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[2009] VSC 210
Supreme Court of Victoria
2009-05-29
BEACH J
Original judgment source is linked above.
ADMINISTRATIVE LAW - Alleged bias - Ostensible bias - Waiver - Doctrine of necessity - Alleged inadequacy of reasons - Administrative Law Act 1978, s 8.
1 Stephen Peter Byrne, the plaintiff, is a barrister and solicitor of the Supreme Court of Victoria who carries on practice as a sole practitioner in South Yarra. On 14 July 2008, the Legal Services Commissioner, the defendant, wrote to the plaintiff in the following terms:
"Dear Mr Byrne,
COMPLAINT BY MR PETER SMIRNIOS
Pursuant to section 4.2.8 of the Legal Profession Act 2004 ('the Act') I am writing to notify you that I have received a complaint against you from Mr Peter Smirnios. Details of the nature of the complaint are that the complainant alleges that:
I enclose a copy of the complaint for your information.
This matter has been allocated case number LSC/06/3097. Would you please quote this reference number in any future contact with this office.
POSSIBLE DISCIPLINARY COMPLAINT
The matters alleged by the complainant appear to raise a disciplinary complaint within the meaning of section 4.2.3 of the Act.
Before I decide whether to treat the complaint as a disciplinary complaint pursuant to section 4.2.3, and whether I should then deal with the complaint pursuant to Part 4.4 of the Act, or summarily dismiss it pursuant to section 4.2.10 of the Act, you are invited to make preliminary submissions to me as to whether I should treat the complaint as a disciplinary complaint, and whether it should be investigated or summarily dismissed.
Such submissions must be made within one week of service of this notice. Please note that any submissions that you make may be provided to the complainant.
Your submissions should be limited to the above question. You will be given the opportunity at a later stage to provide me with your full written explanation of the subject matter of the complaint pursuant to section 4.4.11 of the Act should I investigate the complaint.
If I do not hear from you within this time, I will proceed to determine whether the complaint should be investigated or summarily dismissed on the basis of what I have before me.
Should you have any queries please telephone Ms Margaret McNamara on 1300 796 344.
Yours sincerely,
VICTORIA MARLES
Legal Services Commissioner."
The defendant's letter enclosed a copy of the complaint - a letter from Wisewoulds addressed to "Professional Standards Law Institute of Victoria" dated 27 June 2006 ("the letter of complaint").
2 On 25 July 2008, the plaintiff sent a detailed letter of response to the defendant. The letter provided in part:
"I refer to previous correspondence and in particular your letter of 14 July 2008 enclosing a copy of a complaint by Mr Peter Smirnios ('the complaint').
In response to your invitation to make submissions in relation thereto I submit as follows:
General Observations
Following these "general observations", the letter went on to deal with matters under the headings "Factual Issues", "Nature of the Complaint", "Response to the Complaint" and "The Formal Complaint". The response letter was 12 pages in length. The reference in it to what had previously been said by the defendant's counsel "before the Court" is a reference to a previous proceeding between the plaintiff and the defendant (number 8038 of 2008) which culminated in the Court of Appeal's decision of 16 May 2008 (Byrne v Marles & Anor [2008] VSCA 78).
3 On 6 August 2008, the defendant sent a letter containing the decisions the subject of this proceeding. The letter provide in part:
"Dear Mr Byrne
COMPLAINT BY PETER SMIRNIOS
I refer to my letter dated 14 July 2008 setting out the details of the nature of the above complaint.
Thank you for your letter dated 25 July 2008 in response to my invitation in that letter.
Following consideration of the complaint and your submissions I have now decided that I can deal with the complaint as a disciplinary complaint for the following brief reasons:
Implicit in the defendant's letter of 6 August 2008 was a rejection of the plaintiff's assertion that it would be appropriate for some other person to consider the question of whether the complaint was a disciplinary complaint and whether the complaint should be summarily dismissed pursuant to s 4.2.10 of the Legal Profession Act 2004. The defendant's letter of 6 August 2008 went on:
"I note you seek to have an impartial and fresh mind consider your matter. Pursuant to section 4.4.9 of the Act I have referred the disciplinary complaint raised by this matter to the Law Institute of Victoria, being a prescribed investigatory body for the purposes of the Act. That body is required to investigate the complaint and report to me on its progress. At the completion of the investigation I will make a determination in respect of the disciplinary complaint in accordance with the Act."
4 On 1 September 2008, the plaintiff obtained an order nisi pursuant to the provisions of the Administrative Law Act 1978, from Vickery J, requiring the defendant to show cause why her decision should not be reviewed on the grounds that she:
"a) failed to have regard or any proper regard to the meaning of s 4.2.8 of the Legal Profession Act 2004,
(i) involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, or
(ii) could justify a finding that the plaintiff is not a fit and proper person to engage in legal practice.
