and maintaining proceedings without instructions and conducting litigation without seeking instructions or properly advising the client, and one charge of professional misconduct for allowing dishonest letters to be sent. In the penalty hearing, Victorian Legal Services Commissioner v Logan (Legal Practice),[13] VCAT accepted an undertaking from the defendant as to the manner in which he would practice in the future and ordered that the defendant’s local practising certificate be suspended with effect from 1 September 2016 until 30 June 2017 and that he pay the Commissioner’s costs.
[12][2016] VCAT 544.
[13][2016] VCAT 1193.
In Victorian Legal Services Commissioner v Logan (Legal Practice),[14] VCAT Member Wentworth found the defendant guilty of two charges of professional misconduct and one charge of unsatisfactory professional conduct for making trust account payments to a repairer without notice to a third party factorer/financier. VCAT reprimanded the defendant, fined him $5,000.00 and ordered him to pay the Commissioner’s costs.
[14][2016] VCAT 1963.
In Victorian Legal Services Commissioner v Logan (Legal Practice),[15] Judge Jenkins found the defendant guilty of:
[15][2017] VCAT 189.
(a) four charges of misconduct at common law for causing or allowing the defendant’s law practice to act without seeking instructions or advising two clients;
(b) two charges of professional misconduct within the meaning of the Legal Profession Act 2004 (Vic) for the defendant’s wilful failure to comply with an undertaking given to the Commissioner; and
(c) one charge of professional misconduct for engaging in conduct that adversely affected the provision of legal services by the defendant’s law practice in that letters sent by a non-Australian legal practitioner director of that legal practice, was conduct that was dishonest or alternatively made false and misleading statements.
When imposing penalty, the VCAT Vice President observed:
The proven misconduct of the Respondent is extremely serious. The Respondent has behaved dishonestly in the conduct of his legal practice and in a manner which caused prolonged confusion, inconvenience and cost to the two affected members of the public. The misconduct in this case is seriously aggravated by the fact that he had been previously dealt with by the regulator for similar offending. In failing to act upon the opportunity extended to him in the form of the Undertaking and the leniency of the prior reprimands, the Respondent has demonstrated a flagrant disregard for the most basic obligations placed upon a solicitor towards his clients. He has also demonstrated a contempt for the regulator in wilfully breaching his Undertaking and doing so shortly after such Undertaking was given.[16]
[16]Ibid [55].
The defendant’s practising certificate was cancelled with effect from 1 May 2017 and he was declared:
(a) ineligible to apply for or be granted a new practising certificate before 1 May 2019,
(b) ineligible to apply for or be granted a practising certificate which permitted him to practise as a principal of a law practice before having first practised, for not less than 18 months, under the supervision of a principal of a law practice under an employee practising certificate as an employee solicitor.
The sixth proceeding is the liability hearing in Victorian Legal Services Commissioner v Logan (Review and Regulation)[17] and the penalty hearing, Victorian Legal Services Commissioner v Logan (Legal Practice).[18] The defendant was found guilty on 12 charges. The Commissioner categorised the charges into the following broad groupings:
[17][2017] VCAT 1330.
[18][2018] VCAT 375.
(a) failure to take any or proper instructions from supposed clients;
(b) failure to properly advise the client;
(c) acting while in a position of conflict;
(d) ceasing to act without the client's agreement or proper cause;
(e) making false or misleading statements;
(f) failing to keep proper records.
The charges of making false and misleading statements concerned false or misleading statements:
(a) to an opponent that his law firm had instructions from the supposed client to make an offer to settle the proceeding;
(b) in a file note to give the impression that a conference with a client took place on 10 January 2012;
(c) to the Commissioner by giving the false file note to the Commissioner during the Commissioner's investigation into the respondent's conduct;
(d) to a client in advising him that he would not incur any charges; and
(e) to the Tribunal in a disciplinary hearing into his conduct.
The Tribunal characterised the defendant’s conduct in the following terms:
For any legal practitioner to make false statements is conduct which undermines the legal profession and the public's confidence in the profession generally and, in particular, the administration of justice. False statements made to the profession's regulator during the course of an investigation and to the Tribunal during the course of a hearing into his conduct is of particular seriousness.
It is well established that the legal profession is grounded on fundamental principles of candour and trust. The regulator must be able to rely upon the word of practitioners during the course of carrying out its investigations. This requires a duty of honesty and candour to the Commissioner similar to that owed to the courts.[19]
[19]Ibid [17]-[18] (citations omitted).
In relation to insight and contrition, the Tribunal stated:
Mr Logan has pleaded guilty to all charges. However, in doing so he stated that he did so in order to 'save costs'. This indicates a lack of insight into and acceptance of the wrongfulness of his conduct and although it has shortened the proceedings for which credit is given, it deprives him of the full benefit/credit which might otherwise be given to a plea of guilty.
Mr Logan has at no time expressed any remorse or offered any apology for his conduct either to the Commissioner, the Tribunal or the complainants. Mr Logan has not paid or offered any compensation to Mr Palmieri.
Mr Logan has not co-operated with the Commissioner during the Commissioner's investigation of complaints and indeed has attempted to mislead the Commissioner.[20]
[20]Ibid [22]-[24].
