Friday, December 8, 2017
SUPREME COURT TELLS LEGAL REGULATORS THAT THEIR DEFENCES ARE BOLLOCKS - IT SHOWS THAT LEGAL REGULATORS MAY NOT BE HONEST
See the Professional Liability Blog of Barrister Stephen Warne:
http://lawyerslawyer.net/2017/12/08/supreme-courts-tell-legal-regulators-limitation-defences-bollocks/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+lawyerslawyer+%28The+Australian+Professional+Liability+Blog%29
Supreme Courts tell legal regulators their limitation defences are bollocks
Posted: 07 Dec 2017 05:12 PM PST
In England, the stern sounding Bar Standards Board brought disciplinary proceedings against a black barrister, Portia O’Connor, the first barrister to become a partner in one of the very modern alternative business structures they allow in old Blighty these days. They succeeded but the decision was overturned on appeal and the appellate tribunal was not complimentary about the procedures of the Board. So the barrister sued the Board for discrimination. The regulator relied on limitation defences. The Supreme Court has just decided that the defences were misconceived: O’Connor v Bar Standards Board [2017] UKSC 78. Should be an interesting case.
Meanwhile, in Kaczmarski v Victorian Legal Services Board [2017] VSC 690 the Board, represented by an external firm of solicitors and experienced counsel, tried unsuccessfully to shut an unrepresented shareholder of an incorporated legal practice out of an appeal against the reappointment of an external manager to the practice. It did so by arguing for an extraordinarily strict and as it turned out quite wrong approach to what it said was an un-extendable 7 day time limit for appealing.
I must say I’m puzzled what all the fuss was about, in view of s. 155 of the Legal Profession Uniform Law Application Act 2014. That section makes clear that nothing in the LPUL limits or restricts the Supreme Court’s administrative law jurisdiction, so that the reappointment of the external manager might have been challenged by judicial review, for which order 56 of the Supreme Court’s rules provides a 60 day extendable time limit, or under the Administrative Law Act 1978 which provides a 30 day time limit. But neither side seems to have made argument by reference to it. The bases on which the decision might have been challenged, and the relief available might well have been different between the three avenues of challenge, of course.
The problem with the strict approach was that it was wrong, very wrong. The reappointment of the manager, who vexed the appellant so much that one of the orders sought on the appeal was that the manager be ‘charged criminally and takes a mental assessment by an independent psychiatrist doctor from another state’, occurred on 28 April 2017 and was notified to the appellant by letter of that date. But, it turns out, the Board did not post it until 1 May 2017. The appellant received it on 10 May 2017, but the Board argued that s. 445 of the Legal Profession Uniform Law which said documents must be taken to have been served two business days after posting admitted of no exceptions, and the Court agreed (at [47]). (Given the Board’s enthusiasm for this provision, one might think it important that they would post letters on the date that they bear. Otherwise the recipients might look up the law and assume that service would be taken to have been effected two business days after the date of the letter, conclude that they are out of time, and not prosecute rights which they actually could have prosecuted, but that is an aside.)
The question was whether the appellant lodged his appeal within 7 days of 3 May 2017.
At 7.43 p.m. on 10 May 2017, the day he received the decision he appealed, the appellant’s son (the director of the practice) emailed Shane Draper at the Supreme Court a notice of appeal on his own and his father’s behalf. The covering email said in part that Mr Draper had:
‘advised [the appellant] and myself that an email needs to be sent to this email address advising the Supreme Court of an objection to an Appointment of a Manager to a law firm …, together with a request that your office provide both [the appellant] and myself with a hearing date. This email serves such a purpose.’
The Board argued that the notice of appeal was not ‘lodged’ until it was considered and sealed by the Court’s registry, which did not occur until days later, when a fee waiver application had been processed. The Board relied on a dissenting judgment in a Full Federal Court case from 1988 which was ‘not supported by other authority’ according to the Supreme Court and was in fact inconsistent with Full Federal Court authority from 1998.
The Board contended that the later unanimous decision of Finkelstein J and two other judges could and should be distinguished because it construed a provision which spoke of an appeal being ‘lodged with a Registry of the Federal Court’ whereas s. 358 of the LPUL simply said ‘(1) An aggrieved person may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal [defined to mean the Supreme Court] … (3) The appeal … is to be lodged within 7 days after notice of the appointment is served’. Ierodiaconou AsJ gave this argument very short shrift at [33]. Not only was the Board’s interpretation based on a dissenting judgment which did not amount to the ratio of the case and which had subsequently been unanimously disapproved by the same Court, but it was inconsistent with a subsequent comments about the concept of ‘lodgement’ made by a judge of the Court of Appeal in 2004, and a 2017 decision of the ACT Supreme Court.
