Walles v VLSC
[2022] VSC 435
•8 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 04802
| Between: | |
| SHIMON ELIYAHU WALLES | Plaintiff |
| -and- | |
| VICTORIAN LEGAL SERVICES COMMISSIONER | First Defendant |
| -and- | |
| BREE KNOESTER | Second Defendant |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 November 2021 |
DATE OF JUDGMENT: | 8 August 2022 |
CASE MAY BE CITED AS: | Walles v VLSC |
MEDIUM NEUTRAL CITATION: | [2022] VSC 435 |
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JUDICIAL REVIEW — Where, following settlement of SW’s civil action, SW’s solicitor claimed solicitor/client costs in excess of amount specified in conditional costs agreement — Where SW complained to VLSC about solicitor concerning costs and conduct matters — Where VLSC decided to cease dealing with costs complaint and that disciplinary complaint would be closed — Where SW seeks certiorari in respect of VLSC’s decisions — Whether decisions amenable to certiorari — Whether decisions have discernible or apparent legal effect upon SW’s rights — Where SW alleges that VLSC’s decisions affected by illegality, bad faith, bias or apprehended bias, factual errors, absence of evidence, failure to investigate allegations of non-disclosure, failure to act compatibly with human rights, failure to take account of relevant considerations — Whether any grounds established — Application dismissed — Legal Profession Uniform Law.
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| Appearances: | Counsel | Solicitors |
| For the Plaintiff | In person | N.A. |
| For the First Defendant | Mr R Kruse | Victorian Legal Services Commissioner |
| For the Second Defendant | Mr T Smyth | Moray & Agnew |
HIS HONOUR:
OVERVIEW
While a student at Yeshiva College, Shimon Eliyahu Walles was sexually assaulted on multiple occasions by a rabbi, David Kramer. Some years later, after being extradited to Victoria from the United States of America, Rabbi Kramer was convicted at the County Court and sentenced to imprisonment for indecently assaulting several students of the college.
Mr Walles brought a proceeding for damages against the college in this Court. He was traumatised by the sexual abuse. It has had a profoundly damaging impact on his life.
The civil action settled following a mediation in September 2018. Among the terms of settlement was that the college pay Mr Walles $540,000, plus costs and disbursements.[1]
[1]Under the terms of settlement, the “agreed sum” (which included the payment of $540,000 plus costs and disbursements) was to be “kept in strict confidence” by the parties, “except to the extent that disclosure is required by law”. In order to make his complaint to Victorian Legal Services Commissioner, and in making his application to this Court, it was necessary for Mr Walles to disclose the agreed sum.
On 13 September 2019, Mr Walles made a complaint to the Victorian Legal Services Commissioner (“the VLSC”) against Bree Knoester, his former solicitor. Ms Knoester, who was then a solicitor at Adviceline Injury Lawyers, had been engaged to represent Mr Walles in his action for damages. The complaint to the VLSC was generally described as including a costs dispute and conduct issues. It constituted a mixed complaint containing both a “consumer matter” and a “disciplinary matter”, within the meaning of ss 269, 270 and 271 of the Legal Profession Uniform Law[2] (“the Uniform Law”).
[2]See Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic).
On 24 September 2020, the VLSC decided to cease dealing with the consumer aspect of the complaint and that the disciplinary aspect of the complaint would be closed. More detailed reasons were given for those decisions, which I shall summarise below.
By an originating motion for judicial review, Mr Walles seeks an order in the nature of certiorari setting aside the VLSC’s decisions.[3] The originating motion raises several allegations against the VLSC, which I shall detail shortly.
[3]While Mr Walles does not, in the originating motion, seek a corresponding order in the nature of mandamus, it was unclear to me whether, in truth, he might be seeking such an order as well. However, given that the application is to be dismissed, that uncertainty need not be resolved.
Mr Walles represented himself on this application. It is obvious that his life has been forever marred by the sexual abuse he suffered. As his grounds and submissions show, Mr Walles also feels deeply that he has been wronged by Ms Knoester, and in turn by the VLSC. While he is neither a lawyer nor legally trained, Mr Walles is an articulate man, who argued his case with great passion and conviction. As I sought to explain to him at the hearing, however, many of his arguments tended to invite merits review of the VLSC’s decisions. At times, he implored me to go even further and to substitute my own decision for that of the VLSC, something this Court has no power to do on an application for judicial review. In the end, even when his grounds were framed in ways that better fitted within the strictures of judicial review, none of them could succeed.
Accordingly, and for reasons that follow, Mr Walles’s application must be dismissed.
FACTUAL BACKGROUND
Upon Ms Knoester’s engagement in June 2018, Adviceline provided Mr Walles with a conditional costs agreement estimating solicitor/client costs payable by him, if the matter settled at mediation, at $40,000 (comprising $30,000 for professional fees and $10,000 for disbursements).
Following settlement, Adviceline informed Mr Walles that solicitor/client costs were approximately $65,000, but that they were prepared to reduce that amount to $52,500. Adviceline sought Mr Walles’s agreement to deduct that amount from the settlement sum, but informed him that, if he did not agree, the solicitor/client costs would be taxed. Mr Walles did not agree.
