Viscariello v Legal Profession Conduct Commissioner - [2015] SASC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER
[2015] SASC 4
Reasons for Decision of The Honourable Justice Parker
27 January 2015
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
Interlocutory application of plaintiff seeking that the Court restrain the Commissioner or his delegate from instructing Mr Harris QC as counsel and that Mr Harris not act as counsel for the Commissioner in the matter. In the primary action, the plaintiff seeks orders compelling the Commissioner to investigate the conduct of certain legal practitioners, including personnel or former personnel of a firm, Minter Ellisson. Mr Harris is frequently instructed by the firm of Minter Ellison.
Whether the proper administration of justice requires that Mr Harris should be prevented from acting in the present matter.
Held (Parker J):
Application dismissed. The fair-minded, reasonably informed member of the public would not conclude that the proper administration of justice requires that Mr Harris should be prevented from acting in the present matter so as to protect the integrity of the judicial process and the due administration of justice, including the appearance of justice.
Legal Practitioners (Miscellaneous) Amendment Act 2013 Schedule 2, cl 13; Legal Practitioners Act 1981 s 82; South Australian Bar Association Rules Rule 21, referred to.
Coppola v Nobile [2012] SASC 42; Scallan v Scallan [2001] NSWSC 1078; Kallinicos v Hunt (2005) 64 NSWLR 561; Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 135 ALR 753; IOOF Australia Trustees Ltd v SEAS SAPFOR Forests Pty Ltd (1999) 78 SASR 151; Gascor v Allicott [1997] 1 VR 332; Setka v Gregor [2011] FCAFC 64; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; Grimwade v Meagher [1995] VR 446; Blong Ume Nominees Pty Ltd v Semweb Nominees Pty Ltd [2013] SACC 180; Kooky Garments Ltd v Charlton [1994] 1 NZLR 587; Mitchell v Burell [2008] NSWSC 772, considered.

VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER
[2015] SASC 4

PARKER J: The plaintiff, John Viscariello, has made an interlocutory application seeking that the Court restrain the Legal Profession Conduct Commissioner (“the Commissioner”) or his delegate from instructing Mr Andrew Harris QC as counsel in this judicial review application and that Mr Harris QC not act as counsel for the defendant in the matter.
The proceedings were first instituted against the Legal Practitioners Conduct Board. By virtue of the transitional provisions contained in clause 13 of Schedule 2 to the Legal Practitioners (Miscellaneous) Amendment Act 2013 the Commissioner has assumed the functions of the Board with effect from 1 July 2014. The Commissioner thus now stands in the place of the Board and has been substituted as defendant.
The plaintiff is seeking orders in the nature of mandamus against the Commissioner compelling him to make an enquiry into the conduct of certain legal practitioners and also an order compelling the Commissioner to seek the written consent of the Attorney-General to the laying of charges against those practitioners outside the time limit otherwise fixed by s 82 of the Legal Practitioners Act 1981.
Permission to proceed with the judicial review application was granted by Nicholson J on 16 April 2014. The trial is to be conducted by Nicholson J. However, a preliminary question concerning the delegation of relevant powers and functions by the Commissioner to Mr Tim Bourne, an Adelaide solicitor, has been referred to me for determination. The plaintiff has sought the order to restrain Mr Harris QC from acting as counsel in relation to both the preliminary question concerning the validity of the delegation and also the claim for primary relief.
Whether Mr Bourne was entitled to appear
The basis of the complaint made by the plaintiff in relation to the Commissioner, Mr Greg May, is that in his former capacity as chief operating partner of Minter Ellison he had not accepted the validity of the complaints made by the plaintiff about the actions of that firm.
Mr May has disqualified himself from acting as Commissioner in relation to this matter and, at least to that extent, has delegated his powers and functions to Mr Bourne.
Argument about the validity of the delegation from the Commissioner to Mr Bourne is to be heard by the Court in the near future. If the delegation is valid, Mr Bourne will stand in the shoes of the Commissioner and will be capable of exercising the powers and carrying out the functions of the Commissioner to the extent authorised by the delegation.
The plaintiff contended that Mr Bourne was not entitled to appear before the Court in relation to the application for the disqualification of Mr Harris. I determined that I would permit Mr Bourne to appear.
While Mr Bourne is a legal practitioner, he was effectively appearing as a self represented litigant. That is because he appeared as the delegate of the Commissioner (and in that respect stands in the shoes of the Commissioner as defendant) rather than as a practitioner acting on the instructions of the Commissioner.
Unless and until the Court determines that the delegation from the Commissioner to Mr Bourne was not valid and issues an order in the nature of certiorari quashing the delegation, it remains valid and effective. Mr Bourne is entitled to exercise the powers and functions delegated to him by the Commissioner until such time as the delegation may be quashed by the Court. Those functions apparently include the defence of legal proceedings instituted against the Commissioner (or his predecessor, the Board).
