Legal Services Commissioner v Brereton

I do not in any event consider that there would be a real danger of injustice if the LSC disciplinary charges proceed to a hearing. Mr Brereton is not compelled to give evidence (or even to participate) in the Tribunal proceeding, and the proceeding does not directly impinge on his right to silence. This has been held relevant in cases such as Goldair, Hammond and Bannister (all referred to earlier, and referenced in the applicant's submission), and in Edelston v Richmond[10]. A right to silence is relevant, but again there is no principle that that it should automatically result in a stay of a criminal proceeding unless there is a compulsion to give self-incriminating evidence in respect of the same matters such that a contempt of court may be committed. As I have indicated, any answer to a question or document produced in the Tribunal proceeding is not admissible in any subsequent criminal proceeding.
Moreover, I do not accept the respondent's argument, that the provision of evidence or documents in the Tribunal proceeding "will at least lead to an increased risk of a criminal prosecution in respect of similar matters" and that this is a sufficient ground for an adjournment.
Mr Abbott contended by way of reply that there was a view that the privilege against self-incrimination in cases such as Reid overrode the factors in McMahon and that thee is a conflict between the two lines of authority. He cited Guglielman v Trscowthick (No 3)[11] for this proposition. From the a brief review of Guglielman and the other cases referred to above, I do not think this necessarily follows an 'absolute'. It is simply a matter that some weight should be attached to the privilege against self-incrimination in weighing up the factors relevant to the exercise of discretion to grant a stay or adjournment. In this case, as I have indicated, there is no compulsion for Mr Brereton to give evidence or produce documents in the Tribunal proceeding.
Mr Abbott also relied upon ASIC v HLP Financial Planning (Aust) Pty Ltd[12] for the proposition that a civil court should not interfere with a matter likely to be the subject of criminal charges. From my brief review, I do not consider that case directly relevant here. The civil proceeding in that case was concerned with the making of an actual declaration of criminal conduct and whether the applicant should be charged with criminal offences, and there was some overlap in the jurisdiction. Here, there is not the same inter-relationship.
The respondent also relies upon a 'penalty privilege' that prevents a plaintiff/applicant from obtaining information from a defendant that will assist in establishing the defendant's liability to a penalty. As I understand it, this is a privilege against self-exposure to a penalty in the same proceeding by being compelled to disclose information or produce documents in that proceeding. This would suggest that the privilege, if applicable, arises independently of any criminal charges. Moreover, as indicated, Mr Brereton is not compelled to give evidence at the Tribunal hearing if he chooses not to do so.
The penalty privilege also bears at least some similarity to the privilege against self-incrimination. Indeed, the respondent essentially relies upon similar factors as those relevant to his argument on the privilege against self-incrimination - eg. the risk of admissions that may abrogate the privilege against self-incrimination. For similar reason to those outlined above, I do not believe that there is any real danger of injustice in the circumstance of this case in relation to any future criminal proceeding arising from such any such privilege.
I re-iterate that the LSC's application to the Tribunal in relation to these disciplinary charges was made in June last year. The proceeding has been case managed through four prior directions hearings, including by Judge Ross VP on 14 March 2008 where directions were made for the filing of witness statements and for a 20 day hearing commencing this month. The Legal Services Commissioner and is ready to proceed, has its witness ready, and the Tribunal has made time available to hear the matter and arranged a three member panel. The respondent did not materially oppose or challenge these earlier directions, and did not (insofar as I am aware) raise any concerns then about privilege or the consequences of possible pending criminal charges. This issue was first raised only last week, after the LSC had filed all of its witness statements (which the respondent has now had for some weeks), and after the respondent's deadline for providing its witness statements under Judge Ross' order had well passed. Most of the material relied upon to support the present application for adjournment arose in 2006 (eg the ACC Examination in March 2006 and media identifying Mr Brereton around that time), and there is no evidence of any material change of circumstance that has arisen since that time.
In the present case, I think it is important that no criminal charges have been laid against Mr Brereton. In reality, there are no criminal charges actually "pending", so it is arguable that the respondent doesn't even get to first base on some of the authorities referred to above.
I do not accept the respondent's contention that the fact that no charges have yet been laid to be 'beside the point'. In the absence of such criminal charges, I am effectively being asked to adjourn serious disciplinary charges indefinitely on a hypothetical (albeit, in the respondents view, likely) scenario that criminal charges may be laid and will cover the same subject matter as some of the disciplinary charges, and will proceed to a hearing within a reasonable timeframe. I agree with the applicant that the consequences of adjourning the Tribunal hearing could thus result in considerable delay in hearing. I consider this undesirable and contrary to the public interest and the interests of justice. The respondent has not satisfied me that it is just and convenient to adjourn the proceeding on the basis of any real interference with his rights. An increased risk of prosecution is not, in itself, sufficient. A balancing of justice between the parties suggests to me that it is desirable that the disciplinary charges be heard and determined (whatever the outcome) with reasonable expedition.
It is also not readily apparent to me that criminal charges, if laid, will in fact cover the same subject matter as the LSC disciplinary charges. Again, this argument is based upon a hypothetical proposition. I also accept the applicant's argument that the LSC disciplinary charges are simply confined to the respondent's dealing with certain trust account moneys and keeping of trust account records. They are not concerned with the motivation for, or consequences of, those transactions that may be more relevant to a criminal charge if laid. This is further borne out by the ACC letter this morning.
It follows from all of the above that I do not consider that there will be a real risk, as opposed to a remote possibility or notional danger, that the administration of justice in relation to a possible criminal proceeding against Mr Brereton will be prejudiced or interfered with by the LSC disciplinary charges being heard and determined by the Tribunal. It follows that, in the exercise of my discretion, the application for a stay or adjournment is refused.
Mr Abbott had argued, in the alternative, that I should grant an adjournment for two weeks to allow his client to pursue the production of documents or release of ACC material in other forums, as a basis for further support for a longer term stay of the Tribunal proceeding. Given the ACC letter this morning, the ACC's position seems to me reasonably clear. It is a matter for the respondent if he wishes to seek to challenge the ACC position elsewhere. I do not consider it a further basis for adjournment.