By May 2019, no agreement having been reached by the parties to the damages action as to party/party costs, Adviceline filed a summons in the Costs Court for taxation of those costs. In August 2019, the party/party costs were resolved at mediation in the amount of $380,000. This figure also included costs for fees incurred by other solicitors engaged by Mr Walles before he engaged Adviceline.
On 30 September 2019, Ms Knoester applied to the Costs Court for a taxation of solicitor/client costs. She provided Mr Walles a bill in taxable form for the total professional costs and disbursements incurred by Adviceline. That application was placed on hold while the complaint to the VLSC was on foot. The total professional costs and disbursements said to be incurred by Adviceline (including solicitor/client and party/party costs) amounted to just over $216,790.
In his complaint to the VLSC, Mr Walles alleged that Ms Knoester:
a) issued a bill for costs and disbursements exceeding the total legal costs disclosed in the conditional costs agreement;
b) failed to disclose barristers’ fees, and briefed senior and junior counsel without Mr Walles’s consent;
c) filed a summons for taxation of party/party costs without Mr Walles’s instructions, knowledge or consent, and after he had advised her to cease acting;
d) did not inform Mr Walles about the mediation of the party/party costs matter, and that a costs order was made against him when he failed to attend;
e) pressured Mr Walles to settle the party/party costs matter; and
f) engaged a costs consultant without Mr Walles’s instructions, knowledge or consent.
Upon receipt of the complaint in September 2019, the VLSC’s Assessment and Resolutions Team notified Ms Knoester of the complaint, and she provided information and documents in response.
In the first instance, the Assessment and Resolutions Team gave priority to the consumer matter raised by the complaint (in accordance with s 271 of the Uniform Law), and sought to resolve that costs dispute by informal means (in accordance with s 287). Those attempts were unsuccessful.
In December 2019, the VLSC’s Discipline and Suitability Team took over the management of the complaint. This team conducted a preliminary assessment of the complaint (in accordance with s 276), in the course of which the VLSC obtained further information and documents from Mr Walles and Ms Knoester.
In March 2020, the VLSC notified Mr Walles in a “foreshadowing letter” that the VLSC’s preliminary view was that there was insufficient evidence to establish that the conduct matters raised in the complaint would amount to a disciplinary breach.
After giving Mr Walles further opportunities to provide information and make submissions in response to the foreshadowing letter, and after assisting the parties in further attempts to resolve the matter, the VLSC completed the preliminary assessment of the complaint.
On 24 September 2020, the VLSC (by the Commissioner, Fiona McLeay, personally) decided:
a) that the VLSC was to cease dealing with the consumer aspect of the complaint in accordance with s 293 of the Uniform Law, on the basis that the informal attempts at resolving the costs dispute were unsuccessful and that the total amount of legal costs still in dispute exceeded $10,000, and noting that, in circumstances where Ms Knoester had applied for taxation of solicitor/client costs, the Costs Court was the appropriate forum to deal with the consumer matter; and
b) that the disciplinary aspect of the complaint be closed in accordance with s 277(1)(h) of the Uniform Law, on the basis that, having considered the complaint, the VLSC was of the view that the complaint required no further investigation.
GROUNDS OF REVIEW
Mr Walles’s originating motion makes several allegations against the VLSC. Mr Kruse, who appeared for the VLSC in this Court, helpfully distilled those allegations into the following propositions or grounds of review:
Ground 1: The VLSC’s decision is contrary to the VLSC’s objectives (paragraph 3 of the originating motion).
Ground 2: The VLSC’s decision was made “illegally” and in bad faith (paragraphs 4 and 5).
Ground 3: The VLSC’s decision is affected by an apprehension of bias by association (paragraph 5).
Ground 4: The VLSC’s decision was based on factual errors or “lies” amounting to dishonesty (paragraph 6).
Ground 5: The VLSC failed to investigate the Plaintiff’s allegations of non-disclosure as a disciplinary matter in accordance with ss 174-178 of the Uniform Law (paragraph 7).
Ground 6: In making the decision, the VLSC acted in a way that is incompatible with a human right, or failed to give proper consideration to a human right (paragraph 8).
Ground 7: The VLSC failed to deal with the complaint as efficiently and expeditiously as possible, contrary to s 317 of the Uniform Law (paragraph 9).
Ground 8: The VLSC’s decision is not supported by the evidence, and in reaching the decision the VLSC failed to take into account certain considerations or evidence (paragraphs 11-16).
I shall address each of these grounds by substantially following Mr Kruse’s characterisation of the relevant issues and evidence in his written submissions.[4]
WHETHER THE VLSC’S DECISIONS AMENABLE TO CERTIOARI
[4]As to the evidence before this Court on the application, Mr Smyth objected to Mr Walles’s reliance on documents in the court book that were not before the VLSC. Several were said to be irrelevant. Mr Kruse agreed, but, as I understood him, the VLSC did not object to Mr Walles’s reliance on the documents. In the end, I had regard to all materials that were in the court book.
Introduction
However, before doing so, it is necessary to address Mr Kruse’s preliminary point, which was that the VLSC’s decisions[5] are not amenable to the relief Mr Walles seeks.
[5]While Mr Walles challenged the VLSC’s “decision”, as we shall see in the next paragraph, there are in fact two relevant decisions — one to cease dealing with the consumer aspect of the complaint, the other to close the disciplinary aspect of the complaint.
