Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117

Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117 - ACTSC 2009 case summary — Zoe

[5]

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CONDUCT OF YOUR AGENCY AND MR BOUTSIS

Your Department has a long history of failing to communicate at all or to communicate substantively and honestly.

This has been documented in hundreds of cases and shows no sign of improvement.

I act for Mr Boutsis. In my brief encounters with officers of your agency, they have been rude, unhelpful, obsessive and compulsive in relation to their own ego and their own self-importance and otherwise unresponsive.

This persists to the present time.

Mr Boutsis has been the subject of a recommendation which your Department has that he be promptly medically retired and despite the fact that your Department has had that report for about six weeks, it has not communicated to Mr Boutsis; or, at his specific request, to his solicitor, this firm, what it is doing about having him medically retired or arranging pre-retirement payment or anything else.

This is consistent as we say with years of malpractice and maladministration by your organisation. It appears that nothing will change that conduct and that the Department bears grudges against people who engage lawyers, particularly competent ones.

We ask that you please immediately summons the people in your case management area and ask them why it is that they have refused to correspond with me in accordance with Mr Boutsis' directions and requests, refused to provide reports to me, refused to progress his retirement and otherwise behaved in a shamefully non-communicative and disinterested fashion. The practices of people in your case management area are by and large consistent with Mr Boutsis and my experiences and were documented in several Commonwealth AAT proceedings including that of my wife.

My wife remains a teacher in your system and I ask that no recriminations be taken against her because her husband happens to be a solicitor acting for teachers.

Would you please respond to this correspondence, a copy of which is being forwarded to your Minister who seems to mistakenly believe that there is no cause for any intervention or concern with the conduct of your Department.

Thank you,

[8]

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Dear Mr Lander

Thank you for your letter of 24 October 2006 to the Chief Executive, Dr Michele Bruniges about processes surrounding the invalidity retirement of Mr Boutsis. Dr Bruniges has asked me to reply to your letter on her behalf.

The issues raised in your letter have been investigated.

The department received the report of Health Services Australia recommending the invalidity retirement for Mr Boutsis in late September 2006. Relevant Comsuper papers were included which allowed the department to prepare a case for Comsuper, seeking approval for invalidity retirement for Mr Boutsis. The department prepared the submission and forwarded this case to Comsuper on 12 October 2006. Approval for invalidity retirement and pre-assessment payments have been received from Comsuper.

Regarding the issue of providing medical reports to you. Mr Boutsis requested an earlier medical report in June 2006 be sent to you or himself. The department replied to Mr Boutsis that such medical reports were only forwarded to the treating medical practitioner and promised to send the report to the treating specialist. This was promptly sent to the doctor that same day.

I am advised that the invalidity retirement of your client, Mr Boutsis is proceeding through Comsuper.

In your letter you have also made a number of general statements about the Department of Education and Training and its staff failing to communicate, being dishonest, rude, unhelpful, obsessive and compulsive, bearing grudges against people who engage lawyers, as well as general allegations of "malpractice" and "maladministration". Your comments are totally inappropriate and it is impossible to respond in any meaningful way to such generalised and unsubstantiated allegations. Nonetheless, the Department of Education and Training wholly rejects those allegations.

You have also implied that the Department of Education and Training may engage in recriminations towards your wife, who is a teacher in the Territory, an employee of the department, and who has no involvement in Mr Boutsis' case. The department takes your implication very seriously. To suggest that this department or any of its officers would engage in such behaviour is totally inappropriate and is rejected in the strongest possible terms.

It is my intention to refer your letter to the ACT Law Society for investigation as to whether your conduct has breached the standards expected from a legal practitioner.

Yours sincerely,

[11]

Dear Mr Reis

I write to draw your attention (sic) a course of conduct by a legal practitioner in a recent matter, and to ask that you investigate whether that conduct breaches the professional standards expected of a legal practitioner in the Territory.

