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Sir Terence O'Rort
20 November, 2008  
Bureau de Spank's special moments

A run of outs for the Queensland Bureau de Spank, but without the soothing balm of costs orders for victorious lawyers. Sir Terence O’Rort thinks it’s about time the regulator stopped making such a hash of things


imageThe Queensland Legal Services Commission, the love child of Bjelke-Beattie and Daphnis de Jersey, was born out of the smoking ruins of the Queensland Law Society’s self-regulation of the solicitor’s branch of the profession.

The QLS was such a top regulator that luminaries like Mick (Rhino) Baker were permitted to inflict themselves on unsuspecting punters for years before he was skewered by the new Legal Services Tribunal.

The Legal Services Commission commenced trading under the baton of maestro John Britton, the inaugural commissioner in 2004.

The sting for all legal eagles unfortunate enough to find themselves before the Legal Services Tribunal is that it really doesn’t matter if you are successful against the LSC plod-you still can’t get costs in the tribunal.

Tucked away in the Legal Profession Act 2007 is s.462 which provides:

“A disciplinary body may make an order requiring the commissioner to pay costs, but may do so only if it is satisfied that:
bq. (a) the Australian legal practitioner or law practice employee is not guilty; and

(b) the body considers that special circumstances warrant the making of the order.”

So LSC plod can fail in the tribunal against a practitioner but to get costs for the failed prosecution the lawyer has to show “special circumstances”.

Well may you ask, what are “special circumstances”?

imageDaphnis de Jersey (seen here) provided the answer in his own compelling way in Legal Services Commissioner v Sing (No.2) when helpfully he said:

“Special circumstances means just that. They must be special.”

In the same case Daphnis opined (when referring to s.462):

“The statutory provision assumes that ordinarily, notwithstanding the success of the respondent, the commissioner will not be ordered to pay costs. That no doubt recognises the public interest which motivates the commissioner in approaching the tribunal.”

How the public interest would be served by the LSC bringing hopeless discipline applications was not further discussed.

While any failure on the part of the LSC is protected from costs orders in the tribunal, not so in the Court of Appeal to which an appeal lies from decisions of the tribunal.
Maestro Britton recently has had a notable run of outs before the Court of Appeal, which has not looked kindly on the exploits of Maxwell Smarts of the LSC.

* * *

There’s no better place to begin than the case of Gavin Hansen, a barrister, who was charged by LSC plod with breaching Rule 47 of the Legal Profession (Barristers Rules) 2004.

Apparently Gav conferred with his client and a lay witness about an issue that could affect evidence to be given by that witness.

The events occurred in 2005 when Hansen was acting for a husband accused of the assault and rape of his wife.

Hansen saw the wife and husband, distressed and crying, just outside his chambers.

Hansen did not know who she was, but was told by his client that the women was his wife and that she wanted to withdraw the complaint.

Hansen introduced himself and his client’s wife confirmed she did wish to withdraw.

She said that the police had told her that she could not withdraw the complaint and, in any event, her husband would not go to jail if convicted.

Hansen then took the woman to see the crown prosecutor.

The matter was mentioned before the trial judge who recommended that the client have different legal representation and told Hansen that he was considering referring the matter to a legal disciplinary tribunal for action.

The trial Judge directed the registrar of the court to lodge a complaint about Hansen with the LSC because he may have been in breach of the bar rule that prohibits counsel from conferring with his client and a lay witness about an issue that might affect the evidence of the lay witness.

LSC plod contended when Hansen spoke to the woman in the street, with his client at least two or three metres away, that this constituted a “conference” between all three participants in violation of the rule.

The LSC asked the Bar Association to conduct an investigation. It recommended that no charges be brought against Hansen.

imageThe maestro nonetheless ploughed on and charged Hansen.

Justice Margaret White (snap), sitting as the tribunal, dismissed the charge:

“The tribunal is not prepared to infer that the client was within earshot; is not satisfied that there was a ‘conferring’ with more than one lay witness at a time; or that it related to a contentious issue which could be affected by, or could affect, evidence to be given by any of those witnesses.”

It had taken the LSC operatives over three years to come up with a zero result and this troubled White J, who said in her findings last June:

“The tribunal is most concerned that this incident occurred in May 2005. The reference by the District Court judge was immediate. It has taken over three years to have the matter resolved with no delay coming from the respondent. The burden and anxiety this placed upon the respondent has, no doubt, been considerable.”

When Hansen applied for costs against Britton and his troops White found that the now cleared barrister had not demonstrated “special circumstances”.

* * *

imageFresh from this triumph Britton appealed to the Queensland Court of Appeal from the tribunal’s decision concerning solicitor Paul Voll.

The tribunal had found Voll guilty of professional misconduct, ordered him to be publicly reprimanded and fined $20,000.

It found that he had been incompetent and lacked candour with his client and had lied to the Queensland Building Tribunal.

But, the LP tribunal found Voll was not unfit to practise:

“The respondent is nevertheless very much on notice now, that should he commit any further breach of significance, there will be a compelling case for barring him from practice, in the short or long term. But at this stage, though his misconduct was plainly unacceptable, it does not demonstrate an unfitness to practise.”