Mr Walles seeks orders in the nature of certiorari setting aside the VLSC’s decisions:
a) to cease dealing with the consumer aspect of the complaint in accordance with s 293 of the Uniform Law; and
b) to close the disciplinary aspect of the complaint in accordance with s 277(1)(h) of the Uniform Law.
Submissions
Mr Kruse pointed out that the function of certiorari is to quash the legal effect or legal consequences of a decision under review.[6] It must therefore be possible to identify a decision which has a discernible or apparent legal effect upon rights.[7]
[6]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580 (per Mason CJ, Dawson, Toohey and Gaudron JJ).
[7]Hot Holdings Pty Ltd v Creasy (1985) 185 CLR 149 at 159 (per Brennan CJ, Gaudron and Gummow JJ).
In support of his submission, Mr Kruse relied on the decision of the New South Wales Supreme Court in Hastwell v Legal Services Commissioner.[8] In that case, Campbell J concluded that a decision to close a disciplinary complaint under s 277 of the Uniform Law after a preliminary assessment is not a decision which affects legal rights or has legal consequences, and therefore is not amenable to certiorari.[9]
[8]Hastwell v Legal Services Commissioner [2020] NSWSC 1008.
[9]Hastwell v Legal Services Commissioner [2020] NSWSC 1008 at [54]. An application for leave to appeal against his Honour’s decision was refused by the New South Wales Court of Appeal on 24 February 2021 (see Hastwell v Legal Services Commissioner [2021] NSWCA 20); and, in turn, an application for special leave against the Court of Appeal’s decision was refused by the High Court on 12 August 2021 (see Hastwell v Legal Services Commissioner [2021] HCASL 140).
His Honour observed that a complainant has no “stake”, or expectation of a tangible benefit, in the outcome of a disciplinary complaint.[10] He identified five provisions in the Uniform Law that demonstrate that a complainant’s legal rights are not affected by a decision to close a complaint under s 277:[11]
[10]Hastwell v Legal Services Commissioner [2020] NSWSC 1008 at [54].
[11]Hastwell v Legal Services Commissioner [2020] NSWSC 1008 at [55]-[56].
a) s 273, which allows a complainant to withdraw a complaint, but does not affect the authority of the Commissioner to initiate or continue to investigate, or proceed with, a disciplinary matter despite withdrawal;
b) s 277(4), which provides that the Commissioner is not required to give the complainant an opportunity to be heard before closing a complaint;
c) s 299, which confers wide powers on the Commissioner to determine a disciplinary matter without regard to the complainant or his or her wishes;
d) s 300, which empowers the Commissioner, and not a complainant, to initiate and prosecute proceedings in respect of professional misconduct and examples of unsatisfactory professional conduct; and
e) s 314, which provides that the relevant lawyer, and not a complainant, has a right to appeal or review after determination of a disciplinary matter under s 299.
Accordingly,[12] the submission continued, while a disciplinary complaint made under the Uniform Law has the potential ultimately to affect the legal rights of the lawyer concerned, the complainant is but a conduit for bringing the complaint to the Commissioner’s attention.[13]
[12]Mr Kruse also referred to four provisions concerning the investigation phase of a complaint, which he submitted support the view that closure at the preliminary stage (as occurred in this matter) does not affect the legal rights of a complainant. Those provisions were ss 275, 277(1)(d), 299(3) and 312 of the Uniform Law. For reasons that appear below, however, it is unnecessary to analyse this part of the argument.
[13]Hastwell v Legal Services Commissioner [2021] NSWCA 20 at [3] (per Basten JA).
Justice Campbell further observed that the situation may be different in consumer matters.[14] For example, the Commissioner might make a compensation order in accordance with Part 5.5 of the Uniform Law in determining a consumer matter.[15] Similarly, the Commissioner might make a binding determination under s 292 to the extent that a consumer matter involves a costs dispute. Decisions of those kinds may be identified as affecting legal rights or having legal consequences.
[14]Hastwell v Legal Services Commissioner [2020] NSWSC 1008 at [54].
[15]See s 290(2)(e) of the Uniform Law.
In this case, however, submitted Mr Kruse, given the terms of ss 291-293 of the Uniform Law, the VLSC had no power to deal with the costs dispute because the total bill for legal costs was more than $100,000 and the total amount in dispute was more than $10,000. The VLSC therefore ceased dealing with the dispute in accordance with s 293. Moreover, by operation of s 197, the VLSC’s decision to cease dealing with the costs dispute under s 293 does not prevent the legal costs from being the subject of a costs assessment by the Costs Court.
It was submitted that, in those circumstances, Mr Walles had no legal right under the Uniform Law to have the VLSC consider and determine the costs dispute identified in the complaint. Correspondingly, the VLSC’s decision to close that part of the complaint also has no legal effect or legal consequences, and there is nothing to be nullified or invalidated by a quashing order.
For those reasons, submitted Mr Kruse, the VLSC’s decisions — in respect of both the consumer matter and the disciplinary matter — are not amenable to certiorari, and the proceeding should be dismissed on this basis.
Mr Smyth, who appeared for Ms Knoester in this Court, was content to adopt Mr Kruse’s submissions on this issue and on the grounds taken by Mr Walles.