Mr David Lander, acts on behalf of an employee of the Department of Education and Training in relation to his potential invalidity retirement. On 24 October 2006 Mr Lander wrote a letter to the Chief Executive of the Department of Education and Training about his client's retirement. A copy of that correspondence is attached to this letter.

The issues raised in the letter were investigated, and a reply sent to Mr Lander.

In his letter, Mr Lander made a number of general statements about the Department of Education and Training and its staff failing to communicate, being dishonest, rude, unhelpful, obsessive and compulsive, bearing grudges against people who engage lawyers; as well as general allegations of "malpractice" and "maladministration".

Mr Lander also implied that the Department of Education and Training may engage in recriminations against his wife, who is a teacher in the Territory, an employee of the Department, and who has no involvement in the matter addressed in the letter.

In my reply of 7 December 2006 to Mr Lander, I warned him that it was my intention to refer his letter to The Law Society of the Australian Capital Territory for investigation as to whether his conduct has breached the standards expected from a legal practitioner. I have attached a copy of my letter.

Departmental staff have been offended by Mr Lander's accusations and feel that they have been unfairly targeted by his derogatory and slanderous remarks. Additionally, it is impossible for the Department to respond to any meaningful way to such serious yet non-specific accusations.

I request that you consider the matter, and investigate whether Mr Lander has behaved in a way contrary to that expected of an experienced legal practitioner.

If you require further information about this matter, please contact me.

To ensure the privacy of our employee, Mr Lander's client, I have obscured identifying references to the client.

Thank you for your assistance in this matter.

Yours sincerely

[35]

Thank you for the opportunity to respond to Mr Lander's letter to the ACT Law Society dated 8 January 2006. I will address his comments in the order in which they appear in his letter.

The ACT Department of Education and Training ("the Department") does not contend that in dealing with Mr Boutsis' matter, Mr Lander identified Mr Boutsis without his permission or that he acted without instructions.

I have read the documents that you have provided and can see nothing in those documents that could possibly demonstrate any "maladministration, cover-ups of wrong doings and ... abuses of power" of which Mr Lander accuses Departmental staff.

The Department agrees that Mr Lander has "the right and duty as a solicitor to draw on [his] experience, skill, knowledge and experience [sic] when acting for clients". It is unclear how this is proposed to be a response to the Department's concerns as set out in my letter dated 15 December 2006.

In relation to Mr Lander's comments about the Human Rights Act 2004 ("the Human Rights Act"), the Department contends that Mr Lander is incorrect in asserting that "the Human Rights Act overrides any Rule which may be in conflict with a statutorily prescribed freedom of expression". In this regard I draw your attention to paragraph 6 of the preamble to the Human Rights Act, which provides:

Few rights are absolute. Human rights may be subject only to the reasonable limits in law that can be demonstrably justified in a free and democratic society. One individual's rights may also need to be weighed against another individual's rights.

Paragraphs 115(b) and (c) of the Civil Law (Wrongs) Act 2002 provide some of the objects of Chapter 9 of that Act, entitled Defamation: namely, to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance, as well as to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter. It is clearly contemplated that the general right to freedom of expression should be balanced against an individual's right not to have his or her reputation harmed by the publication of defamatory matter.

The Department is genuinely concerned about the welfare of the staff who are the subject of Mr Lander's allegations, that their reputations may be harmed, and that they may be distressed by such serious yet unsubstantiated allegations. The Department contends that Mr Lander's right to freedom of expression is not absolute, as he contends, but must be balanced against the rights of Departmental staff to perform their work without fear of having their reputations harmed by repeated serious yet unsubstantiated accusations.

In relation to Mr Lander's repeated claim that the "ACT Department of Education systemically engages in maladministration, in cover-ups of wrong doings and in abuses of power" I repeat the concerns set out in my earlier letter to you dated 15 December 2006: The Department takes allegations such as these very seriously, but it is impossible to respond to them as they are generalised, vague and unsubstantiated.

