Kay v Legal Profession Tribunal [2000] VSC 460

11. The present case involves complaints made to Victorian Lawyers RPA Limited by three former clients named Zafar, Nikolaou and Angell. The various complaints resulted in charges being laid against the plaintiffs.

14. The charges were first fixed for hearing by the Tribunal on 5 May 2000.

17. However, on the previous day the plaintiff sought an adjournment of the charges because of his then medical condition. In support of his application the plaintiff relied upon a medical certificate dated 3 May 2000 of Dr. A.I. Hechtman. The certificate reads:

" 03.05.2000 To Whom It May Concern, This is to state that I have examined Mr. Constantine Kay and find that he is suffering from an acute anxiety state in relation to his work. This has severely compromised his work ability in the short term and he is not fit to appear at a Tribunal Hearing on the 5th May as this will severely exacerbate his symptoms."

21. The Tribunal agreed to the application and on 5 May the charges were adjourned to 2 June 2000.

24. On 1 June 2000 counsel for the plaintiff wrote a letter to the Tribunal enclosing a further medical certificate from Dr. Hechtman dated 30 May 2000 and sought an adjournment of the charges for a further period of three months.

" 30 May 2000 To Whom It May Concern, Although Mr. Constantine Kay is presently capable of performing his professional legal duties, he is still affected by substantial anxiety specific to the stress of attending the Tribunal Hearing - currently scheduled for 2nd June 2000. In my opinion, he will require a period of three months to recover sufficiently before being able to attend such a hearing."

31. The plaintiff gave no notice to Victorian Lawyers RPA Limited on 1 June of his intention to apply for a further adjournment of the charges. The first indication of that was given to its counsel by counsel for the plaintiff at the Tribunal on the morning of 2 June.

34. At that time Victorian Lawyers RPA Limited had its witnesses present at the Tribunal ready to give evidence in respect of their complaints.

37. On 2 June counsel for the plaintiff applied for a further adjournment of the charges. The application was opposed by counsel for Victorian Lawyers RPA Limited.

40. Counsel's submissions in that regard appear at page 1 et seq of the transcript of the proceedings that day. The relevant passage reads:

"MS RYAN: Well, sir, I would object to the adjournment on the basis that this is the second time the matter has sought to be adjourned and the practitioner relies on a medical certificate which says the practitioner is presently capable of performing his professional duties; if that's the case and he's currently working, it would seem to me why he couldn't attend the Tribunal and give evidence. So in my submission the medical certificate is fairly weak and does not support the inference that he's incapable of attending here and giving evidence. My instructions are to oppose the application for an adjournment. I have witnesses who have come and who are available to give evidence, two complainants in the matter and we certainly don't want any further adjournments because of the cost and the inconvenience caused to the witnesses concerned."

44. Following those submissions there was discussion between the Deputy Registrar and counsel for the plaintiff concerning the failure of the plaintiff to have Dr. Hechtman available to give evidence concerning the plaintiff.

47. At one stage the transcript records the Deputy Registrar as saying:

"I would have thought, Mr. Marshall, that if Mr. Kay was serious about an adjournment he would have the doctor here now."

51. At page 3 of the transcript the Deputy Registrar is recorded as saying:

"DEPUTY REGISTRAR: Answer me this, Mr. Marshall: isn't it so that participation in one's professional regulatory mechanism is part of the process of practising the law and if one is capable of carrying out the legal duties associated - we'll call it intra-office duties, one should also be capable of carrying out the extended duties which might include participation in the regulatory mechanism. That being the case, if one says that legal practice of necessity involves participation in proceedings such as this - did Mr. Kay suggest that he's - or if his doctor suggests that he was capable of part of his professional duties but not others, doesn't that place him in some danger of not being fit to practice?"