Mr Walles’s submissions on this issue did not appear to engage directly with the reasoning in Hastwell, other than to say it concerned different circumstances from his case. However, as I understood him, the essence of Mr Walles’s submission came down to an understandable rhetorical flourish: if this Court does not have jurisdiction to hear his complaints about the VLSC, then who does?
Mr Kruse’s answer to that question was threefold: (a) the VLSC, on a revisiting of a complaint; (b) the Costs Court; or (c) this Court in another matter (by virtue of s 275).
I also took Mr Walles to submit, in effect, that, if there were grounds for finding both the costs complaint and the disciplinary complaint established (as he submitted there were), then the decisions to cease dealing with the former and close the latter must be amenable to certiorari on judicial review.
Discussion
Neither aspect of the VLSC’s decision appears to have a discernible or apparent legal effect upon Mr Walles’s rights.
While the disciplinary complaint had the potential ultimately to affect the legal rights of Ms Knoester, as Mr Kruse submitted, Mr Walles was but a conduit for bringing the complaint to the VLSC’s attention.
Further, on the face of it, it appears that the VLSC had no power to deal with the costs dispute because the total amount in dispute was more than $10,000. If that is the correct characterisation of the relevant amount, it seems that Mr Walles had no legal right under the Uniform Law to have the VLSC consider and determine the costs dispute identified in the complaint. Further, it appears correct to say that the VLSC’s decision to close that part of the complaint had no legal effect or legal consequences, and that there was nothing to be nullified or invalidated by a quashing order.
Thus, were it necessary to decide the point, my present thinking is that I would be inclined to follow Campbell J’s reasoning in Hastwell regarding the availability of certiorari at the instance of a complainant vis-à-vis a disciplinary complaint Likewise, I would accept Mr Kruse’s submission about the availability of that remedy in respect of the VLSC’s decision on the costs dispute in this case.
However, it is unnecessary to decide these points in this case. This is because I reject each of Mr Walles’s grounds in any event. Thus, even if either or both decisions of the VLSC were amenable to certiorari on judicial review, I would still dismiss the application.
Further, in the circumstances of this particular application, I do not consider that it is appropriate go on and determine the point anyway. As helpful and persuasive as Mr Kruse’s submissions were, it must be remembered that Mr Walles was unrepresented. Thus, he was not in a position to put submissions as they might have been put by counsel appearing for him on an issue as difficult and important as whether the VLSC’s decisions were amenable to certiorari. Nor was Mr Smyth in the position of a contradictor, as he adopted the submissions of Mr Kruse.
In those circumstances, I think I should consider and determine Mr Walles’s grounds of review on the assumption that — but without deciding whether — the VLSC’s decisions in this case are amenable to certiorari.
DETERMINATION OF GROUNDS FOR REVIEW
Ground 1: Decision contrary to the VLSC’s objectives
Ground 1 is a complaint that the decision is contrary to the VLSC’s objectives.
In paragraph 3 of his originating motion, Mr Walles refers to three “objectives” of the VLSC stated in the Victorian Legal Services Board and Commissioner 2019 Annual Report. He alleges that the VLSC failed to implement these objectives when making the decisions under challenge.
The three “objectives” referred to are stated in the Annual Report under the heading “our purpose”, as follows:[16]
We see the following three objectives as crucial to meeting our obligations under the Uniform Law:
·protect consumers and the public by effective regulation of lawyers and legal practices;
·assist the legal profession to achieve the highest standards of ethics and legal practice; and
·manage the funds under our control to support effective regulation and promote confidence in the administration of justice.
[16]Victorian Legal Services Board and Commissioner 2019 Annual Report, Ch 1, at 2.
Mr Kruse submitted that, although the VLSC’s Annual Report has no legislative authority, it may be observed that the first objective is reflective of the statutory objective in s 3(c) of the Uniform Law: “enhancing the protection of clients of law practices and the protection of the public generally”. But, in his submission, that observation does not advance Mr Walles’s allegations. The objectives of the Uniform Law — whether under s 3 or those stated in the Annual Report — are aspirational and descriptive. They do not mandate a legal standard of conduct for the VLSC, and it is not a purpose of the Uniform Law that contravention of these objectives could constitute reviewable error.[17] Further, a decision to close any particular complaint does not mean that the objectives are not being achieved. I accept these submissions.
[17]Mr Kruse referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390[93] (per McHugh, Gummow, Kirby and Hayne JJ).
At the heart of Mr Walles’s complaint is that he does not believe that, as a client of a law practice, he was protected. But, consistently with Mr Kruse’s submissions, that the VLSC decided to close Mr Walles’s disciplinary complaint and to cease dealing with the consumer complaint does not mean that either the objectives in the Annual Report or the statutory objective in s 3(c) of the Uniform Law were not, or are not being, achieved. This ground is rejected.
Ground 2: Illegality and bad faith
In paragraph 4 of his originating motion, Mr Walles alleges that the VLSC acted illegally and in bad faith. This complaint is picked up in paragraph 5, which states that the VLSC “conveniently and deliberately overlooked very clear evidence that has been presented”.
