Byrne v Legal Services Commissioner [2010] VSCA 162

Byrne v Legal Services Commissioner [2010] VSCA 162 - VSCA 2010 case summary — Zoe

[9]

... the appellant is a barrister and solicitor of the Supreme Court of Victoria who carries on practice as a sole practitioner in Melbourne. For some time in April 2006, he acted for a Mr Peter Smirnios in Supreme Court proceedings. But in May 2006 Mr Smirnios consulted Wisewoulds, solicitors, and thereafter that firm took over the conduct of the matter.
In the following months, a deal of correspondence passed between the appellant and Mr Paul Marsh, who was the partner of Wisewoulds acting for Mr Smirnios. It began on or about 7 June 2006 with a telephone request by Mr Marsh that the appellant hand over his file in the matter. The appellant refused to do so, claiming a lien over the file for his costs, and he also refused a further request made by Mr Marsh to supply Mr Marsh with a copy of the fee agreement. The conversation terminated when Mr Marsh threatened that he would complain to the Institute unless the appellant provided a copy of the fee agreement.
On 13 June 2006, Mr Marsh wrote to the appellant confirming his request for a copy of the fee agreement. He concluded the letter with reference to the appellant's claim to a lien over the file and asked that the appellant set out the basis on which the lien was claimed.
The appellant responded by fax later in the day requesting a copy of the notice of change of practitioner and of the complaint which Mr Marsh had said that he would make to the Institute if a copy of the fee agreement were not provided. The appellant also explained that he was claiming a lien over the entire file until his fees were paid and he added that he would forward the file if Mr Smirnios paid his fees or if Wisewoulds undertook to pay them on receipt of the file.
On 19 June 2006, Mr Marsh wrote again to the appellant. He enclosed a copy of a notice of appearance he had filed on behalf of Mr Smirnios and he reiterated his request for a copy of the fee agreement. He also asked for an explanation of any fees which were claimed to be outstanding; a trust statement showing all moneys paid by Mr Smirnios; and an explanation of the legal basis upon which the appellant was claiming a lien over the file. The letter concluded with this:

[34]

As the judge observed, Wisewoulds' letter of complaint alleged that communication between Wisewoulds and Mr Byrne had been marred by Mr Byrne's manner, method of communication and irrational behaviour. The gravamen of the complaint was not only that the appellant had failed to provide Wisewoulds' with a copy of the fee agreement but also that the appellant had failed to respond reasonably and professionally to requests that he do so. Contrary to the appellant's contentions, the complaint was not about the nature or amount of the costs claimed by the appellant but as to the nature of the conduct of the appellant in response to repeated requests that he provide a copy of the fee agreement to Wisewoulds.
Counsel for the appellant submitted that, even if that were so, the alleged communications between the appellant and Wisewoulds were in fact courteous and not offensive or provocative and certainly not in contravention of Rule 21. I reject that submission. In my view, the appellant's alleged conduct in repeatedly ignoring Mr Marsh's apparently reasonable requests for a copy of the fee agreement, coupled with the appellant's references to idle threats and bullying, were rude and in context sufficiently discourteous, offensive and provocative as to be capable of contravening Rule 21.
Counsel for the appellant submitted further that the appellant was under no obligation to provide a copy of the fee agreement. For present purposes I am prepared to assume that was so. But that does not alter my perception that it was not unreasonable for the commissioner to take the view that the complaint was a 'disciplinary complaint'; at least to the extent that it involved a complaint as to 'unsatisfactory professional conduct' by the appellant. I agree with the judge that it is at least fairly arguable that the appellant's conduct in steadfastly ignoring Mr Marsh's requests for a copy of the fee agreement and in corresponding in the strident and intemperate terms which he employed amounted to unprofessional conduct.[6]

[178]

96 But should the appellant be now permitted to seek such relief, and should such an order be made? In my opinion, the following considerations are pertinent: (1) the subject-matter of the complaint dates back to events which occurred in April and May 2006; (2) what is intended by the Act to be a speedy consideration and resolution of complaints remains bogged-down at an initial stage; (3) the appellant has twice brought proceedings in the Supreme Court to challenge preliminary decisions of the Commissioner; (4) with one exception, neither proceeding has succeeded on the merits of arguments advanced by the appellant. On the first occasion, this Court identified a ground - not identified and relied upon by the appellant - in consequence of which the appeal had to be allowed despite all the appellant's grounds being rejected. On the present occasion, the appellant's many grounds of complaint were rejected below, and I would reject all but one of the contentions pursued on the appeal; (5) this whole matter has taken on a life of its own, unrelated to what might be thought to be the relative lack of seriousness of the allegations raised by the complaint. It appears to me that no participant[41] - the Commissioner included, but particularly the appellant - has distinguished himself or herself by signs of balance. There is every reason to apprehend, if an order was made for further reasons, that the provision of such reasons would trigger a further judicial skirmish in which the appellant would continue his habit of making a constellation of unjustified complaints. Again, there would be delay; (6) the nature and details of the complaint made against the appellant, and the detail of his response, are well-known. The Commissioner's conclusion that the complaint was a disciplinary complaint seems to me to be unimpeachable, although the true seriousness of the matters raised by the complaint is another matter; (7) this Court made it clear, on the earlier occasion, that not much was required by way of reasons

At a glance

Court

Decision date

Before

Source

Judgment (232 paragraphs)

Byrne v Legal Services Commissioner [2010] VSCA 162 (25 June 2010)

Parties

Legislation Cited (4)

Cases Cited (8)