(i) she failed to identify and/or give particulars of the aspects Wisewoulds' letter said to give rise to or constitute unsatisfactory professional conduct or professional misconduct under the Legal Profession Act 2004;
(ii) failed to identify the elements of the conduct complained of that constituted unsatisfactory professional conduct or professional misconduct under the Legal Profession Act 2004;
(iii) she failed to recuse herself from making the decision as to whether or not the complaint made in Wisewoulds' letter should be dismissed when she had previously decided and had submitted to this Honourable Court in proceeding No 7520 of 2006 that the complaint constituted a 'disciplinary complaint' within the meaning of the Legal Profession Act 2004,
(i) she had previously decided and submitted to this Honourable Court in proceeding No 7520 of 2006 between the applicant and the respondent that the same conduct complained of by Mr Smirnios constituted 'disciplinary matters';
(ii) she failed to give any or adequate reasons for her decision and in particular she gave failed to analyse or identify the relevant aspects of the complaint constituting a disciplinary complaint evidencing her failure to give proper and/or impartial consideration to the matters before her;
(iii) she had prejudged the issues she was required to determine.
5 This is the return of the order nisi. For the reasons given below, the order nisi will be discharged.
6 In Byrne v Marles & Anor,[2] Kaye J described the operation of the relevant provisions of the Legal Profession Act as follows:
"6. The Legal Profession Act 2004 introduced a new regime for the regulation of the Victorian legal profession. It replaced the previous system which had been established by the Legal Practice Act 1996. Part 4 of the 2004 Act deals with complaints about, and discipline of, members of the legal profession. Section 4.2.1(2) provides that a complaint may involve 'a civil complaint, a disciplinary complaint or both.' Section 4.2.2 defines a 'civil complaint' as a complaint about conduct to the extent that it involves a 'civil dispute'. Section 4.2.2(2) defines a 'civil dispute' to include (inter alia) a 'costs dispute' (as therein defined), and any other genuine dispute between a person and an Australian legal practitioner (or a law practice) arising out of or in relation to the provision of legal services to the person by the practitioner (or law practice). Section 4.2.3(1) defines a 'disciplinary complaint' as a complaint about conduct which, if established, would amount to 'unsatisfactory professional conduct' or 'professional misconduct'.
7. Section 4.2.4 provides that a person may make a civil complaint if that person has a civil dispute with the relevant legal practice or practitioner. Section 4.2.4(2) provides that 'any person' may make a disciplinary complaint about the conduct of an Australian legal practitioner. Section 4.2.5 is headed 'To whom is a complaint made?' It provides:
'A complaint is to be made to the Commissioner.'
8. Section 4.2.6 prescribes the form and content of the complaint. Section 4.2.6(2)(d) provides that a complaint must include "details of the conduct complained about."
9. Section 4.2.8 provides that the Commissioner must give a law practice or a legal practitioner written notice of a complaint as soon as practicable after the complaint is made. The notice must include the name of the complaint and details of the nature of the complaint. Section 4.2.11 provides that a complaint is to be dealt with in accordance with Part 4.3, to the extent that it is a civil complaint, and, to the extent that it is a disciplinary complaint, in accordance with Part 4.4.
10. Part 4.3 contains a number of provisions as to how civil complaints are to be dealt with. Part 4.4 contains provisions for dealing with disciplinary complaints and discipline. Section 4.4.2 defines 'unsatisfactory professional conduct' as follows:
'"Unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.'
11. Section 4.4.3 defines 'professional misconduct' as follows:
'"Professional misconduct" includes -
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.'
12. Section 4.4.7(1) provides that the Commissioner is required to investigate each disciplinary complaint. Under s.4.4.9 the Commissioner may refer a disciplinary complaint to a 'prescribed investigatory body' for investigation under Division 3 of Part 4. The Law Institute is a 'prescribed investigatory body' for those purposes. Section 4.4.10 provides that if a disciplinary complaint is referred to a prescribed investigatory body, that body must investigate the complaint and report to the Commissioner about the complaint. The report must include a recommendation as to what action, if any, the Commissioner should take. Section 4.4.13(1) provides that after an investigation has been completed the Commissioner must deal with the matter in accordance with s.4.4.13. Sub-section (2) provides that if the Commissioner is satisfied there is a reasonable likelihood that the Victorian Civil and Administrative Tribunal ('the Tribunal') would find the practitioner guilty of professional misconduct, the Commissioner must apply to the Tribunal for an order under Division 4 in respect of the practitioner. Sub-section (3) prescribes the action the Commissioner may take if satisfied there is a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct. In such a case the Commissioner may apply to the Tribunal for an order under Division 4; she may with the consent of the practitioner reprimand or caution the practitioner; or she may take no further action against the practitioner if the Commissioner is satisfied that the practitioner is generally competent and diligent, and there has been no other substantiated complaint about the conduct of the practitioner within the last five years."