But Britton was determined that Voll be struck from the jam roll.

However, there was a minor strategic blunder. The LSC forgot to submit on appeal that the finding made by the tribunal as to Voll’s fitness to practise was wrong.

This resulted was an amusing submission made by the commissioner that, because the LSC had sought a strike-off order in the discipline application, this somehow constituted an implied attack on the tribunal’s finding of fitness to practice.

The Court of Appeal dealt with this fetching submission in the following manner:

“Somewhat curiously, the appellant made no direct attack on that finding. That he may have intended to do so by the orders he sought on appeal is no answer. He was obliged clearly and unequivocally to set out the grounds on which he relied in his notice of appeal; the respondent could not be expected to speculate what was really sought. For this court to substitute a finding that the respondent was unfit to practise and order that his name be removed from the local roll would be to deny him procedural fairness.”

As the Court of Appeal is not shackled by s.492 of the Act it dismissed the appeal and ordered Britton to pay Voll’s costs of the appeal.

* * *

imageBut there’s more.

Who can forget Legal Services Commissioner v Madden (No.2) and the way Daphnis de Jersey got his bottom well and truly whacked by the Court of Appeal?

Solicitor James Madden was charged with a number of things, including overcharging, breach of the Trust Accounts Act 1973, acting without instructions and a lack of due diligence and competence.

Importantly the LSC plod did not allege, in the discipline application or in the statement of agreed facts tendered to the tribunal, any dishonesty on the part of Madden.

The matter proceeded in the tribunal as a hearing to determine the appropriate penalty.

The commissioner sought a fine, public reprimand and some reimbursement to Madden’s clients.

This was simply not good enough for Daphnis, sitting in the Legal Practice Tribunal, who suggested that dishonesty might still be found.

Madden’s counsel pointed out the troubling fact that no dishonesty was alleged in the application or by the commissioner.

The LSC counsel supported this submission.

That did not inspire Daphnis, who invited the LSC to amend the discipline application so as to allege dishonesty. The proceedings were adjourned to allow the commissioner to ponder the matter.

When it came on again counsel for the applicant commissioner told the tribunal that the LSC did not intend to amend the discipline application to allege dishonesty.

But Daphnis is nothing if not determined.

Extraordinarily the tribunal provided a document to the parties entitled “arguable inferences from agreed facts”.

It said:

1. Charge two

(a) That having, through delay and inattention, created a situation where the defendant had to make the ‘first application’, the respondent chose deceitfully to refrain from informing his client of that application and seeking his client’s instructions, in the hope he could resolve the matter without his client becoming aware of it, and thereby preferred his own interests over those of his client;

(b) That the respondent implicitly represented to the defendant’s solicitor that the respondent had his client’s instructions, whereas he did not;

(c) similar to (a) in respect of the ‘second application’;

(d) similar to (b) in respect of the ‘second application’;

(e) appearing before the court on the ‘second application’, implicitly representing to the court that the respondent had his client’s instructions, whereas he did not.

2. Charge three

(a) That the respondent deliberately debited his client the cost of the ‘first application’ when he knew, or should have known, that fairness meant the respondent should himself have borne them, because the application had been necessitated by the respondent’s own default;

(b) thereby preferring the respondent’s own interests
over those of his client.”

Madden’s counsel pointed out that Daphnis’ job was to sit in front of the bar table and that he could not at the same time be making submissions to himself.

It was also submitted that the tribunal had no power to amend the discipline application and that the only person who could do so was the Legal Services Commissioner, who had declined to do so because he did not consider that Madden had acted dishonestly.

Nonetheless, Daphnis found the tribunal did have power to make findings of dishonesty in the proceedings.

Surprise, surprise, the Legal Practice Tribunal found Madden had acted dishonestly and struck him off.

imageMadden obtained a stay of the tribunal’s order pending the determination of an appeal.

The Court of Appeal had to administer discipline to Daphnis de Jersey when it crushed the tribunal’s findings 3-0.

According to Hugh Fraser, Catherine Holmes (pic) and Margaret White sitting in the Court of Appeal, Daphnis had no power to amend the charges or to proceed to find dishonesty.

The whole thing was a terrible mistake.

Madden copped a number of supervisory orders and kept his ticket.

I wonder if there was a certain froideur in the judge’s tea room and disputes between Daphnis and the appeal members over who got the last lamington.

Someone had to cop it and the LSC plod came in for a bollocking.

The appeal judges said that the commissioner was at fault by not providing Daphnis with the correct information:

“It should be noted here that, so far as the appeal record reveals, important decisions referred to in these reasons, notably including Walsh, were not brought to the tribunal’s notice. Nor, it seems, did the tribunal have the benefit of the detailed submissions made in the appeal, which included an extensive analysis of the relevant provisions of the Act and reference to other authorities.

Given the significant role of the commissioner in the administration of the regulatory scheme under the 2007 Act the tribunal is entitled to expect that the commissioner will ensure that appropriate submissions about the construction of the Act are made if such issues arise.”

There was a costs order against Britton, courtesy of the Court of Appeal.