The plaintiff's contentions
While the submissions made by the plaintiff were wide ranging, I consider his primary point to be as follows. Mr Harris QC is frequently instructed by the firm of Minter Ellison to act on behalf of it is clients in relation to defamation proceedings. Members and employees, or former members and former employees, of Minter Ellison are included amongst the practitioners whose conduct the plaintiff says should be investigated by the Commissioner (or his delegate).
I must stress that there has been no suggestion by the plaintiff that Mr Harris has in any way acted improperly (other than the complaint that he should not have accepted the brief). However, the plaintiff contends that a reasonable observer might conclude that that there is a risk that Mr Harris would not do anything which might adversely affect his ongoing relationship with Minter Ellison so as to avoid jeopardising the prospect of him being instructed by that firm to act on behalf of its clients in future.
Mr Bourne informed the Court that Mr Harris does receive briefs in defamation and medical negligence proceedings from Minter Ellison. Mr Harris is currently appearing before this Court on the instructions of Minter Ellison to defend Advertiser Newspapers Ltd in a long running part heard defamation trial. Mr Bourne noted in his submissions that Mr Harris has not acted for the firm of Minter Ellison (as distinct from its clients). The plaintiff did not contend otherwise.
The plaintiff also suggested that there was a risk that Mr Harris may breach his duty of confidence by improperly disclosing information to Minter Ellison about the investigation he says should be conducted by a delegate of the Commissioner. He suggested that might occur in conversation when Mr Harris was being instructed by Minter Ellison personnel.
A further suggestion by the plaintiff was that Mr Harris should be disqualified as his advice to Mr Bourne may be called into question in the judicial review proceedings before Nicholson J. The plaintiff suggested that he might call Mr Harris as a witness in relation to the advice he had provided.
Consideration
The circumstances in which the Court will restrain a practitioner from continuing to act for a party to proceedings were considered by Stanley J in Coppola v Nobile.[1] His Honour’s judgment includes a helpful survey of the relevant authorities.
[1] [2012] SASC 42.
Stanley J identified three classes of case in which the court will restrain a practitioner from acting in a matter. Only the third of those three classes is relevant to this application. That class comprises cases where the court has exercised its supervisory jurisdiction to restrain a practitioner from acting in a matter where their conduct was so offensive to common notions of fairness and justice that they should, as officers of the court, be restrained from acting.
In Scallan v Scallan[2] Windeyer J held that the court should intervene where a practitioner has an interest in the result of an action “additional to his interest in doing his best for a client to have success”. The plaintiff has suggested that Mr Harris has such an additional interest, ie his interest in being briefed by Minter Ellison in future.
[2] [2001] NSWSC 1078 at [10].
The principles applied when determining whether the Court should exercise its inherent jurisdiction to restrain a practitioner from acting in a matter were summarised by Brereton J in Kallinicos v Hunt:[3]
·    ... the court always has an inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its processes in aid of the administration of justice.
·    The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
·    The jurisdiction is to be regarded as exceptional and is to be exercised with caution.
·    Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
·    The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.
[Citations omitted].
[3] [2005] NSWSC 1181 at [76]; (2005) 64 NSWLR 561 at 582.
I consider that to be an accurate summary of the relevant principles.
The issue to be decided is whether the fair-minded, reasonably informed member of the public referred to by Brereton J in Kallinicos would conclude that the proper administration of justice requires that Mr Harris should be prevented from acting in the present matter so as to protect the integrity of the judicial process and the due administration of justice, including the appearance of justice.
The test of what a “fair-minded, reasonably informed member of the public” might conclude is also applied when a court determines if there was a reasonable apprehension of bias so as to disqualify a judge or other decision-maker on the ground of apprehended bias. Thus, cases dealing with that issue are of assistance in this matter.
A crucial issue is the level of knowledge that is to be attributed to the fair-minded, reasonably informed member of the public. The relevant principles have been discussed by Aronson and Groves in Judicial Review of Administrative Action (5^th ed, 2013) at [9.90] in the context of the disqualification of judges based on past work as a barrister. The learned authors stated:
The observer is, however, credited with an understanding of barristers’ working conditions in general, at least those relating to the cab-rank principle, their general independence and distance from their clients, their readiness to disagree with those who might be their closest professional and personal friends[4], to agree with arguments from colleagues for whom they have little respect[5] and to make strong statements on the instructions of others.[6]
[4] Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 135 ALR 753 at 767.
[5] IOOF Australia Trustees Ltd v SEAS SAPFOR Forests Pty Ltd (1999) 78 SASR 151 at 183.
[6] Gascor v Allicott [1997] 1 VR 332; Setka v Gregor [2011] FCAFC 64 at [12] – [13].