7 In the appeal from the decision of Kaye J, the Court of Appeal determined that the plaintiff had a right to be heard by the defendant before she determined to treat the complaint as a disciplinary complaint and refer it to the Law Institute for investigation.[3] For the sake of completeness, I should note that subsequent to the Court of Appeal's decision, ss 4.2.8 and 4.2.10 were amended as from 12 December 2008[4] by the insertion of sub-s (3) into each section. The new s 4.2.8(3) provides:
"Nothing in this section requires the Commissioner to give the law practice or an Australian legal practitioner an opportunity to be heard or make a submission to the Commissioner before the Commissioner determines how the complaint is to be dealt with."
"The Commissioner is not required to give a complainant, a law practice or an Australian legal practitioner an opportunity to be heard or make a submission to the Commissioner before determining whether or not to dismiss a complaint under this section."
It was common ground between the parties that neither of these new sub-sections have application in this case.[5]
8 In the orders made by Vickery J on 1 September 2008, the defendant's decision is described as a decision made on 6 August 2008:
"(a) deciding the complaint of Peter Smirnios made on 27 June 2006 was not a civil dispute; and
(b) deciding the complaint of Peter Smirnios made on 27 June 2006 was a disciplinary complaint; and
(c) there was no reason to summarily dismiss the complaint under s 4.2.10 of the Legal Profession Act; and
(d) the Law Institute of Victoria was directed to investigate the complaint."
9 However, as the affidavit evidence[6] and submissions disclose, the plaintiff's real complaint in this case is directed at (b) and (c) above - namely, the decision that the complaint was a "disciplinary complaint" and the decision that the complaint would not be summarily dismissed under s 4.2.10.
10 The essence of the plaintiff's case is set out in paragraph 8 of the plaintiff's outline of submissions.[7] Paragraph 8 provides that "in essence" the plaintiff contends:
(a) The defendant was at all relevant times bound by the rules of natural justice.
(b) The defendant failed to provide adequate reasons for her decision, which failure is alleged to constitute an error of law.
(c) Having regard to previous views expressed by the defendant in the previous proceedings between the parties (before Kaye J and before the Court of Appeal) and the contents of her letter of 14 July 2008,[8] the defendant was biased, or there was a reasonable apprehension of bias against the plaintiff, when she made the decision and "wrongfully refused to recuse herself".
11 There can be no doubt that the defendant was, at the time she made the decision the subject of this proceeding, subject to the rules of natural justice in the sense explained by the Court of Appeal. That is, before making the decision referred to in her letter of 6 August 2008, the appellant had a right to be heard on the question of whether there was reason to believe that the complaint was a disciplinary complaint and on whether the complaint should be dismissed pursuant to s 4.2.10.[9] The real issues in this case concern the plaintiff's complaints relating to the adequacy of the defendant's reasons and the issue of ostensible bias.[10]
12 The defendant's reasons are those of a tribunal, not that of a judicial body. They must be viewed from that perspective. As was said by Buchanan JA (with whom Phillips and Chernov JJ agreed) in Perkins v County Court of Victoria:[11]
"The degree of detailed reasoning required of a tribunal depends upon the nature of the determination, the complexity of the issues and whether the issues are ones of fact or of law or of mixed fact and law, and the function to be served by the giving of reasons."
There can be no doubt that the defendant's reasons are to be read in context, taking into account the background of the case, the material provided and the issues which have to be determined. Similarly, her reasons are meant to inform, and over-zealous judicial review is to be eschewed. Additionally, it cannot be doubted that the defendant's reasons do not need to advert in detail to those matters she has taken into account: the reasons should give sufficient explanation so as to enable a review thereof by this Court either under the Administrative Law Act or otherwise by judicial review.[12]
13 So far as the plaintiff's complaints about the adequacy of the defendant's reasons in her letter of 6 August 2008 are concerned, the plaintiff makes complaint about the reasons for deciding the complaint of Mr Smirnios was a disciplinary complaint and further complaint about the adequacy of the defendant's reasons for not summarily dismissing Mr Smirnios' complaint under s 4.2.10. I will look first at the reasons of the defendant for treating the complaint as a "disciplinary complaint". The reasons of the defendant for treating the complaint made against the plaintiff as a "disciplinary complaint" are set out in the paragraph numbered 1 in the defendant's letter dated 6 August 2008, namely:
"Whilst I note you submit that the matter is a civil dispute, not a disciplinary complaint, I cannot accept this submission. The complaint is a disciplinary complaint as defined in section 4.2.3. of the Legal Profession Act 2004 ('the Act') because it is a complaint about conduct which, if established, would amount to unsatisfactory professional conduct or professional misconduct. A civil dispute is defined in section 4.2.2 of the Act. The complainant did not raise a dispute about your costs with me."