* * *

imageThe regulator got punished again in Legal Services Commissioner v Winning.

Subscribers will recall our sensitive report on Rockhampton solicitor Doug Winning, which revolved around bikies, paedophile swimming coaches and the twin scourges of alcoholism and obesity sweeping the legal profession in Rockvegas.

Doug acted for the local chapter of the Rebels motorcycle club and, according to the particulars of the complaint, he telephoned a member of the gang before a police raid and said:

“Mate this is fuckin’ urgent. I’ve been runnin’ around tryna find everybody. I can’t get a phone number mate. I’ve got some good drum that the coppers are gonna raid all the rebels in Rockhampton at five o’clock in the morning.”

A little later that day he provided further helpful advice to his client:

“Yeah, so you know like if they get rid of bongs particularly, fuckin’ cash because they’ll steal the c*** ... It would be lovely if they came up with fucking nothing … [unintelligible] ... get rid of fuckin’ bongs, fuckin’ cash … Anything … Everything, ya know.”

There was plenty of other language, too salty for this family organ.

The attitude of the Bureau de Spank to this banter by a practitioner engaged in the rough and tumble of the criminal jurisdiction was quite over-the-top and thankfully White J has given the profession guidance that even the infernal busybodies at the LSC should be able to understand.

Here are the new rules, as propounded by Justice White J:

Rule 1: If you’re going to abuse another lawyer and tell him to “f**k off” make sure that you’re a criminal lawyer and the abuse is by phone.

Rule 2: When the Australian Crime Commission burst through your door executing a search warrant and start taking the place apart don’t abuse them, offer them a cup of tea.

Rule 3: When negotiating the payment of witness petrol expenses with the Australian Crime Commission it is not advantageous for the solicitor to say: “Tell that f..king bitch to stick her f..king petrol money up her f..king c**t.”

Rule 4: It’s quite OK when responding to racial and professional slurs (“you work for a mob of boongs … and you are a corrupt c**t…”) to remind opposing practitioners of their need to maintain work/life balance as an aid to their general well-being (e.g. “you’re a fat f..king slut … who has fallen off too many bar stools”).

Rule 5: The time to have a good heart to heart about a colleague’s alcohol issues (“Jolene is nothing but a f..king drunk … she falls of f..king bar stools every five minutes.) is not at the bar table in the Rockvegas Supreme Court.

Rule 6: It is acceptable for practitioners to discuss employment-related issues affecting the legal profession outside the Supreme Court in Rockvegas (“fat slut … no-hoper drunk”) including telephone procedure (“I don’t want your staff calling my office. I don’t want that f**king slut calling my office”).

Rule 7: Expressing concern about law reform issues surrounding the office of the Director of Prosecutions is acceptable when defending yourself on criminal charges. (E.g. “I take strong exception to this stupid woman, this Leanne Clare, putting this rubbish before a court. I’m not a paedophile. I’m not a swimming coach. But my only avenue of redress is to come before these courts … And can they get this stupid woman, this silly woman who is the Director of Public Prosecutions up here to argue it. I’m not a paedophile and I’m not a swimming coach. I’m a respected practitioner of the court and we all know she was involved in grubby little deals to protect paedophiles. I just seek justice. I’m not a paedophile, I’m not a swimming coach.”)

Rule 8: Don’t accuse the plod of lying in court unless you can prove it. (E.g. “And I regard this man as being unethical … Totally unethical … He has told me lies on the phone.”)

Rule 9: It’s acceptable to tip off your bikie clients that the plod are on the way (‘’I’ve got some good drum that the coppers are gonna raid all the rebels in Rockhampton at five o’clock in the morning”) as long as practitioners use polite language (“Yeah, so you know like if they get rid of bongs particularly, f…kin’ cash because they’ll steal the c**t…”).

Surely, even the LSC plods can follow these simple no-nonsense rules.

Margaret White has just brought down the tribunal’s findings on penalty for the Rockhampton potty mouth.

He is to visit an anger management expert at least every six months for the next two years, complete the Queensland Law Society’s rigourous practice management course, and undergo mentoring by another practitioner.

Even though the LSC was successful and entitled to costs, by consent the parties agreed that there should be no order as to costs.

Terrific outcome for the meddlers.

Isn’t it about time they left us alone so we can get on with our important work for the betterment of Queensland?

Sir Terence O’Rort reporting
 
 

Reader Comments

Posted by: Anonymous
Date: November 20, 2008, 7:58 pm

Is it relevant that White J is a naval officer, married to a naval officer and the mother of a naval officer. The term "salty" as a descriptor of language recognises discussions in naval messes are often as robust as those at bar tables.
Posted by: Anonymous
Date: November 20, 2008, 7:59 pm

Check out the most recently reports of P C Briton's forays to the the tribunal and committee. If he is nailing the worst in the Queensland profession then Queensland lawyers have a lot to be proud of and the need for Queensland taxpayers to continue funding his office, even with the inbuilt advantages highlighted by Sir Terence is doubtful. No doubt some people from his office will move on to become regulators of the international finanacial services/banking industry at which time we will all sleep sounder in our beds.