The level of knowledge to be attributed to the hypothetical observer was considered by the New South Wales Court of Appeal in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd.[7] The issue before the court was whether a judge should be disqualified because he had previously often appeared as counsel for the defendant, Caltex. Priestly and Clarke JJA held (with Kirby P dissenting) that the hypothetical bystander could not be regarded as reasonable if they had not informed themself as to the way in which barristers work[8].
[7] (1988) 12 NSWLR 358.
[8] Ibid at 380 – 381.
The hypothetical independent observer must be taken to understand the ethical principles under which a barrister, such as Mr Harris, must operate and the high importance attached to those principles by members of the legal profession and the courts. The observer must know that a barrister is required always to act in the best interests of his client whilst also acting in accordance with strict ethical obligations and the law.
The observer must also be taken to understand that the “cab rank principle”[9] requires a barrister, such as Mr Harris, who is available and not disqualified by a conflict or on other grounds to take a brief in relation to a matter that is within his or her professional competence and where the fees are acceptable. Upon taking the brief, the barrister must act in accordance with the principles that I have referred to in the preceding paragraph.
[9] Rule 21 of the SA Bar Association Rules.
The observer must also know that Minter Ellison understand that Mr Harris is required by the cab rank principle to accept the brief from Mr Bourne as delegate of the Commissioner unless one of the exceptions to that principle applies.
The hypothetical observer must also be aware that Mr Harris has acted for clients of Minter Ellison rather than the firm itself. They must also know that clients who may have considerable experience with litigation, particularly in specialised fields such as defamation and medical negligence (ie publishers and professional indemnity insurers), may express a firm view as to their preferred counsel based on prior satisfactory experience. Thus, the views of the solicitors may not necessarily determine the choice of counsel.
The plaintiff sought to draw support from Grimwade v Meagher[10] where counsel was ordered to be disqualified because the Supreme Court of Victoria found that there was a real and sensible risk of a lack of objectivity by counsel and a real risk of unfairness or disadvantage to the plaintiff. Mandie J described the circumstances as being "unique, extraordinary and exceptional”.[11] Counsel had been criticised very strongly by the Victorian Court of Criminal Appeal about his conduct during an earlier criminal trial of "exceptional and probably unexampled length”[12] where the plaintiff had been defendant and which related to essentially the same issues. In that case, unlike the present matter, the grounds for disqualification were justified by the past conduct of counsel.
[10] [1995] VR 446.
[11] Ibid at 454.
[12] Ibid at 448.
The plaintiff also placed reliance upon the decision of Judge Dart in Blong Ume Nominees Pty Ltd v Semweb Nominees Pty Ltd,[13] where a practitioner was disqualified because he had a personal interest in the subject matter of the litigation, and suggested that Mr Harris has such an interest. I consider that Mr Harris has no personal interest in the outcome of this judicial review merely because he has been briefed by Minter Ellison in the past and may hope for further work.
[13] [2013] SACC 180.
The fact that Mr Harris has been instructed by Minter Ellison in other matters, and might desire to be briefed again, does not provide a basis upon which an independent and properly informed observer might reasonably conclude that he would not act strictly in accordance with his ethical and professional obligations. There is also no reasonable basis for a properly informed observer to conclude that the advice provided by Mr Harris or how he conducts the defence of the proceedings might be influenced by partiality towards Minter Ellison or persons connected with that firm in the hope of gaining future work.
There is also absolutely no basis upon which a reasonable observer might conclude that Mr Harris would not carefully observe his professional duty to maintain the confidence of information entrusted to him.
The plaintiff did not suggest that legal professional privilege had been waived in relation to advice that may have been provided by Mr Harris in relation to these proceedings. Therefore his suggestion that he might call Mr Harris as a witness to ascertain the advice he has provided, and thereby potentially disqualify him from acting as counsel, plainly lacks any proper foundation. Moreover, for the reasons that follow, what advice may have been given by Mr Harris is not in issue in these proceedings
The suggestion by the plaintiff that Mr Harris may be called upon to defend advice that he has provided fails to recognise that the issue to be decided by the Court is whether or not an order in the nature of mandamus should be made to compel the Commissioner to investigate the matters that concern the plaintiff. What advice Mr Harris may or may not have given in relation to the proceedings, and whether any such advice has been followed, is not an issue before the Court. The reliance by the plaintiff upon Kooky Garments Ltd v Charlton[14] and Mitchell v Burell[15] in support of this submission is misplaced. In those two cases a central issue to be decided by the court was the correctness of advice provided by a practitioner to a client.
[14] [1994] 1 NZLR 587.
[15] [2008] NSWSC 772.
I have taken into account the observations made by Brereton J in Kallinicos that the jurisdiction of the court to restrain a practitioner from acting is to be regarded as exceptional and to be exercised with caution and that due weight should be given to the public interest in a litigant not being deprived of the practitioner of its choice without due cause.
I dismiss the interlocutory application seeking that the Court orders that the Commissioner be restrained from instructing Mr Harris QC in relation to these proceedings and that Mr Harris not act as counsel for the defendant