[37]

RE: COMPLAINT BY ACT DEPARTMENT OF EDUCATION & TRAINING

I refer to your letter of 5 February and the letter attached from Mr Michael Bateman of the ACT Department of Education and Training.

Mr Bateman alleges that I have defamed the Department's staff and that their reputations may be harmed.

The Society is aware and has repeatedly told complainants (except to-date for this complainant) that defamation (matters going to the reputation of people) are not the province of Law Society complaints and that they should seek legal advice.

Mr Bateman, presumably on legal advice, has made a big issue about the reputations of people within his Department but fails to produce an Affidavit or Statutory Declaration from any such person.

As the Society must know, an organisation (government agency) does not have a character or persona and its reputation cannot be defamed.

As I explained to you on the telephone, what I have written to the Department I can write to the Canberra Times, I can say publicly on the airwaves, I can distribute to my friends and colleagues and the Law Society would express no interest in the tone or content of such correspondence and nor should it. Likewise, my client could publish in a newspaper similar complaints alleging the same things, subject to reprisal.

I note that the Department's persistent gripe is that I allegedly fail to produce evidence. The Department's files are full of evidence they refuse to address.

Let me repeat one singular example of that evidence here because the Department does not tell the Society the truth.

The Minister, Mr Andrew Barr, when confronted with a dossier of material recently in the Xirakis case, explained away all the allegations about school-based discipline and the corruption and cover-ups that go under that process as being justified because that is 'the procedure'. In short, Mr Barr and his Department are not interested in examining complaints of the nature made. To then assert that I provide no evidence when the Department and its Minister hold such material is, with respect, hypocritical.

I remind the Society that both the President of the Appeal Court of our Supreme Court and the Chief Judge have repeatedly urged solicitors when entering the profession to remember to act upon the most solemn duty of all lawyers. That solemn duty as I have brought to the Society's attention before and do so again is to represent people against abuses of power by the State.

The complaint is vexatious, designed to silence a critic and should be dismissed.

[65]

The rules which govern the conduct of members of a body of professional men, such as the Bar of New South Wales, may (though there is, of course, no logical dichotomy) be divided roughly into two classes. In the one class stand those rules which are mainly conventional in character. To say this is not to deny their importance from the point of view of the client. But they are designed primarily to regulate the conduct of members of the profession in their relations with one another. Many of these rules are reduced to writing, and they are from time to time interpreted, and perhaps modified to fit specific cases, by resolutions of the governing body of the profession. Examples of this class in the case of the Bar are the rule which forbids advertising, the rules with regard to retainers, the rule that one of Her Majesty's counsel must not appear without a junior. A breach of any of these rules is treated seriously, but would not warrant disbarment--at least unless it were shown to be part of a deliberate and persistent system of conduct.

Rules of the other class are not merely conventional in character. They are fundamental. They are, for the most part, not to be found in writing. It is not necessary that they should be reduced to writing, because they rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness. To the Bar in general it is more a matter of "does not" than of "must not". A barrister does not lie to a judge who relies on him for information. He does not deliberately misrepresent the law to an inferior court or to a lay tribunal: cf. Carr v. Wodonga Shire [1924] HCA 15; (1920) 34 CLR 234, at pp 239, 240. He does not, in cross-examination to credit, ask a witness if he has not been guilty of some evil conduct unless he has reliable information to warrant the suggestion which the question conveys.

As the learned judges of the Supreme Court have said, a member of the Bar enjoys great privileges both de jure and de facto_. In particular his privilege in relation to defamatory statements made by him in court is not qualified but absolute. It is perhaps worth while to quote yet again the oft-quoted words of Lopes LJ in_ Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1892) 1 QB 431. His Lordship said: "This 'absolute privilege' has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that Courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them" (1892) 1 QB, at 451. The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has, and definitely intends to adduce, evidence to support them. It cannot, of course, be enough that he thinks that he may be able to establish his statements out of the mouth of a witness for the other side.

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