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Court in the Act
27 January, 2003  
Vic Bar & Grill caught with LIV in disciplinary snafu. What next?

The Law Institute of Victoria kicks off to a nervy new year, what with the Court of Appeal’s nickpicking finding that disciplinary processes are mired in illegality. The Bar & Grill is also caught in the mess. The High Court and the Bracks’ regime are being asked to fix it

The Law Institute of Victoria has had a nervy start to its new year following last month’s Court of Appeal finding that its disciplinary procedures were mired in unlawfulness arising from inadequate paperwork.

The crux of the Court of Appeal decision turns on what constitutes proper “delegation” according to s.151 of the Legal Practice Act, 1996. Apparently the institute’s written minutes aren’t nearly good enough to confer an authority to commence disciplinary action. The Court of Appeal expects a much more formal delegation of authority than that.

The decision comes in the finest tradition of appeal courts strewing technical impediments in the path of the profession’s procecutors.

It throws into confusion the legality of disciplinary determinations commenced by the LIV since 1997. The institute is to seek special leave in the High Court in an attempt to overturn what does seem a dreary piece of nickpicking from “Soapy” Stephen Charles, J.M. Batt and W.F. Ormiston. The effect of their decision has been stayed pending the outcome of the appeal.

Draft legislation designed to validate disciplinary findings, whose force is now doubtful, also is in preparation by the Victorian government.

And it is not just the LIV which is embarrassed by the procedural gaffe, but the Victorian Bar & Grill too is caught in the schmozzle.

We approached the Grill’s media muffin, one Ross Nankivell, who went away to check with his superiors as to the implications of the decision for his outfit. He then announced in a fruity tone: “We have no comment at this point.”

Thanks Nan. Not that the Grill is overly burdened by its disciplinary function, but nonetheless it will be thankful for some retrospective tightening of any looseness in its paperwork.

As Ormiston so succinctly said it in agreeing with Soapy and Batt in their judgment of December 13, 2002:

”... I find it difficult to accept that the mere confirmation of the [LIV] minutes, though the minutes were obviously enough in writing, was sufficient to satisfy the statutory requirements.”

At stake, Ormiston pointed out was:

”... a power which permits the commencement of disciplinary proceedings before the Legal Profession Tribunal, potentially leading to loss of the right to practise. The corporation’s minutes are not a means of delegating in writing a power of such an important kind.”

Never mind that the case in question involved matters described by Soapy and Batt as revealing “a scandalous position.”

Scandalous indeed. In February 1997 the Law Institute investigated the mortgage practice trust accounts of two Victorian solicitors coyly referred to in the Court of Appeal judgment as “B” and “G”.

This resulted in receivers being appointed in May 1997 and 22 charges of professional misconduct being laid in October 1999.

In April the following year it appears the Law Institutive suffered an attack of the jitters and applied to the Legal Profession Tribunal to withdraw all charges because it claimed it had failed to follow strict guidelines. The tribunal rejected the LIV’s generous offer and a second investigation into “B” and “G” began in May 2000, with charges finally being laid in October 2000.

As the Court of Appeal recalled:

“The minutes for the meeting of 18 May 2000 Ö record the approval of recommendations as to the delegation of various powers, including in particular a recommendation that in relation to G and B only, the Council delegate to Ian Maxwell Dunn alone its powers pursuant to s.151 of the new Act. The last page of the minutes for 18 May 2000 contains a confirmation of them taking the form of the typed word ‘CONFIRMED’ followed by the signature ‘Tina Millar’ [right] of the then Chairman (sic) and the handwritten date ‘19.6.2000’. Mr. Dunn was at the time the chief executive officer of the RPA.”

Counsel for “B” and “G” objected primarily on the ground that the institute’s procedure for delegation was invalid.

However, the tribunal was more than satisfied that correct procedure had been followed, saying in its decision of November 26, 2001:

“We do not consider that a formal instrument of delegation is necessary to meet the requirement of s.313 that the delegation be in writing.”

The Court of Appeal however was far from satisfied:

“But what is required by s313 of the new Act is the making of a delegation in writing, namely the doing of an act.”
It added:

“It seems to us that the wording of s.313 is plain and unambiguous. The question remains then, did the passage of the resolution and the minuting of it, or the signature of the chairman at the next meeting, amount to such a delegation in writing? We think not.”

The court allowed the appeal and dismissed all charges against “B” and “G”.

A distressed Law Institute has been in talks with the Bracks’ government over the amendment to the Legal Practice Act.

Yet, just two weeks ago the Law Institute’s new president, Bill O’Shea (left), announced that he would be keeping a close eye on the Bracks’ government. The good old LIV will provide much needed “checks and balances on the workings of government”. Oddly, he added, the “regulation system in Victoria ain’t broke”.

Now it seems the LIV and the Grill are on their hands and knees asking the Attorney General, Rob Hulls, and the Vicar of Bracken to fix up the snafu over the dubious “document of delegation”.

Welcome to your new job, Bill.