Then the Board said that initiating process such as that which initiates an appeal could not be filed electronically. Ierodiaconou J found that rules about filing were not to the point in determining how a document may be lodged since lodgement and filing are two different things, each of which is referred to in the Supreme Court’s rules. And, her Honour pointed out, one of the purposes of the Electronic Communications Act 2000 is to ‘enable the community to use electronic communications in their dealings with government’, and s. 8 permits the lodging of claims by electronic communication where the recipient may be inferred to have consented to receiving the communication electronically. Consent was easily inferred by her Honour by reference to a practice note issued by the Court which told people to communicate with the Court by email and indeed from the terms of the email itself which said that Mr Draper had asked the appellant to send it.
So there you go, peeps, if a regulator sicks a manager or superviser on your practice and you don’t get the decision until the last day to appeal it because service occurred a couple of days before you received it, just drop the Supremes a note by email sometime before midnight and you should be right. If not, gird your loins and seek judicial review, never forgetting that every decision by legal regulators under the LPUL which affects your rights is probably challengeable by old fashioned administrative law remedies, regardless of how constrained the appeal / review rights provided for by the LPUL appear to be.
The post Supreme Courts tell legal regulators their limitation defences are bollocks appeared first on The Australian Professional Liability Blog.
Thursday, November 30, 2017
MY THIRD REPLY TO MR. BARICH
MY SECOND REPLY TO MR. BARICH
Tuesday, November 28, 2017
MY REPLY TO THE REGULATOR OF THE LEGAL PROFESSION IN WA DATED 28.11.2017.
Wednesday, April 26, 2017
A JUDGMENT WITHOUT ADEQUATE REASON IS AN ERROR OF LAW
Appeals from VCAT on the basis of Inadequate reasons
Posted: 18 Apr 2017 07:40 PM PDT
A while ago, my client settled an appeal to the Supreme Court from a decision of VCAT. I set out below extracts from my (sadly wasted) submissions in relation to the applicable law, so you will not have to reinvent the wheel should you suffer the misfortune of losing in an inadequately reasoned decision.
A failure to give reasons is an error of law.[1] By way of example of the application of this principle, the Commissioner recently succeeded on this basis in a s. 148 inadequacy of reasons appeal against a decision of VCAT in LSC v Turner [2012] VSC 394 (esp. at [69] et seq, [77]).
Seriously inadequate reasons are corrosive of public confidence in the administration of justice and ought not to be tolerated by an appeal court, since justice must not only be done but be seen to be done. This is the first public policy informing the requirement for reasons by courts and court-like tribunals. As the Supreme Court has observed:
‘To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant.’[2]
That is especially so in relation to factual determinations where a right of appeal lies only on a question of law. Even more especially so in a quasi-criminal[3] prosecution with serious consequences for the practitioner in which the Commissioner carries the burden of proof as described in Briginshaw v Briginshaw.
The second public policy which requires adequate reasons is facilitation of the exercise of a right to appeal (or to apply for leave). Where the path of reasoning is unstated or difficult follow it is difficult to attack on its merits, because it is unclear what the merits of the reasoning are, whether relevant considerations were ignored and whether irrelevant considerations were taken into account.
Section 117 of the Victorian Civil and Administrative Tribunal Act 1998 requires the Tribunal to give reasons for any order it makes in a proceeding other than interim orders.
Where there is a conflict on the evidence, and one version is accepted and the other rejected, the judge must avert to and assign reasons for that rejection: ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559, 566 at [20] per Hargreave AJA with whom Ashley and Dodds-Streeton JJA agreed.[4]
Mere recitation of evidence followed by a statement of findings is insufficient to disclose a path of reasoning; indeed, it is ‘about as good as useless’: Hunter v TAC (2005) 43 MVR 143 [28], [37]. This is specifically so in relation to s. 117 according to Justice Kyrou, speaking extra-judicially.[5]
In that address, his Honour said:
‘In a nutshell, adequate reasons are reasons that clearly set out the factual and legal issues for determination, the conclusions on those issues and the thought process that has been applied in reaching those conclusions.’