However, the defendant, in stating the above as her "brief reasons", gave these reasons after referring to "the details of the nature of the ... complaint", which were set out in her letter of 14 July 2008.[13] In her letter of 14 July 2008, the defendant enclosed the letter of complaint and noted that the complainant alleged:
"1. Failing to provide a copy of a fee agreement between yourself [the plaintiff] and Mr Smirnios despite verbal and written requests to do so.
14 The heart of the defendant's reasons for not accepting the plaintiff's submission that the complaint was not a "disciplinary complaint" is to be found in the second sentence of the paragraph numbered 1, namely:
"The complaint is a disciplinary complaint as defined in s 4.2.3 of the Legal Profession Act 2004 ... because it is a complaint about conduct which, if established, would amount to unsatisfactory professional conduct or professional misconduct."
15 As was noted by Nettle JA in the Court of Appeal proceeding,[14] the scheme of Part 4 of the Legal Profession Act is to require the Commissioner to undertake the task of assessing whether a complaint is a disciplinary complaint at the outset, "virtually as soon as a complaint is received". The defendant's task is a filtering one requiring the complaint to be dealt with as follows:
16 The scheme of Chapter 4 of the Legal Profession Act (and more particularly, Part 4.2) is one which is neither elaborate nor intended to be elaborate. The Commissioner receives complaints. She is then required to make an assessment as to whether the complaint is a "civil complaint", a "disciplinary complaint" or involves both a civil complaint and a disciplinary complaint. Her task is not to make any finding with lasting consequences for a legal practitioner - but merely to stream the complaint in accordance with Part 4.2 (noting that she also has the power to summarily dismiss in an appropriate case). The consequence of the Commissioner's decision that the complaint is a disciplinary complaint is merely that the complaint then falls to be dealt with under Part 4.4. Under Part 4.4, the complaint is then investigated before a determination is made to whether the matter should proceed to the Victorian Civil and Administrative Tribunal, where it will be heard and determined.[17] As Nettle JA said,[18] the explanatory memorandum of the Legal Profession Act and the Second Reading Speech "are replete with encomia as to the simplicity and expedition which [these provisions] were predicted to achieve".[19]
"In those circumstances, Parliament surely cannot have expected much more by way of the initial assessment of a complaint than an educated prediction as to whether the conduct the subject of complaint, if proved, may amount to unprofessional conduct or misconduct. In substance, that is tantamount to the 1996 Act test of being satisfied that a complaint raises a matter that may amount to misconduct or unsatisfactory professional conduct."
18 When one looks at the nature of the determination required of the defendant, the complexity of the issues and whether the issues are ones of fact or of law or mixed law and fact, and the function to be served by the giving of reasons,[20] in my view it was reasonable for the Commissioner to give as a reason that the complaint is a disciplinary complaint "because it is a complaint about conduct which, if established, would amount to unsatisfactory professional conduct or professional misconduct". It was not necessary to say more. Such a reason enables the Court to review (either under the Administrative Law Act or otherwise by judicial review) the decision of the defendant. Specifically, the obligation to provide reasons in the circumstances of this case did not require each of the matters referred to in the order nisi made on 1 September 2008 to be explicitly addressed. Undoubtedly, the position would be different if the defendant were making findings after an investigation and upon which orders of the kind referred to in ss 4.4.17, 4.4.18 or 4.4.19 might be made. However, that is not this case.
19 In the context of the plaintiff's complaints in this case, what was required of the defendant was that she receive Mr Smirnios' complaint and that she consider whether it was (or involved) a disciplinary complaint. This step involved a determination by the defendant as to whether the conduct the subject of the complaint, if proved, may amount to unprofessional conduct or misconduct within the meaning of the Legal Profession Act. By its very nature, such a decision is not one which involves a reasoning process requiring much elaboration. In this case, the defendant's path of reasoning is disclosed in the first sentence and in the paragraph numbered 1 of her letter of 6 August 2008. In the first sentence of her letter of 6 August, the defendant refers to the allegations that arise from the letter (failing to provide a copy of the fee agreement, failing to release the file and acting in an unprofessional and obstructive manner). The defendant then states that the complaint (in the way she has construed it) is one "about conduct which, if established, would amount to unsatisfactory professional conduct or professional misconduct". For the reasons given above, nothing more was required. Further, there is nothing in the material (and specifically the defendant's letter of 6 August) that shows that the defendant failed to have regard (or "proper regard" or "any proper regard") to the matters referred to in sub-paragraphs (a) to (f) of the order nisi when she decided that the complaint of Mr Smirnios was a disciplinary complaint.[21] Similarly, there is nothing in the material to suggest that the defendant failed to consider the matters referred to in sub-paragraphs (g) and (h) of the order nisi.