On 14 March 2018, VCAT handed down its penalty decision.[21] Senior Member Butcher ordered that:
[21]Ibid.
(a) the defendant is ineligible to apply for or be granted a new practising certificate before 1 May 2024;
(b) the defendant is to pay compensation in the sum of $32,863.86 to one of the complainants;
(c) the defendant is referred to the Supreme Court of Victoria with a recommendation that his name be struck off the Roll of Practitioners;
(d) Costs.
The VCAT reference to this court was made pursuant to s 23 of the Legal Profession Uniform Law, which states:
23 Removal from Supreme Court roll
(1)The Supreme Court may order the removal of the name and other particulars of a person from the Supreme Court roll, on—
(a) its own motion; or
(b)the recommendation of the designated local regulatory authority; or
(c) the recommendation of the designated tribunal.
VCAT is the designated tribunal.
Commissioner Findings
The Commissioner further relied on seven findings by the Commissioner in addition to the tribunal findings I have described:
(a) In 2010, a reprimand for demanding pre-litigation costs;
(b) In 2013, a reprimand for the use of profane language in correspondence and acting without proper instructions;
(c) In 2013, a reprimand for acting without proper instructions;
(d) In 2013, a reprimand for failing to take proper instructions from his client, or communicate adequately with him, thereby not discovering that his client had provided a false name and identity in an attempt to defraud an insurance company;
(e) In 2013, a reprimand for demanding pre-litigation costs;
(f) In 2013, a reprimand for failing to communicate directly with his client and instead communicating with a panel beater;
(g) In 2014, a reprimand for various breaches of trust account provisions as contained in the Legal Profession Act 2004 (Vic) and the Legal Profession Regulations 2005 (Vic).
Commissioner’s submission
The defendant’s disciplinary history from 2010 to 2018 involved:
(a) findings of professional misconduct involving dishonesty;
(b) Many findings of professional misconduct at common law;
(c) Conduct involving misleading the Commissioner in the course of investigations;
(d) Conduct involving misleading the Tribunal.
Further, the defendant’s failure to comply with orders of the Tribunal to pay costs ordered and, more significantly, to pay the compensation of $32,863.86 ordered on 14 March 2018 in favour of a complainant, is ongoing. This, the Commissioner submitted, is indicative of a lack of respect for the orders and a lack of insight as to the seriousness of his conduct.
Because the defendant did not participate in this proceeding, the material before the court on which the defendant’s ongoing fitness to be a legal practitioner might be assessed did not extend beyond the records of the previous disciplinary matters in VCAT and discipline at the hands of the Commissioner. Significantly, there was no material before the court showing any insight into or appreciation of the gravity of his wrongdoing. There was no material demonstrating rehabilitation, or prospects for rehabilitation. To the contrary, two matters can be noted. First, a full range of penalties have been applied by the Commissioner and VCAT, without prompting the defendant towards rehabilitation. Secondly, the defendant’s conduct in avoiding service of this proceeding and falsely denying his identity to the process server on 23 December 2021, indicated a current lack of fitness to be a legal practitioner.
The defendant has been in practice since December 2002. The Commissioner submitted that the disciplinary findings made against the defendant clearly demonstrated it was appropriate that the defendant be removed from the Roll as unfit to practice, because such findings demonstrated both:
(a) persistent misconduct and dishonesty over many years; and
(b) an inability over a considerable time to conduct his legal practice in accordance with the requirements and standards identified in the cases.
Conclusion
I am comfortably persuaded that it is necessary to remove the defendant from the Roll to protect the public from his misconduct and dishonesty and to promote community confidence in the proper administration of justice. The defendant is not a fit and proper person to remain as a legal practitioner, because the evidence before me demonstrated that he has no commitment to honesty, independence and standards of conduct reasonably expected in order to ensure that, as a solicitor, he respects and maintains the proper administration of justice. His conduct in relation to the proceedings against him in the Tribunal persuaded me he is unable to judge the ethical standard that his conduct must meet, and he is incapable of diligently discharging the responsibilities of the office of solicitor.
This incapacity threatens, and will continue into the foreseeable future to threaten, the integrity of the proper administration of justice. As set out above, a legal practitioner must be ‘possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.’[22] Mr Logan has not met, and is unlikely to meet, this standard.
[22]Sobey (1979) 22 SASR 70, 76.
Further, the material shows a systematic practice. It was not evidence of some isolated or passing departure from proper professional standards amounting to something less than proved unfitness.
I could not, on the material before the court, be satisfied that the defendant has insight into and a full appreciation of the gravity of his wrongdoing. There is no demonstration of any rehabilitation, let alone effective rehabilitation. The defendant poses a direct and substantial risk to the public and to other members of the profession, each of whom both expect and rely on a system of professional co-operation and trust in dealings with a solicitor.
This jurisdiction is entirely protective, to ensure the integrity of the administration of justice in this State. The name and other particulars of the defendant, NICHOLAS PATRICK LOGAN, must be removed from the Roll of persons admitted to the legal profession kept by this court.
Costs are in the discretion of the court and the usual rule that costs follow the event is apposite.
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