55. And at page 4 et seq the following exchange occurred:

"DEPUTY REGISTRAR: The problem I have is that this second medical certificate which has been produced, might I say, at the last moment - as was the first, is in conflict with the contents of the first certificate. The first certificate says that Dr. Hechtman finds that Mr. Kay is suffering from an acute anxiety state in relation to his work. 'This has already compromised his work ability in the short-term and he's not fit to appear at the Tribunal'. The second one says, 'He's presently capable of performing his professional legal duties but he's suffering from situational anxiety specific to the stress of attending the Tribunal hearings'. Now, those are in total conflict those two certificates. MR. MARSHALL: Perhaps he's getting better - - - DEPUTY REGISTRAR: Perhaps he is. Look, I'll flag that I'm not impressed by these certificates, the matter is still open to argument but I'll flag right now that I'm not impressed by these certificates; nor am I impressed by the absence of any further evidence. I don't know whether Dr. Hechtman has any qualifications in psychiatry or psychology, the letterhead is West Hawthorn Clinic and a list of doctors' names or people's names with doctor in front of them; I presume that they are medical doctors. I think it would be fair to say that with a letterhead like that, they are probable GPs. I'm not entirely sure that Dr. Hechtman has any particular qualifications to even make these observations. MR. MARSHALL: I wonder if it may be appropriate, sir, if the matter be stood down very briefly and I could make some enquiries with respect to that because obviously - - - DEPUTY REGISTRAR: The only enquiries that are going to impress me are the ones that say that Dr. Hechtman is here now. MR. MARSHALL: The enquiry may elicit a response that he can be here within a period of time. DEPUTY REGISTRAR: Everyone is here now, Mr. Marshall. I know this is putting the pressure on you but it's your application. MR. MARSHALL: I understand that, sir. I'm not of course in a position to call him now. I am in a position within minutes to determine his qualifications and the position he holds and the nature of the clinic. DEPUTY REGISTRAR: I wouldn't be prepared to take that through you, Mr. Marshall. Is this the only material you are placing before me? MR. MARSHALL: It is the only material I have. DEPUTY REGISTRAR: Yes. I have to say that I do not accept that a legal practitioner can be capable of performing day-to-day legal activities but not be capable of standing to account before his own professional tribunal, it's part of practice and if one is not capable of doing so then one risks his capacity to be fit for practice. Now, so long as Mr. Kay is practising, in the absence of far greater evidence than is before me at the moment, I intend to proceed with these matters today."

59. At one stage of the discussion counsel for the plaintiff did ask that the hearing of the charges be adjourned for a week to enable him or the plaintiff to arrange for Dr. Hechtman to appear before the Tribunal. Although the Deputy Registrar did not specifically deal with that application it is clear from the transcript that no such adjournment was to be granted.

62. Having refused the application for an adjournment the Tribunal proceeded to hear and determine the charges.

65. In the case of Zafar it found that the plaintiff had failed to use his best endeavours to complete work on behalf of the client as soon as possible, had acted recklessly in allowing the delay to occur and that his conduct constituted a reckless contravention of Rule 3 of the Solicitors' (Professional Conduct and Practice) Rules 1984. The plaintiff was then fined $2,000 and ordered to pay the costs of Victorian Lawyers RPA Limited which were fixed at $2,600.

68. An almost identical finding was made in respect of the complaint of Nikolaou, the only difference being that the Tribunal found that the plaintiff had been wilful in allowing the delay to occur rather than reckless.

71. In respect of the complaint of Angell the Tribunal found that the plaintiff's conduct constituted a wilful contravention of Rule 28 of the Solicitors' (Audit and Practising Certificates) Rules 1990.

74. No fine was imposed on the plaintiff in respect of the complaints of Nikolaou and Angell. However, he was ordered to pay costs of $3,200 to Victorian Lawyers RPA Limited.

77. On 31 July 2000 the plaintiff filed an originating motion in the Court naming as defendant the Legal Professional Tribunal and by which he seeks to have the orders made by the Tribunal on 2 June brought up into this Court and quashed.

80. The following are the grounds upon which the plaintiff seeks that relief:

"1. That the Tribunal was in error in failing to disqualify himself on the grounds of bias. 2. The Tribunal was in error in proceeding with the hearing. 3. The Tribunal failed in his duty to act fairly in all matters before him. 4. The Tribunal failed to accord Natural Justice to the Plaintiff. 5. The Tribunal failed to accord Procedural Fairness to the Plaintiff."

84. The plaintiff did not rely on ground 1 of those grounds and it can therefore be disregarded.

87. In addition to the originating motion I have a summons before me filed by the plaintiff by which he seeks an order granting him leave to join Victorian Lawyers RPA Limited as a defendant to the proceeding.

90. The effect of Rule 56.02(1) of the Supreme Court Rules is that an originating motion seeking orders in the nature of certiorari, as the plaintiff is in the present case, must be filed in the Court within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.

93. Rule 56.02(3) provides that the Court shall not extend the time fixed by paragraph (1) except in special circumstances.

96. Accordingly the plaintiff's application to now join Victorian Lawyers RPA Limited as a defendant to the proceeding is well out of time.

99. It was argued by counsel for the plaintiff that the Court has a discretion in the matter and may exercise it by extending any time restrictions imposed by the rules including that specified by Rule 56.02(1).

102. In that regard he pointed to the provisions of a number of rules of court in particular Rules 1.14, 2.01, 2.04, 3.02, 9.05 and 9.06.

