Legal Research
Cases
Werden v Legal Services Board

Werden v Legal Services Board

Link copied

Case Copied 21 November 2012 39 min read

Contents

On this page

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

---

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)

---

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.

---

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.
[1]DPP v Werden [2006] VSC 397.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Werden v Legal Services Board and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] VSCA 278
Decision Date: 21 November 2012

CaseChat Overview and Summary

The case of Werden v Legal Services Board involved a solicitor, Werden, who was found to have misappropriated trust funds. The Legal Services Board (LSB) sought compensation from Werden under section 86 of the Sentencing Act 1991. The dispute centred on whether the LSB's application for compensation was made 'as soon as practicable' after Werden's conviction and if the claims for compensation were statute-barred. Additionally, it was contended that the trial judge failed to provide adequate assistance to the unrepresented litigant, and that the LSB had breached an undertaking not to adduce certain evidence.

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.

Orders