Victorian Legal Services Commissioner v Spaulding

[2016] VSC 162

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:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2016
DATE OF JUDGMENT:	18 April 2016
CASE MAY BE CITED AS:	Victorian Legal Services Commissioner v Spaulding
MEDIUM NEUTRAL CITATION:	[2016] VSC 162

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LEGAL PRACTITIONERS – Application for removal of practitioner’s name from the local roll of practitioners – Recommendation by the Victorian Civil and Administrative Tribunal – Practitioner overseas – Not served with originating motion – Application that the Court dispense with the requirement of service – Application refused – Proceeding adjourned for one year – Legal Profession Act 2004 s 4.4.17, Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 r 14.13(4) and Supreme Court (General Civil Proceedings) Rules 2015 rr 2.04, 6.02.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Snow	Solicitor to the Victorian Legal Services Commissioner
For the Defendant	No appearance

HIS HONOUR:

1. The Victorian Legal Services Commissioner (the Commissioner), by originating motion, seeks an order that the defendant’s (Mr Lewis Spaulding’s) name be removed from the Supreme Court roll pursuant to r 14.13 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. The application follows a recommendation by the Victorian Civil and Administrative Tribunal (‘the VCAT’) made on 24 December 2015 that Mr Spaulding’s name be removed from the Local Roll of Practitioners. Rule 14.13 required that the Commissioner serve the originating motion seeking the order for removal of the practitioner’s name and a copy of the affidavit on the practitioner as soon as was practicable after the making of that recommendation. The originating motion is an originating process and therefore is to be personally served.[1]

   [1]Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 6 r 2.

1. The Commissioner is unable to locate Mr Spaulding who, in May 2014 left Australia. The Commissioner therefore seeks an order pursuant to r 2.04 of the Supreme Court (General Civil Procedure) Rules 2015 dispensing with compliance with the requirement for service. The VCAT order that included the recommendation stated:

2.Mr Spaulding is not to be granted any category of practising certificate before 1 January 2021.

3.Prior to obtaining any principal practising certificate in the future, Mr Spaulding must complete a period or periods amounting in aggregate to 18 months as an employee, before being eligible to apply for a principal practising certificate. This is in addition to the period of 18 months referred to in Order 4 (b) of the Tribunal of 17 December 2013.

4.The Tribunal recommends to the Supreme Court that Mr Spaulding’s name be removed from the Local Roll of Practitioners.[2]

[2]See Victorian Legal Services Commissioner v Spaulding [2015] VCAT 2048.

1. As a result of that recommendation, the Commissioner was required to apply forthwith to the Court for the removal of the name of Mr Spaulding from the role of practitioners.

1. The VCAT had found Mr Spaulding guilty of seven charges of professional misconduct under the Legal Profession Act 2004. In general terms, those charges consisted of Mr Spaulding’s behaviour towards other lawyers and clients, and his handling of particular matters, including acting when he had a conflict of interest, his failure to provide a written explanation for his conduct or any supporting documents in respect of a particular complaint in response to a statutory demand by the Commissioner, and his failure to comply with previous orders of the VCAT. The Commissioner had brought earlier proceedings against Mr Spaulding and penalties had been imposed on him. He had not complied with the orders imposing the penalties.[3]

   [3]Legal Services Commissioner v Spaulding [2013] VCAT 2144; Legal Services Commissioner v Spaulding [2014] VCAT 198.

1. Mr Spaulding did not participate in the VCAT proceeding. The evidence suggests that he left Australia in May 2014. It is unnecessary to set out details of the affidavits sworn by the solicitor for the Commissioner, but they establish that the Commissioner has made all reasonable endeavours to locate Mr Spaulding. At present, there is no practicable way of ordering substituted service on Mr Spaulding.

1. The Commissioner, through the comprehensive affidavits of its solicitor and the submissions of counsel, amply fulfilled the duties of a model litigant. Counsel informed me that he was unable to cite any similar proceeding in which the requirement of service had been dispensed with. I do not regard the provisions of the Family Law Rules, to which reference was made, as assisting because specific rules have been enacted in that jurisdiction to govern the exercise of the discretion to dispense with service.

1. The Commissioner submitted that it is not certain that he would soon learn of Mr Spaulding’s return should he return to Australia. While he is overseas, he presents no danger to clients or potential clients in Victoria or Australia. It was submitted, however, that the recommendation of VCAT needed to be enforced so that its punitive features has effect.

1. I am not satisfied that it is appropriate to dispense with the requirements for service of the originating process on Mr Spaulding. An application to remove a practitioner’s name from the roll of practitioners is a serious matter. The VCAT formed the view that Mr Spaulding had been adequately notified of the proceedings before it and that ‘Mr Spaulding has arranged things such that he cannot be contacted, and determined not to participate in the disciplinary proceeding’. But, it would be unwise for the Court to speculate whether he would wish to participate in the proceedings in this Court. This is a different proceeding which may have separate and serious consequences for him. In determining whether to remove a person’s name from the roll of practitioners, the Court must assess the submissions made by the Commissioner and the practitioner, if he appears, and must consider any relevant evidence. I do not consider that the Court should attempt to carry out that task in this case, unless it is satisfied that Mr Spaulding is aware of the proceeding. I am not so satisfied.

1. Mr Spaulding does not have a practising certificate and cannot apply for one until 1 January 2021. In all the circumstances, I do not consider that it is appropriate to exercise the Court’s discretion to dispense with the requirements for service.

1. The Court has wide jurisdiction to stay proceedings when it is appropriate to do so in the interests of justice. But I do not consider that a stay is an appropriate order at present. No authority was cited where a temporary or other stay has been granted in circumstances like these. It is appropriate to grant a temporary stay, generally, when there is some reason why a proceeding should not continue for a particular time, for example when there are two sets of proceedings on foot raising the same issue, or when costs ordered to be paid in an earlier proceeding remain unpaid.[4]. A temporary stay is less suitable when a proceeding cannot proceed because it has not been served. There is no certainty that Mr Spaulding will ever be served with the originating process. I have taken into account that the Commissioner had a statutory duty to commence the proceedings. But these proceedings may have serious consequences for Mr Spaulding.

   [4]See the cases discussed in LexisNexis Butterworths, Civil Procedure: Victoria, vol 1 [I 23.01.111–112].

1. This proceeding was commenced only on 7 April 2016, although attempts to serve Mr Spaulding with documents relating to the VCAT proceedings commenced in October 2014. 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. An appropriate period of adjournment is one year with liberty to apply being reserved.

1. 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.

1. I therefore refuse the application to dispense with the requirement for service and will adjourn the plaintiff’s summons to the Common Law Duty Judge sitting in the Practice Court on 1 May 2017 and reserve liberty to apply.