Mr Kruse pointed out that the reference to overlooking evidence is not developed further under paragraphs 4 or 5 of the originating motion, although it is addressed in paragraphs 11 to 16, where it is asserted that the VLSC failed to take into account certain considerations or evidence, which is the subject of Ground 8. Mr Kruse submitted that, for the reasons argued under cover of Ground 8 (below), there is nothing in the allegation that the VLSC failed to take into account evidence. On that basis, no further inference can be drawn that the VLSC “therefore acted illegally and in bad faith” in support of Ground 2.
I accept Mr Kruse’s submissions. I am not persuaded that there is any basis on which it could be said that the VLSC acted illegally or in bad faith.
The balance of paragraph 4 extracts s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the list of grounds for review of decisions to which that Act applies. But, as Mr Kruse submitted, that Act does not apply to the VLSC’s decision.
Accordingly, this ground fails.
Ground 3: Bias or apprehension of bias by association
Paragraph 5 of the originating motion alleges that the VLSC had a “vested interest in covering up for” Ms Knoester, because:
a) Adviceline is a division of Holding Redlich;
b) Holding Redlich and the VLSC hold offices in the same building (555 Bourke Street, Melbourne); and
c) the previous Commissioner (Michael McGarvie) practised as a solicitor at Holding Redlich before his appointment as Commissioner.
Ground 3, then, appears to assert that the association between the previous Commissioner and Holding Redlich, and/or the physical proximity between the VLSC’s and Holding Redlich’s offices, might cause a fair-minded lay observer reasonably to apprehend that the current Commissioner might not have decided Mr Walles’s complaint against Ms Knoester in accordance with its merits.
Mr Kruse submitted that there is no basis for those assertions, and that they bear no logical connection with the disposition of Mr Walles’s complaint.
Insofar as it alleges apprehended bias, Ground 3 appears to assert that the association between the previous Commissioner and Holding Redlich, and/or the physical proximity between the VLSC’s and Holding Redlich’s offices, might cause a fair-minded lay observer to apprehend that the current Commissioner might not have decided Mr Walles’s complaint against Ms Knoester in accordance with its merits.
A vitiating apprehension of bias will attend a decision where a fair-minded lay observer might reasonably apprehend that the decision-maker might not have brought an impartial and independent mind to the making of the decision.[18] Establishing a claim of apprehended bias requires the party alleging it, first, to identify the factor which it is hypothesised might have caused the decision to be made otherwise than in accordance with its merits and, second, to articulate how that factor might have caused that deviation.[19]
[18]See, e.g., Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344[6] (per Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J agreeing at 396[182]).
[19]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345[8] (per Gleeson CJ, McHugh, Gummow and Hayne JJ). See also at 361[72].
Mr Kruse submitted that there is no basis for Mr Walles’s assertion: neither of the matters identified by Mr Walles bears any logical connection to the disposition of his complaint. I accept that submission. To the extent that the logical connection between the circumstances identified by Mr Walles and the deviation from decision-making in accordance with the merits is capable of articulation, I do not consider that the resultant apprehension of bias is reasonable.[20] Mr Walles’s assertion at the heart of this ground has a conspiratorial quality to it that amounts to nothing more than rank and unjustified speculation.
[20]See CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 88[21] (per Kiefel CJ and Gageler J), 107[92]-[93] (per Nettle and Gordon JJ), 116-117[126]-[129] (per Edelman J); Isbester v Knox City Council (2015) 255 CLR 135 at 155-156[59] (per Gageler J).
It follows a fortiori that I do not accept Mr Walles’s submission that the VLSC’s decision was affected by actual bias. A finding of actual bias should not be made other than in exceptional circumstances. Cogent evidence is required.[21]
Ground 4: Factual errors or “lies” amounting to dishonesty
[21]Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 123 (per Wilcox J) & 125 & 127 (per Burchett J).
In paragraph 6 of his originating motion, Mr Walles alleges that the VLSC “has been dishonest in her comments and has lied” in making the decision. That allegation is followed with these alleged examples of dishonesty:
a) the VLSC stated that Mr Walles offered $0 to settle the solicitor/client costs dispute, in circumstances where he had offered $30,000;
b) the VLSC did not consider whether, and there was no evidence that, Ms Knoester made any ongoing costs disclosures before incurring costs;
c) the VLSC helped Ms Knoester get away with fraudulently issuing proceedings (for taxation of party/party costs) in Mr Walles’s name without his knowledge or consent.
Turning to the first example, the VLSC’s decision letter of 25 September 2020 refers to the following unsuccessful attempts by her to assist Mr Walles in resolving the solicitor/client costs dispute:
· Kevin Power’s attempts to negotiate a resolution between yourself and Ms Knoester between September to October 2019. You had refused any and all offers made by Ms Knoester to further discount her fees. You had also refused to put forward any offer yourself in an attempt to settle the dispute. I note your email to Mr Power dated 25 September 2019 in which you said, “I state my position again in relation to this $30k stated in the costs agreement that my offer to them is $0.” (our emphasis).
· Ms Lethlean and Ms Iacono taking the time to listen and understand the offer you were putting forward to Adviceline and then making contact with Ms Knoester to put forward your offer of $40,000 (as the total party/party and solicitor/client costs to be received by them) on 2 April 2020.