20 During the course of argument, complaint was made by the plaintiff about the defendant's reference to the matter not being a civil dispute because the complaint (Mr Smirnios) "did not raise a dispute about [the plaintiff's] costs with [the plaintiff]".[22] It was said that the defendant's letter of 6 August 2008 discloses that the defendant, in considering the plaintiff's arguments, only considered part of the definition of the expression "civil dispute". The expression "civil dispute" is defined in s 4.2.2(2) as follows:
"(2) A civil dispute is any of the following-
(a) a dispute (costs dispute) in relation to legal costs not exceeding $25000 in respect of any one matter-
(i) between a law practice or an Australian legal practitioner and a person who is charged with those costs or is liable to pay those costs (other than under a court or tribunal order for costs); or
(ii) between a law practice or an Australian legal practitioner and a beneficiary under a will or trust in relation to which the law practice or practitioner has provided legal services in respect of which those costs are charged;
(b) a claim that a person has suffered pecuniary losses as a result of an act or omission by a law practice or an Australian legal practitioner in the provision of legal services to the person, other than loss in respect of which a claim lies against the Fidelity Fund;
(c) any other genuine dispute between a person and a law practice or an Australian legal practitioner arising out of, or in relation to, the provision of legal services to the person by the law practice or practitioner."
21 The plaintiff's complaint is that, in providing her reasons, the defendant appears to have overlooked paragraphs (b) and (c) of the definition of "civil dispute" in s 4.2.2. While it is true that the defendant has not referred to the matters set out in ss 4.2.2(2)(b) and (c), a fair reading of the correspondence passing between the parties discloses that this omission is not the product of any failure by the defendant to consider the full ambit of the definition of "costs dispute". Rather, the defendant's letter of 6 August 2008 is merely responsive to the plaintiff's letter of 25 July 2008 - in that it was the plaintiff who placed emphasis on the issue of legal costs. In order to demonstrate this proposition, it is necessary to set out some further parts of the plaintiff's letter of 25 July 2008. Having set out the general observations referred to in paragraph 2 above, the plaintiff provided a chronology. Following the chronology, the plaintiff described the nature of Mr Smirnios' complaint as follows:
"Nature of the Complaint
7. The complaint is a civil dispute. It is not a disciplinary complaint.
8. If you were to subtract his misconceived demands for a copy of the fee agreement I had given the complainant, Mr Marsh makes no other real complaint. His complaints about the correspondence I exchanged with him are all predicated on my refusal to give him a copy of the fee agreement to which he's not entitled and for which he provides no basis of an entitlement.
9. The matter arises out of the wish by Mr Marsh to obtain my file relating to the complainant. I claimed a lien over the file at common law and under the Professional Conduct and Practice Rules for unpaid fees. Mr Marsh sought a copy of my fee agreement which set out the fee arrangement with the complainant. The fee agreement was not discussed in my conversation with him on 7 June 2006 and it was first mentioned to me in his letter to me of 13 June where he identifies it from a copy I had sent the complainant under cover of a letter sent on 6 April 2006. Mr Marsh has never asserted that his client maintains that I was engaged on any basis other than fees would be calculated on a scale cost basis. I provided him with my bill of costs which is clearly calculated on a scale costs basis. The complainant has sought a taxation of my bill of costs. Mr Marsh threatened to make an unspecified complaint to the Law Institute. He made no such complaint until the day after he received a bill of costs despite a number of requests by me for details of the complaint made or to be made by him. There have been three offers to settle the issue of costs. One made before the complaint was made and two after the complaint was made. The first and third offers were predicated upon the basis that if the complainant's costs issues could be resolved on my accepting a reduced amount, the complaint would not be made or would be withdrawn.
10. The making of the complaint was a device to pressure me into giving up the file without costs or giving up the file without payment in full of the costs claimed."
22 Following this description of the nature of the complaint, the plaintiff then made a further 39 paragraphs of submissions before stating:
"50. If there is any basis for complaint, which I deny, it is one in respect of a matter between myself and the complainant in relation to legal costs; although the basis for any such costs complaint has not so far been articulated by Mr Marsh.
51. It is a civil dispute to be dealt with as such under the LPA. Even then, I say that having regard to the fact that the costs charged by me were scale costs, it is hardly a matter which should be the subject of a formal complaint to the Legal Services Commissioner.
