Victorian Legal Services Commissioner v Spaulding
[2017] VSC 444
•3 August 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
S CI 2016 01258
| VICTORIAN LEGAL SERVICES COMMISSIONER | Plaintiff |
| v | |
| LEWIS JAMES SPAULDING | Defendant |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 August 2017 |
DATE OF RULING: | 3 August 2017 |
CASE MAY BE CITED AS: | Victorian Legal Services Commissioner v Spaulding |
MEDIUM NEUTRAL CITATION: | [2017] VSC 444 (Revised 9 August 2017) |
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LEGAL PRACTITIONERS – Application for removal of practitioner’s name from the Victorian roll of practitioners – Application that the Court dispense with the requirement of service – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 r 14.13(4) – Supreme Court (General Civil Proceedings) Rules 2015 rr 2.04, 6.02
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Julian Snow | Luke Priday, Victorian Legal Services Board & Commissioner |
| For the Defendant | No appearance |
HER HONOUR (ex tempore ruling):
On 24 December 2015, the Victorian Civil and Administrative Tribunal found Mr Spaulding guilty of seven charges of professional misconduct under the Legal Profession Act 2004 and recommended that Mr Spaulding’s name be removed from the local roll of practitioners.[1] In broad terms, the charges concern Mr Spaulding’s behaviour towards other lawyers and clients, acting when he had a conflict of interest, failure to provide a written explanation for his conduct or any supporting documents in relation to a particular complaint and failure to comply with Tribunal orders.
[1]Victorian Legal Services Commissioner v Spaulding [2015] VCAT 2048 (‘Tribunal’s decision’).
Mr Spaulding did not participate in the Tribunal proceeding. It seems Mr Spaulding left Australia in May 2014 en route to Hong Kong and, so far as anyone is aware, he has never returned.
On 7 April 2016, the Victorian Legal Services Commissioner filed an originating motion and summons seeking to have the Court determine whether Mr Spaulding should be removed from the Supreme Court roll, pursuant to rule 14.13 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. Rule 14.13(4) requires the Commissioner to serve the originating motion and a copy of the supporting affidavit on the defendant ‘as soon as is practicable’.
On 11 April 2016, the Commissioner made an application for the requirement in rule 14.13(4) to be dispensed with, because Mr Spaulding could not be located. Justice Ginnane adjourned the Commissioner’s summons to May 2017, stating:[2]
The appropriate course is to adjourn the proceeding to see if Mr Spaulding can be served or, a means of ordering substituted service, acceptable to the Court, can be proposed … If personal service has not occurred or if substituted service is still not possible at the end of one year, the Court may have to determine if it is appropriate to allow the proceeding to continue.
[2]Victorian Legal Services Commissioner v Spaulding [2016] VSC 162 [11], [12].
In an affidavit sworn on 18 April 2017, solicitor for the Commissioner, Luke Daniel Prowse Priday, deposed that the Commissioner had been unable to locate and serve Mr Spaulding. Mr Priday deposed that on 24 February 2017 he had instructed an agency, International Recovery Solutions Pty Ltd, to find Mr Spaulding. In March 2017, the agency reported that its searches for Mr Spaulding in Hong Kong and the United States had been unsuccessful, that family members had stated they were estranged from Mr Spaulding and did not know where he was and that former colleague, Mr Ian Robertson,[3] was in contact with Mr Spaulding but would not disclose Mr Spaulding’s whereabouts. Mr Priday deposed that he contacted Mr Robertson directly by phone, and Mr Robertson told him that it was incorrect that he had Mr Spaulding’s contact details. He had stated that while Mr Spaulding periodically contacted him, he had no way of contacting Mr Spaulding.
[3]Incorrectly described as Mr Ian ‘Robinson’ in the agency report.
The matter came on before Justice Cameron on 1 May 2017. It was further adjourned to allow the Commissioner to serve on Mr Robertson by both email and post, a copy of the Tribunal’s decision, the Originating Motion dated 7 April 2016, the affidavit of Shifra Leah Cohen made on 8 April 2016 and the ruling of Justice Ginnane.[4]
[4]Victorian Legal Services Commissioner v Spaulding [2016] VSC 162.
In an affidavit sworn on 1 May 2017, Mr Priday confirmed that these documents had been sent to Mr Robertson by email and by post.
On 10 May 2017, upon the return of the matter, Justice Cameron ordered that copies of the Originating Motion and the affidavit made by Shifra Leah Cohen affirmed on 31 March 2016 be sent to the Facebook account of Mr Spaulding’s half-sister Sonja Johnson, to the email address of Mr Spaulding’s daughter, Sarah Anderson, to the email address of his ex-wife, Sue Anderson, and to the postal address of Mr Spaulding’s brother, Robert Spaulding.
In an affidavit sworn on 23 May 2017 and a supplementary affidavit sworn on 24 May 2017, Mr Priday has deposed that Justice Cameron’s order has been complied with. He has deposed that only one of the persons to whom the documents were sent responded in any way shape or form. That person questioned why she was being sent the material as she had not seen the person, who she called ‘Lewis’, in years.
After this long and difficult process, I am satisfied that the Commissioner has taken every possible step to locate Mr Spaulding so as to effect personal service or to find a means by which substituted service might be effected. I am satisfied that it has been, and will continue to be into the foreseeable future, impossible to comply with the service requirement in rule 14.13(4) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 either by effecting personal service or by way of substituted service.
In the meantime, it is important that the regulatory regime governing the conduct of Australian lawyers be enforced and be seen to be enforced. Given the proven conduct of Mr Spaulding, the recommendation of the Tribunal and the length of time since the charges against him were heard and determined and the recommendation of the Tribunal was made, the Commissioner’s application to have him removed from the Supreme Court roll should be allowed to progress to hearing and determination by the Court without further delay.
I am therefore content to dispense with the requirement in rule 14.13(4) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 and will so order.
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