· On 9 April 2020, Ms Lethlean sent you an email informing you that Ms Knoester had rejected your offer on the basis that her fees were already significantly reduced. Ms Knoester put forward a counter-offer whereby she would accept $50,000 for solicitor/client costs. This was explained as being solicitor/client costs in addition to the party/party costs already received by Adviceline. You ultimately rejected that offer.
The alleged “lie” that Mr Walles had offered $0 appears to refer to the first bullet point in the above quote. Mr Kruse submitted that the assertion in this bullet point is supported in the evidence by an email of 25 September 2019 to Mr Power of the VLSC’s Assessment and Resolutions Team, in which Mr Walles said that “My offer to them is $0 to settle and them walk away”.
The second bullet point refers to a further offer made by Mr Walles of $40,000. Mr Kruse submitted that the contents of this bullet point are supported by a file note made by Ms Lethlean of a meeting on 2 April 2020 between Mr Walles and Ms Lethlean and Ms Iacono of the VLSC’s Discipline and Suitability Team. The file note refers to an offer of “$30,000 + $10,000 as a gesture of goodwill”.
In Mr Kruse’s submission, it must follow that there was no “lie”. Mr Walles did offer $0. He later offered $40,000. Both offers were addressed by the VLSC and are supported by the evidence.
The second alleged example of dishonesty is met by the decision letter of 25 September 2020. Under the heading “Charging in excess of original costs agreement and failing to provide updates”, the VLSC sets out in detail its consideration of this issue, and the conclusion that Ms Knoester appropriately advised Mr Walles of all changes to his costs, and that he was previously provided with copies of correspondence from Ms Knoester evidencing this. The decision letter goes on to refer to (and enclose) the evidence that the VLSC considered in reaching that conclusion.
Again, Mr Kruse submits that it must follow that there was no dishonesty. The VLSC did consider whether, and there was evidence that, Ms Knoester made ongoing costs disclosures.
Mr Walles’s third example appears to amount to an allegation that the VLSC should have, but did not, conclude that Ms Knoester acted fraudulently in issuing a summons for taxation of party/party costs. In Mr Kruse’s submission, if that is correct, the allegation expresses dissatisfaction with the merits of the VLSC’s decision, and does not disclose reviewable error. Alternatively, if the third allegation is that the VLSC assisted, or was involved in, fraudulent conduct by Ms Knoester, it has no basis.
Mr Walles’s complaint as to the party/party costs proceeding is addressed in detail in the VLSC’s foreshadowing letter of 26 March 2020, and again in the VLSC’s decision letter of 25 September 2020. In considering this issue, and referring to the evidence, the VLSC concluded that there was no fraud. Mr Kruse submitted that there is no suggestion, nor could there be, that the VLSC “lied” or was “dishonest” in reaching this conclusion.
I accept the foregoing submissions made by Mr Kruse. I am not persuaded that there is any evidence for any of Mr Walles’s assertions that the VLSC lied or was dishonest or fraudulent in coming to the decisions under challenge. This ground is rejected.
Ground 5: Failure to investigate disciplinary matter
Paragraph 7 of Mr Walles’s originating motion alleges that the VLSC failed to investigate his allegations that Ms Knoester contravened her disclosure obligations as a disciplinary matter in accordance with ss 174-178 of the Uniform Law.
Sections 174-177 set out the disclosure obligations of law practices. Section 178(1)(d) provides that contravention of those disclosure obligations “is capable of constituting unsatisfactory professional conduct or professional misconduct”.
Paragraph 7 of the originating motion relevantly says this:
Where the problems give rise to disciplinary matters, it is the Commissioner who should have made a final determination based on [ss] 174-178. Regardless of any costs in question, the VLSC should have investigated the serious misconduct of Ms Knoester.
It appears that there are two parts to this allegation:
a) first, that the VLSC should have, but did not, consider Mr Walles’s allegations about costs disclosures as a disciplinary matter; and
b) secondly, that the VLSC should have, but did not, investigate those allegations in accordance with s 282 of the Uniform Law.
As to the first part, Mr Kruse submitted that it is factually incorrect. In the course of the preliminary assessment, the VLSC did consider Mr Walles’s complaints about Ms Knoester’s disclosures as a disciplinary matter. The VLSC concluded that Ms Knoester had made appropriate disclosures, and that the complaint did not require further investigation.
As to the second part, Mr Kruse submitted that the Uniform Law does not mandate the investigation of a disciplinary matter. Upon receipt of a complaint — and whether it contains a consumer matter, a disciplinary matter, or both — the VLSC must conduct a preliminary assessment (in accordance with s 276), and may close the complaint without further consideration of its merits if one of the reasons set out in s 277 is applicable. That includes a reason where the VLSC, having considered a complaint, forms the view that the complaint requires no further investigation (see s 277(1)(h)). Section 277(3) further clarifies that a complaint may be closed under s 277 “without any investigation or without completing an investigation”.
I accept Mr Kruse’s submissions. They are plainly correct. I am not persuaded that the VLSC failed to consider Mr Walles’s allegations that Ms Knoester contravened her disclosure obligations as a disciplinary matter in accordance with ss 174-178 of the Uniform Law. Nor was the VLSC required to investigate those allegations under s 282.