In conclusion I request that you summarily dismiss the complaint or alternatively deal with the matter as if it were a civil dispute." (Emphasis mine).
23 The first sentence and the last two sentences of the paragraph numbered 1 in the letter of 6 August 2008 were, strictly speaking, unnecessary in terms of the defendant's reasons as to why she determined Mr Smirnios' complaint was a disciplinary complaint. They were responsive to the plaintiff's submission that the complaint was a civil complaint and one "in respect of a matter between [the plaintiff] and the complainant in relation to legal costs" as asserted in paragraph 50 of the plaintiff's letter of 25 July 2008. Further, they were responsive to a false issue set up by the plaintiff. The plaintiff's argument presupposes that a complaint is either a civil complaint or a disciplinary complaint. The plaintiff's submissions were directed at persuading the defendant that Mr Smirnios' complaint was a civil complaint and therefore, in effect, could not be a disciplinary complaint. However, s 4.2.11 exposes the fallacy in this argument. As is plain from s 4.2.11, a complaint can be both (and/or involve) a civil complaint and a disciplinary complaint.
24 If there was any substance in the plaintiff's assertion that the defendant failed to have proper regard to the meaning of the expression "civil dispute" (because she failed to consider paragraphs (b) and (c) of s 4.2.2(2)), then any such failure was either of no operative effect in this case - or inured to the benefit of the plaintiff (in that the defendant did not take steps to have the matter dealt with under Part 4.3 as well as Part 4.4). It follows that even if it could be said that the defendant failed to have proper regard to the meaning of the expression "civil dispute",[23] any such failure was irrelevant to the ultimate outcome. The reasoning process was that Mr Smirnios' complaint was a disciplinary complaint because it was a complaint about conduct which, if established, would amount to at least unsatisfactory professional conduct. The reasoning process was not that the complaint was a disciplinary complaint because it was not a civil dispute. The references to a "civil dispute" and to a "dispute about your costs" were merely responsive to the false issue set up by the plaintiff in his letter of 25 July 2008.
25 In relation to the allegations that the defendant failed to consider and identify relevant conduct in the letter of complaint (paragraphs (g) and (h) of the order nisi), consistently with what I have said above, there was no requirement for the defendant to identify the conduct of the plaintiff with greater precision than it was identified in the letter of complaint (which was included with the defendant's letter of 14 July 2008) and the characterisation of it in the three numbered paragraphs in the 14 July letter. Further, the characterisation of Mr Smirnios' complaint in those three numbered paragraphs disposes of the suggestion that the defendant failed to consider the conduct complained of which might amount to unsatisfactory professional conduct or professional misconduct.
26 I turn now to consider the complaint about the adequacy of the defendant's reasons in relation to her decision not to summarily dismiss Mr Smirnios' complaint under s 4.2.10. Having referred to the details of the nature of the complaint (see the first sentence of the defendant's letter dated 6 August 2008 and the three numbered allegations in the defendant's letter of 14 July - namely, failing to provide a copy of the fee agreement, failing to release a copy of the file and acting in an unprofessional and obstructive manner) the substance of the defendant's reasons for failing to summarily dismiss Mr Smirnios' complaint were set out in the paragraph numbered 2 in the defendant's letter of 6 August 2008, namely:
"I have determined that there is no reason for me to exercise my discretion to summarily dismiss the complaint pursuant to section 4.2.10 of the Act. The matters you raise in your submissions set out the history of the matter and raise contentions about the subject matter of the complaint however they do not provide persuasive argument to bring the matter within any of the grounds under section 4.2.10."
27 In essence, the defendant decided not to exercise her discretion to summarily dismiss Mr Smirnios' complaint because all that Mr Byrne had done was simply show that there were contested issues between the parties. The defendant had already determined that Mr Smirnios' complaint was a complaint about conduct which, if established, would amount to at least unsatisfactory professional conduct. The plaintiff's letter of 25 July 2008 disclosed contested issues between the parties. In the terms of what was required of the defendant by the Legal Profession Act, it was appropriate for the defendant to give as a reason no more than that the matters raised by the plaintiff were contentions which did not provide persuasive argument bringing the matter within any of the grounds under s 4.2.10. As with the defendant's decision to treat Mr Smirnios' complaint as a disciplinary complaint, the reasons for this decision did not require any greater elaboration. Further, there is nothing in the material (or more specifically the defendant's letter of 6 August 2008) which establishes that the defendant failed to have "regard" or "any proper regard" to the meaning of s 4.2.10 or paragraphs (b) and (f) thereof.[24]
28 During the course of argument it was put that the Commissioner was required to give better reasons for making the decisions she made because not only should the legal practitioner be informed, "but it is also a case where this process of reasoning assists in properly instructing the Law Institute as to what they should be doing".[25] It was submitted that it was not appropriate for the Commissioner "just to simply hand to the Institute a bundle of documents and say: 'This possibly raises a disciplinary complaint, investigate it'". The reason for this was said to be twofold,[26] namely:
"One is that it's really abrogating the responsibility, initial responsibility of the Commissioner to someone else. But importantly, it guides the Institute in determining what they should be looking for, and it assists the practitioner to know what in fact the Institute is entitled to look for."