I turn now to the consequential directions.
It was foreshadowed that a refusal of the adjournment might be 'tested' before a court. That is a matter for the respondent. Unless or until restrained by a court, the matter remains scheduled for hearing before this Tribunal, and it is appropriate that further directions therefore be made for that hearing.
The further directions I propose are largely as discussed at the Directions Hearing last week. Both parties had indicated then that the matter now requires a hearing of no more than 12 days (rather than the 20 previously scheduled), and Mr Thomas for the respondent had indicated that, if the application for adjournment was unsuccessful, his client would file and serve its witness statements by 12 noon the following day. I have allowed a further day, until Friday. The further directions also deal with written submissions and transcript, generally along the lines canvassed at the earlier Directions Hearing.
The applicant should not be unduly prejudiced by any late filing of material by the respondent, but equally the respondent should not benefit from its own non-compliance by having a lengthy adjournment on such basis. Some degree of flexibility and the balance of competing interests is required if the hearing is to proceed. I propose to defer the commencement of the hearing by one day, until Tuesday 8 July 2008, to give the applicant time to consider the respondent's witness statements (if any), and for both parties to prepare generally for the hearing. Given the amended time estimates by the parties (i.e. for a shorter overall hearing), this will not extend the end date of the scheduled hearing. I have already mentioned the Tribunal will not be sitting on 10 or 16 July, or the morning of 17 July 2008.
As requested by the applicant, I have reserved the costs of the Legal Services Commissioner in relation to the adjournment application and today's hearing.

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Cases Cited (7)

Legal Services Commissioner v Brereton (Legal Practice) [2008] VCAT 1341 (7 July 2008)