SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2011 0038 | |
| GABRIEL WERDEN | Appellant |
| v | |
| LEGAL SERVICES BOARD | Respondent |
| S APCI 2011 0045 | |
| LEGAL SERVICES BOARD | Appellant |
| v | |
| GABRIEL WERDEN | Respondent |
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| JUDGES | REDLICH and TATE JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 23 August 2012 | |
| DATE OF JUDGMENT | 21 November 2012 | |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 278 | |
| JUDGMENT APPEALED FROM | [2011] VSC 74 (Beach J) | |
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CRIMES COMPENSATION – Appeal – Solicitor – Defalcation of trust moneys – Subrogation of the Legal Services Board to the rights and remedies of claimants – Application for compensation by Legal Services Board under s 86 of the Sentencing Act 1991 – Whether application for compensation was made as soon as practicable after conviction – Meaning of ‘as soon as practicable’ – Appeal dismissed.
LEGAL PRACTITIONERS – Appeal – Breach of trust – Whether claims for compensation were statute barred – LegalPractice Act1996, ss 208 and 217 – Limitation of Actions Act1958, s 21 – Unrepresented litigant – Procedural fairness – Whether trial judge failed to give adequate assistance to the unrepresented litigant to ensure a fair trial – Whether the Board breached an undertaking not to adduce certain evidence – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For Mr Werden | In person (via videolink) | |
| For the Legal Services Board | Mr J Ruskin QC with Mr S R Senathirajah | Legal Services Board |
REDLICH JA:
This appeal arises out of two proceedings brought by the Legal Services Board (‘the Board’) against Mr Gabriel Werden, a former solicitor who stole money from his clients to finance a gambling habit. Mr Werden pleaded guilty in the Supreme Court to 13 offences, comprising nine counts of theft, three counts of obtaining financial advantage by deception and one count of having a trust account deficiency. The deficiency in his trust account was $1,104,729.11. On 27 October 2006 Teague J sentenced him to a substantial term of imprisonment.[1] The Board sought compensation for payments made out of the Legal Practitioners Fidelity Fund (‘the Fund’) to reimburse Mr Werden’s clients (‘the claimants’) for losses they suffered as a result of Mr Werden’s defalcations.
The Board is a statutory body responsible for the Fund which covers the liabilities of legal practitioners practising in Victoria. From 12 December 2005, all rights, property and assets that were vested in the Board’s predecessor, the Legal Practice Board, became vested in the Board.[2] Pursuant to s 208 of the Legal Practice Act 1996, the claimants were entitled to seek compensation from the Fund arising from Mr Werden’s defalcations.[3] The Legal Practice Board received 19 claims between 1998 and 2001 and made payments totalling approximately $623,000 out of the Fund to these claimants.
[2]See clause 8.7 of Schedule 2 of the Legal Profession Act2004.
[3]Legal Practice Act 1996, repealed by s 8.1.1(2) of the Legal Profession Act 2004. As Mr Werden’s relevant conduct occurred in the period May…
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- Case
- [2012] VSCA 278
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were the interpretation of the phrase 'as soon as practicable' within the context of the LSB's application for compensation, the applicability of the limitation period under the Limitation of Actions Act 1958, and whether procedural fairness was upheld during the trial. The court also had to consider if the LSB had breached an undertaking by introducing certain evidence that was not previously disclosed.
The court found that the LSB's application for compensation was indeed made 'as soon as practicable' after Werden's conviction, given the circumstances surrounding the case. The court held that the limitation period did not bar the claims for compensation as the LSB was subrogated to the rights and remedies of the claimants. Furthermore, the court determined that procedural fairness was maintained as the trial judge had provided sufficient assistance to the unrepresented litigant. The court also found that the LSB had not breached the undertaking by introducing the contested evidence. The appeal was dismissed.
The court dismissed the appeal and affirmed the decisions of the lower court. The LSB's application for compensation was considered timely, and the claims were not barred by statute. Additionally, the court found that procedural fairness was upheld during the trial and that no breach of the undertaking occurred.
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