‘VCAT’s reasons must be intelligible. Reasons are not intelligible if they leave the reader to wonder about the process of reasoning that has been followed’.[6]
Where evidence which is not inherently improbable and is uncontradicted is not accepted, decision makers are required to give reasons for non-acceptance: Hardy v Gillette [1974] VR 392, 395-6.
Decisions of VCAT have been set aside for a failure to give adequate reasons, notwithstanding the High Court’s caution against over zealous scrutiny of administrative decision makers in Minister for Immigration v Liang (1996) 185 CLR 259 and like admonitions.[7]
That caution must apply less forcefully to appeals from VCAT in common law misconduct prosecutions seeking suspension of a solicitor from practice than in a small claim or a planning question in the Tribunal. The proposition that the standard of reasons required of decision makers ‘can vary markedly with the context’[5] cuts both ways: where a tribunal is called upon to determine a quasi-criminal prosecution, seeking interference with a sole lawyer director’s entitlement to practise, it must rise to the occasion.
There is no reason why VCAT’s decisions in such a case, in which transcript is called for and written submissions ordered, and costs ordered against County Court scale should be of any lesser standard than those of a County Court judge, especially in light of the express obligation provided by s. 117.
The trend seems to be to require better reasons from VCAT more generally than might have been demanded in the first half of the last century: Caruso v Kite [2008] VSC 207 at [32] (Kyrou J).[8]
In professional conduct prosecutions in which findings of dishonesty are to be made, it is obviously important for reasons to make clear and careful findings about the state of mind of the allegedly dishonest person.[9]
[1] Secretary to the Department of Treasury and Finance v Dalla-Riva (2007) 26 VAR 96, 102 at [23] per Buchanan JA with whom Ashley JA and Smith AJA agreed; Victoria v Turner [2009] VSC 66 [237]-[241]; Paul & Paul Pty Ltd v Business Licensing Authority [2010] VSC 460 (15 October 2010) [67]-[69]; E Kyrou, ‘Adequacy of Reasons’ [2010] VicJSchol 24; Secretary to the Department of Justice v Yee [2012] VSC 447 at [90] (Kyrou J).
[2] Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18 (Gray J, with whom Fullager and Tadgell JJ agreed), re-stated by Rush J in Sun Alliance in Gray v Brimbank City Council [2014] VSC 13.
[3] See Stirling v LSC [2013] VSCA 374 at [63] et seq.
[4] They referred to Hunter v TAC [2005] VSCA 1 [21]-[22], Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 and Sun Alliance Ltd v Massoud [1989] VR 18-19. The first and third decisions were followed in a s. 148 appeal from VCAT by Rush J in Gray v Brimbank City Council [2014] VSC 13 at [37] (referring to [28] in Hunter) and [55]. Hunter was approved in Franklin was followed in Pham v Legal Services Commissioner [2015] VSC 671 (Bell J), another s. 148 appeal and on appeal by Redlich and Kaye JJA: Pham v Legal Services Commissioner [2016] VSCA 256 at [88]. Consider also Ta v Thompson [2013] VSCA 344 at [56].
[5] ‘Adequacy of Reasons’ [2010] VicJSchol 24.
[3] Secretary to the Department of Justice v Yee [2012] VSC 447 (Kyrou J), citing Commissioner of State Revenue v Anderson (2004) 24 VAR 181, 191 [33] and other authorities; LSC v Turner [2012] VSC 394 at [69].
[6] Quinn v LIV (2007) VAR 1 esp at [33] et seq, [42], [46]; Burgess v McGarvie [2013] VSCA 142 at [60] et seq.; LSC v Turner [2012] VSC 394 at [69] et seq.
[7] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498 [45].
[6] See also the following authorities which usefully summarise the NSW authorities: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [65], Palmer v Clarke (1989) 19 NSWLR 158 at 170 (Kirby P); Qushair v Raffoul [2009] NSWCA 110 at [52], followed in Kalloghlian v Chubb Insurance Company of Australia Ltd [2016] NSWSC 902.
[8] Consider Giudice v Legal Profession Complaints Committee [2014] WASCA 115 at [46], [108]-[109] and LSC v Brereton (2011) 33 VR 126 at [68] per Tate JA with whom the other judges agreed.
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