29 I reject these submissions. As I have said above, the scheme of the Act involves an initial assessment by the Commissioner resulting in a classification of the complaint (with the possibility of summary dismissal). Upon it being determined that the complaint is or involves a disciplinary complaint, the procedures in Part 4.4 are invoked. These involve a full and proper investigation of the complaint, with the possibility that the result of such an investigation will lead to proceedings at the tribunal. Any need to give directions about the way in which to conduct the investigation is dealt with explicitly in s 4.4.9(2)(b) and s 4.4.9(4).
30 It follows from what I have said above that the plaintiff's complaints concerning the adequacy of the defendant's reasons and the complaints made in paragraphs (a) to (h), (i)(i) and (ii) and (k) of the order nisi are not made out.[27] I turn now to consider the plaintiff's other complaint, bias.
31 From paragraphs (i)(iii) and (j) of the order nisi, it might be thought that one of the plaintiff's complaints in relation to bias is that the defendant was biased (or more specifically, there was a reasonable apprehension of bias[28]) because she had previously decided (and submitted before Kaye J and the Court of Appeal in the previous proceedings between the parties) that the complaint constituted a disciplinary complaint within the meaning of the Legal Profession Act. In anticipation of this being the plaintiff's case, the defendant made written submissions concerning the issue of waiver as follows:
"The plaintiff has waived the ground of bias in the respects relied upon in this proceeding. In particular, if the plaintiff were intent on taking the bias point, he should have done so by either taking the matter up with the Court of Appeal so as to debate whether a different order should have been made or raised the bias allegation at the threshold on the remitter to the Commissioner. He did neither. It is significant that the plaintiff brought the matter back before the Court of Appeal on the issue of costs on 26 May 2008. This was ten days after the Court of Appeal delivered its reasons and made orders stating that the defendant was able to deal further with the matter after affording the plaintiff a right to be heard .... However the plaintiff, who was represented by Senior and Junior Counsel, did not at this or any other time raise with the Court of Appeal that such relief might be objectionable on the basis of actual or apprehended bias."
32 In answer to the waiver point, Senior Counsel for the plaintiff said:[29]
"At the time of the referral back to the Commissioner for consideration, one would have expected her to reconsider the matter in the light of the arguments and provide an impartial mind to it. At that stage there was no evidence that she would not do that. What we say, though, is that when we get the referral and the request to submit information, the position is clear at that stage that she is ignoring one of the bases upon which we say the matter should have been considered, and that is that it is a civil dispute. It is at that time we get the letter that it becomes apparent that there is an apprehension of bias."
33 It follows that the plaintiff's case of ostensible bias is one where the ostensible bias is said to have manifested itself only upon the plaintiff's receipt of the letter of 14 July 2008 - although the bias manifests itself then in the context of submissions previously made that the complaint constitutes a disciplinary complaint. In these circumstances it is not necessary to consider the waiver issue further.
34 The plaintiff's complaint in respect of the issue of bias may be summarised as follows:
(a) First, in sending the letter of 14 July 2008, the defendant ignored one of the bases upon which the plaintiff asserts the matter should have been considered (that is, as a civil dispute). In the context of the statements made by the defendant's counsel in the previous proceedings between the parties that the complaint was a disciplinary complaint, this is said to give rise to a reasonable apprehension of bias.
(b) Secondly, it is said that the lack of adequate reasons provided by the defendant gives rise to a reasonable apprehension of bias.
(c) Thirdly, the defendant's failure to recuse herself upon the plaintiff's application is also relied upon.
35 There is nothing in the plaintiff's complaints (considered either separately or together). I have already dealt with the issue of the adequacy of the defendant's reasons. The reasons were not inadequate, nor do they disclose error or any failure to have regard to relevant criteria. Neither the letter of 14 July nor the letter of 6 August discloses any bias. Again, the failure in the letter of 14 July to refer to the issue of a "civil dispute" is not to the point. For the reasons already given, it is not an answer to the question of whether a complaint is a disciplinary complaint to assert that it is not a disciplinary complaint because it is a civil complaint: a complaint can be both a civil complaint and a disciplinary complaint (and/or involve both a civil complaint and a disciplinary complaint).