To the extent that Ground 5 otherwise expresses dissatisfaction with the merits of the VLSC’s decision, it does not allege reviewable error.
This ground is rejected.
Ground 6: The Charter
In paragraph 8 of his originating motion, Mr Walles alleges that, in making the decisions in issue, the VLSC acted in a way that is incompatible with a human right, or failed to give proper consideration to a human right. Paragraph 8(g) puts the allegation in this way:
The intentional delay in handing down the ‘decision’ by the VLSC was a form of torture. The unlawful decision is something for which they must be held accountable. Only someone who is experiencing justice being denied can appreciate the pain and suffering caused by unnecessary delay as justice delayed is justice denied.
The human right said to be in issue is the protection from torture in s 10(a) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”). The concept of “torture” involves the intentional infliction of severe pain and suffering, whether physical or mental.[22]
[22]Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), Article 1. See further Pound and Evans, Annotated Victorian Charter of Rights (2nd ed, 2019) at [10.60]; Kracke v Mental Health Review Board (2009) 29 VAR 1 at 118[551] (per Bell J).
Mr Kruse submitted that the circumstances delay has created for Mr Walles do not approach the severity the concept of torture requires.
Further, the conduct must also be intentional. In this respect, paragraph 7 of the originating motion says this:
Ms [McLeay] and her team were very well [aware] of the significant trauma I had experienced whilst I was a client at Holding Redlich. They were very well aware that I was suffering and yet it appears they delayed rendering and handing down a decision for over one year in the hope that I would ‘disappear’.
Mr Kruse submitted that that allegation does not support a contention that the VLSC intentionally inflicted severe pain and suffering amounting to torture, or failed to give proper consideration to whether there was a risk of such pain and suffering.
It was also submitted that there is no basis for that allegation. Mr Kruse pointed to the evidence that, in handling the complaint, the VLSC took particular care:
a) to ensure that Mr Walles was provided with every opportunity to be heard and to put his complaint;
b) to consider and address all of the (substantial) evidence and submissions that Mr Walles and Ms Knoester had provided; and
c) to maintain regular (at times daily) communication with Mr Walles to provide him with updates on the progress of his complaint.
In his written submissions, Mr Kruse set out the relevant chronology in the following way:
a) Between September 2019 upon receipt of the complaint until November 2019, the VLSC’s Assessment and Resolutions team was involved in regular ongoing communication with Mr Walles to assist him in an attempt to resolve his costs dispute informally.
b) After those informal attempts at resolution were unsuccessful, in December 2019, the VLSC’s Discipline and Suitability Team took over the management of the complaint. Between December 2019 and March 2020, that team sought further information from Mr Walles and Ms Knoester in the course of reaching a preliminary view set out in the foreshadowing letter.
c) Between March 2020 and May 2020, the Discipline and Suitability Team provided Mr Walles with a number of opportunities to meet with members of that team, and to provide further information and submissions in response to the foreshadowing letter, before a final decision would be made.
d) On 14 May 2020, and again on 15 May 2020, Mr Walles contacted the Commissioner Ms McLeay directly, requesting that she personally review the complaint.
e) On 19 May 2020, Mr Walles provided the VLSC with a memorandum of legal advice authored by counsel raising a number of issues concerning his complaint, and requested that no final decision be made until that memorandum was received and considered. On 25 May 2020, the VLSC informed Mr Walles that it would take some time to review the points raised in that memorandum. (I should add that I have read counsel’s memorandum.)
f) Between late-May and the VLSC’s decision on 24 September 2020, Mr Walles and the VLSC’s Discipline and Suitability Team were in regular contact about the progress of the complaint.
g) Finally, additional time was taken so that Ms McLeay could consider Mr Walles’s complaint and make the decision personally, and not by a delegate. Ms McLeay signed the decision memorandum prepared on 9 September 2020 on 24 September 2020.
In Mr Kruse’s submission, there is no support in the evidence for the allegation that the VLSC intentionally delayed reaching a decision on the complaint in the hope that Mr Walles would “disappear”. There was no delay. The VLSC took care to balance the need for expedition against the need, comprehensively and fairly (and personally), to address all of the issues raised by Mr Walles, and to provide him with a fair opportunity to be heard.
I accept these submissions. While it is obvious that this was a very difficult experience for Mr Walles, there is no basis to suggest that the VLSC engaged in torture or intentionally delayed reaching a decision in the hope that he would disappear. Ground 6 is rejected.[23]
[23]While I need not decide the point (and I heard no argument on it), it strikes me that a failure to consider the Charter might not be a reviewable error in any event.
Ground 7: Failure to deal with complaint efficiently and expeditiously
In paragraph 9 of his originating motion, Mr Walles alleges that the VLSC failed to deal with his complaint efficiently and expeditiously, contrary to s 317 of the Uniform Law.
Mr Kruse submitted that the VLSC did not contravene s 317. Section 317 states that it is the duty of the VLSC to deal with complaints “as efficiently and expeditiously as is practicable”. It was said that, for the same reasons given in response to Ground 6, it can be seen that the VLSC took care to balance the need for expedition against the need comprehensively and fairly to address all of the issues raised by Mr Walles, and to provide him with a fair opportunity to be heard. That, it was submitted, was an appropriate course to take in the circumstances.
