Kay v Legal Profession Tribunal & ANor [2000] VSC 463

11. The first complaint concerned a former client of Mr. Kay named Thai and related to a sum of $3,000 which Mr. Kay had retained for legal costs from a compensation payment of $18,000 made to Thai in respect of an injury he had received to his hand in an accident at work.

14. There was no dispute as to Mr. Kay's action in that regard. In evidence, however, he swore that he did not believe that s.97(4) of the Accident Compensation Act 1985 which provides that compensation payments must be paid in full to the client precluded him from doing what he did.

17. The Tribunal found that Mr. Kay was "most competent" in the field of personal injury work. It further found that s.97(4) of the Act prohibited Mr. Kay from deducting the sum of $3,000 from the settlement figure.

"In the circumstances I find that the legal practitioner fell short of the required standard of competence, care and probity in handling the accident claim of the client. His deduction of solicitor client costs of $3,000.00 from the client's compensation award of $18,000.00 in defiance of the provisions of Section 97(4) of the Accident Compensation Act 1985, is, in my opinion, conduct which would reasonably be regarded as disgraceful and dishonourable by his professional brethren of good repute and competency."

24. In my opinion such observations were open on the facts and more than justified. I say that for this reason.

27. Section 97(4) of the Accident Compensation Act states:

"(4) Compensation under this Act is absolutely unalienable, whether by way or in consequence of any sale, assignment, charge, execution, bankruptcy, attachment, legal process or by operation of law or any other means and no claim may be set off against compensation under this Act."

31. There could be no clearer statement of the legislature's intention in the matter. Mr. Kay is an experienced solicitor in the field of personal injury litigation. It is inconceivable that he did not appreciate that the sub-section prohibited him from deducting his legal costs from the compensation payable to Thai. Yet he did so. In my opinion he deserved strong criticism for his behaviour in that regard.

34. The second complaint concerned a former client of Mr. Kay named Azzopardi. Mr. Kay had acted for her concerning a claim for compensation.

37. Azzopardi disputed a lump sum account for $900 rendered to her by Mr. Kay, alleged delay, poor advice, and poor handling by him of her compensation claim. She further alleged that he had been guilty of abusive and rude behaviour towards her and had acted in an intimidating manner.

40. Mr. Kay's bill of costs was taxed by the Law Institute Costing Service on two occasions. On the first occasion his costs were taxed at $584.50 and on the second occasion at $630.10. The Tribunal found that the appropriate figure for costs was the higher of the two and reduced Mr. Kay's bill to $630.10.

43. As to the second complaint, the Tribunal found that there had been significant delay in the prosecution of Azzopardi's claim for compensation throughout the whole of the period Mr. Kay had acted for her in particular from May 1997 to February 1998. Having regard to the evidence placed before the Tribunal it is difficult to see how the Tribunal could have arrived at any other conclusion in the matter.

46. Finally so far as the second complaint is concerned the Tribunal rejected Azzopardi's allegations that Mr. Kay had been abusive or rude to her, or had acted in an intimidating manner.

49. The third complaint was made to the Tribunal by a former client of Mr. Kay called Novacevska.

52. On 24 August 2000 Mr. Kay appeared before the Tribunal at a directions hearing in respect of Novacevska's complaint. According to the content of Mr. Kay's affidavit the issue to be determined that day was whether the complaint should be heard on 20 September 2000.

55. Mr. Kay gave evidence before the Tribunal to the effect that 20 September was not suitable for him as he was a party to a proceeding in another court case and that he may have to attend the Supreme Court on 20 September. He asked that the complaint be fixed for hearing in December.

58. There is no further detail in relation to that matter in the material relied upon by Mr. Kay in support of his preset application. I do not know whether the case in which he was a party was fixed for hearing on 20 September or whether there was to be some application to the Supreme Court that day in connection with it or why his attendance at this Court on that day may have been necessary.

61. At all events the Tribunal rejected his application that the complaint be fixed for hearing in December and directed that it be heard on 20 September.

64. There is no evidence before me as to what ultimately occurred concerning that complaint.

67. The test to be applied in cases of this nature was formulated by the High Court in Livesey v. New South Wales Bar Association[1] and repeated by it in Re Polites; Ex parte Hoyts Corporation Pty. Ltd.[2]. At p.85 in Polites the Court said:

"The relevant test has been prescribed by this Court in a number of cases and is expressed in Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at pp.293-294 in these terms: '[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it ... Although statements of the principle commonly speak of 'suspicion of bias', we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning.' In applying this test, it is necessary to bear in mind the caution expressed by Mason J. in Re J.R.L.; Ex parte C.J.L. [1986] HCA 39; (1986) 161 CLR 342 at p.352: 'It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson [1976] HCA 39; (1976) 136 CLR 248 and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.' In Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [1953] HCA 22; (1953) 88 CLR 100 at p.116, Dixon CJ, Williams, Webb and Fullagar JJ. said: 'when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that 'preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded', per Charles J., Reg. v. London County Council; Re The Empire Theatre (1894) 71 LT 638 at p.639'."

71. I have considered the matters relied upon by the plaintiff in the present case but have not been persuaded that anything which occurred on any one of the three occasions in question could give rise to a reasonable apprehension that Mr. Colbran will not decide the complaint of Paixao impartially or without prejudice.

74. As I have been at pains to point out, in my opinion the adverse finding made by Mr. Colbran against the plaintiff in respect of the complaint of Thai was inevitable given the circumstances of that case. Nor in my opinion can it be said that the observation made by Mr. Colbran at the conclusion of his reasons was unwarranted and such as to give rise to a reasonable apprehension that if the plaintiff appeared again before Mr. Colbran his case would not be heard and determined impartially.

77. Judicial officers are frequently called upon to deal with the same offender on more than one occasion.

80. The fact that during the course of dealing with a particular offender on one occasion the judicial officer makes a strong comment adverse to the offender is in my opinion, and without more, no warrant for suggesting that if called upon to deal with the offender on another occasion the judicial officer will not deal with him impartially or without prejudice.

83. In the case of Azzopardi the Tribunal found in favour of the plaintiff so far as the complaint of abusive and rude behaviour was concerned and so far as the complaint that he had acted in an intimidating manner was concerned.

86. The other findings were factual findings made on the material placed before the Tribunal by the parties. Again, the fact that the Tribunal made findings adverse to the plaintiff concerning his handling of Azzopardi's case and the quantum of his bill of costs is no justification for concluding that the Tribunal will not deal impartially with any other complaint brought against the plaintiff.

89. The final matter relied upon by the plaintiff is the failure of the Tribunal to accede to his application in relation to the complaint by Novacevska.

92. In the absence of information concerning the matters I have adverted to I can find nothing in the actions of the Tribunal on that occasion which could give rise to a reasonable apprehension that it will not deal with the complaint of Paixao other than in an unbiased manner and according to the rules of natural justice.

95. The plaintiff's originating motion is dismissed. I order that the plaintiff pay the first defendant's costs of the proceeding including any reserved costs.

[1] [1983] HCA 17; (1983) 151 C.L.R. 288 at pp.293-294

[2] [1991] HCA 25; (1991) 173 C.L.R. 78