105. There is no doubt but that the Court has an overall discretion to extend any of the times specified by the Rules.

108. But when one comes to considering an extension of the time prescribed by Rule 56.02(1) one is enjoined by Rule 56.02(3) to do so only in special circumstances.

111. In my opinion one cannot overlook the specific provision of that rule when considering an application such as the one presently before the Court.

114. In Denysenko v. Dessau and Another[1] I held that "special" where used in Rule 56.02(3) means something unusual, uncommon, exceptional or extraordinary. I adhere to that view.

117. There are three matters relied upon by counsel for the plaintiff which it is said constitute special circumstances.

120. In the first place it is said that the originating motion was drawn by counsel, secondly that Victorian Lawyers RPA Limited was aware as early as 2 August 2000 that the plaintiff intended to challenge the Tribunal's decision, and thirdly that Victorian Lawyers RPA Limited has an interest to oppose the claim of the plaintiff within the meaning of Rule 56.01(2) of the Rules.

123. I am not persuaded, whether looked at individually or taken together, that those factors constitute special circumstances.

126. In my opinion the fact that counsel drew the originating motion is in the circumstances of this case irrelevant.

129. The plaintiff is an experienced practitioner well familiar with the workings of the Tribunal and the steps available to him to seek to have any orders made by it quashed.

132. Nor, in my opinion, can the fact that Victorian Lawyers RPA Limited was aware within the 60 day period of the fact that the plaintiff intended to challenge the Tribunal's decisions.

135. Clearly Victorian Lawyers RPA Limited does have an interest to oppose the claim of the plaintiff. But that is not a special circumstance. It is nothing unusual, uncommon, exceptional or extraordinary.

138. I can find no proper basis for granting the defendants' application to extend the time provided by Rule 56.02(1) and his application in that regard is dismissed.

141. In Cucu v. District Court of New South Wales[2] Meagher J.A. said at p.249:

"I have read Kirby P.'s judgment in draft, and reluctantly agree with it. I say 'reluctantly' because in my view a trial judge's decision to grant or refuse an adjournment ought to be almost inviolable."

"It is rare that a court such as this - either in appeal or in judicial review - will disturb the decision to grant or refuse an adjournment. This is because such decisions are essentially discretionary in character. They are made, as necessity requires, quickly and as the justice of the application strikes the decision-maker. The reasons for not disturbing such decisions are too well known to require lengthy elaboration: see Sali v SPC Ltd. [1993] HCA 47; (1993) 67 ALJR 841 at 848-849; Sydney City Council v. Ke-Su Investments Pty. Ltd. (1985) 1 NSWLR 246 at 250; Adamopoulos (at 77); GSA Industries Pty. Ltd. v. NT Gas Ltd. (1990) 24 NSWLR 710 at 712. These principles do not, however, mean that this Court forfeits its responsibility to consider a claim that a refusal of an adjournment has miscarried and/or that it has occasioned such a serious risk of miscarriage of justice that the Court must intervene."

149. In my opinion similar observations to those made by Kirby P. and Meagher J.A. can be made in relation to Chairpersons of Statutory Tribunals.

152. In the present case the Tribunal would appear to have refused the plaintiff's application for the following reasons:

1. The plaintiff had previously sought and been granted an adjournment of the charges.

2. The application for the adjournment was made at the last moment and at a time when the witnesses to be called on behalf of Victorian Lawyers RPA Limited were present before the Tribunal waiting to give their evidence in relation to the three complaints.

3. That if the plaintiff was sufficiently well enough to attend his practice and run his practice, as he was, in the absence of cogent medical evidence to the contrary effect he should be well enough to attend before the Tribunal and give evidence in relation to the three complaints.

158. Having considered the reasons given by the Tribunal for refusing the plaintiff's application for an adjournment I am not persuaded that the Tribunal failed to exercise its discretion judicially or based its refusal upon some wrong principle.

161. The plaintiff had already been granted one indulgence by the Tribunal. If his condition was such that he was unable to appear before the Tribunal on 2 June 2000 he must have been aware of that fact well prior to that date and Victorian Lawyers RPA should have been given adequate notice of his application prior to the day of the hearing. His failure to do so is hardly to be commended.

164. The orignating motion and the summons will be dismissed. I order that the costs of Victorian Lawyers RPA Limited of the summons be taxed and paid by the plaintiff.

167. As Victorian Lawyers RPA Limited was not a party to the originating motion I make no order as to the costs of the originating motion.

[1] [1996] VicRp 65; (1996) 2 V.R. 221

[2] (1994) 73 A.Crim.R. 240