It was further submitted that, in any event, a failure to act expeditiously would not give rise to reviewable error. Section 317 does not mandate expedition, nor does it condition the exercise of the VLSC’s power to complete an investigation upon its being conducted expeditiously. Instead, it requires expedition so far “as is practicable”. It is not therefore a purpose of the Uniform Law that contravention of s 317 should result in invalidity.[24]
[24]Again, Mr Kruse referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390[93] (per McHugh, Gummow, Kirby and Hayne JJ).
Again, I accept these submissions. I am not persuaded that the VLSC failed to deal with the complaint as efficiently and expeditiously as was practicable, nor that any failure on its part to do so would have resulted in reviewable error. Ground 7 is rejected.
Ground 8: Decision not supported by evidence/Failure to take account of considerations
Introduction
In paragraphs 11-16 of the originating motion, Mr Walles alleges that the VLSC’s decisions are not supported by the evidence, and that in reaching these decisions the VLSC failed to take into account certain considerations or evidence. The specific allegations made are as follows.
Paragraphs 11 and 14
In paragraphs 11 and 14, it is alleged that it was clear on the evidence that Ms Knoester had committed fraud by filing a summons for taxation of party/party costs without Mr Walles’s instructions, knowledge or consent.
This allegation is addressed above when dealing with Ground 4. Mr Kruse submitted that the VLSC considered this allegation and the relevant evidence and concluded that there was no fraud.
As with many of Mr Walles’s grounds, this one invites merits review, which is impermissible. It is plain that the VLSC considered his allegation of fraud, but did not accept it. It cannot be said that there was no basis on which the VLSC could reach that view.
Paragraphs 12 and 12(a)
In paragraphs 12 and 12(a), it is alleged that it was clear on the evidence that Mr Walles had instructed Ms Knoester to stop acting for him.
This allegation is addressed in the VLSC’s foreshadowing letter of 26 March 2020, and again in the VLSC’s decision letter of 25 September 2020.
I accept Mr Kruse’s submission that the VLSC considered this allegation and the relevant evidence, and concluded that Ms Knoester’s conduct in this regard did not raise a disciplinary issue. Again, I am unpersuaded that it was not open to the VLSC to reach that conclusion.
Paragraphs 12 and 14
In paragraphs 12 and 14, Mr Walles argues that it was clear on the evidence that Ms Knoester had advised that no further costs would be incurred after settlement.
This allegation appears to be related to other allegations that Ms Knoester should have stopped acting, should not have sought taxation of party/party costs, and did not make ongoing costs disclosures before incurring costs.
But these issues and the relevant evidence were considered in the VLSC’s foreshadowing letter of 26 March 2020, and again in the VLSC’s decision letter of 25 September 2020. The VLSC concluded that Ms Knoester’s conduct in this regard did not raise a disciplinary issue. Again, I am unpersuaded that it was not open to the VLSC to reach that view.
Paragraphs 13(a) and 14
In paragraphs 13(a) and 14, Mr Walles submits that there was no evidence of Ms Knoester making ongoing costs disclosures before incurring costs.
This allegation is addressed above when dealing with Ground 4. As explained there, the VLSC considered this allegation and the relevant evidence and concluded that Ms Knoester did not fail to make ongoing costs disclosures.
In my view, nothing in the materials suggests that the VLSC was not entitled to come to that conclusion.
Paragraph 13(c)
In paragraph 13(c), Mr Walles asserts that the VLSC failed to acknowledge that the costs estimate was not updated in writing.
Mr Kruse submits that the VLSC addressed this allegation in the decision letter of 25 September 2020, noting that s 174(1)(b) of the Uniform Law does not require a law practice to provide formal, updated costs agreements.
Mr Kruse’s submission is plainly correct and must be accepted.
Paragraph 13(c) (again)
Also in paragraph 13(c), Mr Walles says that the VLSC failed to acknowledge that:
a) the conditional costs agreement was not in plain language;
b) the conditional costs agreement did not disclose a “reasonable estimate” of costs, contrary to s 177 of the Uniform Law; and
c) a 20% loading for “skill, care and responsibility” was applied to professional costs.
These allegations were raised in the memorandum of legal advice provided to the VLSC on 19 May 2020. They were addressed in the VLSC’s decision memorandum signed on 24 September 2020, in which it was observed that the appropriate forum for addressing them was the Costs Court.
The VLSC also referred to these matters in the decision letter of 25 September 2020, where the following was said:
the issues raised by [counsel] in his recent memorandum of advice, which predominantly challenge the validity of the Conditional Costs Agreement, further point to the fact that the Costs Court is the most appropriate forum for these issues to be considered and decided.
In those circumstances, it cannot be said that the VLSC failed in the ways alleged. On the contrary, it is clear that the VLSC acknowledged these particular aspects of Mr Walles’s complaint.
Conclusion
Accordingly, I am not satisfied that the VLSC failed to take into account the foregoing considerations and evidence.
To the extent that Ground 8 otherwise expresses dissatisfaction with the merits of the VLSC’s decision, it does not allege reviewable error.
Accordingly, I do not uphold Ground 8.
ORDER
As none of Mr Walles’s grounds has succeeded, his application for judicial review will be dismissed.
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