36 As to the issue of the defendant refusing to recuse herself, this does not demonstrate any bias. Even if one accepts for present purposes the plaintiff's construction of the defendant's letter of 6 August 2008 (extracted at the end of paragraph 3 above) as involving a misunderstanding of either the plaintiff's application that the defendant not deal with the matter or a "misunderstanding of the defendant's role",[30] there was no basis upon which the defendant should have recused herself. The defendant's failure to accede to the plaintiff's application[31] does not give rise to a reasonable apprehension of bias. Having regard to the conclusion I have reached in respect of the issue of bias, it is not necessary for me to consider the issue of necessity (see generally Metropolitan Fire & Emergency Services Board v Churchill,[32] Hicks v Aboriginal Legal Service of Western Australia[33] and Part 6.3 of the Legal Profession Act). However, the issue of necessity would clearly be a significant one if bias was established.[34]
37 It follows from what I have said above that the plaintiff's complaints of bias are not made out.
38 For the reasons given above, the order nisi must be discharged. I will hear the parties on the appropriate form of order and on the question of costs.
[1] Originally, an order nisi in more limited terms was made on 27 August 2008. The order extracted above was made on appeal by the plaintiff from the orders originally made on 27 August.
[3] [2008] VSC 78 at paragraph [90].
[4] See s 23 of the Professional Standards and Legal Profession Acts Amendment Act 2008.
[5] See further footnote 5 of the outline of submissions on behalf of the defendant dated 3 April 2009.
[6] The affidavit evidence in this case was constituted by affidavits of the plaintiff sworn 25 August 2008, 29 August 2008 and 14 April 2009 and affidavits of Cara Louise O'Shanassy sworn 16 September 2008 and 3 April 2009.
[9] See the Court of Appeal's decision at [2008] VSCA 78, paragraphs [73]-[91].
[10] To the extent that clarification was needed as to whether the plaintiff was alleging actual bias (or merely ostensible bias) Senior Counsel for the plaintiff confirmed during the hearing that the bias claim was an ostensible bias one.
[11] [2000] VSCA 171; (2000) 2 VR 246 at paragraph [64].
[12] See generally Dixon v Hacker [2007] VSC 342 at paragraphs [40]-[44], Davidson v Fish [2008] VSC 32, Amendola v Coles Supermarkets Australia Pty Ltd [2008] VSC 36, Bluescope v Nisselle & Ors [2008] VSC 72, Robert Bosch (Australia) Pty Ltd v Barton [2008] VSC 227 and Treacy v Newlands [2008] VSC 395.
[13] See the first sentence of the defendant's letter dated 6 August 2008.
[14] [2008] VSCA 78 at paragraph [49] and following.
[18] [2008] VSCA 78 at paragraph [51].
[19] See for example the first four paragraphs of the explanatory memorandum under the heading "General" and the Hansard for the Legislative Assembly of 16 November 2004 at p 1542.
[20] Cf Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246 at paragraph [64].
[21] I should say for the sake of completeness that I have looked at all of the paragraphs of the order nisi in relation to both the defendant's decision that Mr Smirnios' complaint was a disciplinary complaint and the defendant's decision not to summarily dismiss the complaint under s 4.2.10. I have done this because the orders of Vickery J made on 1 September 2008 do not distribute the grounds set out therein over the four identified (but, in reality only two) decisions made by the defendant. In truth it might be said that some of the grounds in the order nisi relate to only one of the decisions made by the defendant. For example, paragraph (c) of the order nisi more properly relates to the decision not to summarily dismiss, rather than the decision to treat Mr Smirnios' complaint as a disciplinary complaint.
[22] See the first sentence and the last two sentences of the paragraph numbered 1 in the defendant's letter of 6 August 2008.
[23] Cf paragraph (b) of the order nisi.
[24] Cf paragraph (c) of the order nisi.
[27] I should note for the sake of completeness that while there was no complaint about reasons in the previous proceedings between the parties, notwithstanding the judgments contain a detailed consideration of the matters the subject of this proceeding, neither Kaye J nor the Court of Appeal said anything in their reasons to cast doubt on the adequacy of the reasons of the Commissioner for her original decision. Those reasons were encapsulated in a letter as follows:
"Pursuant to s 4.2.8 of the Legal Profession Act 2004 ('the Act') I am writing to notify you that I have received a complaint from Wisewoulds on behalf of Mr Peter Smirnios made against you which involves disciplinary issues. As I am required to give you details of this complaint, I enclose a copy (without attachments) for your information.
Pursuant to s 4.4.9 of the Act I have referred the disciplinary complaint raised by this matter to the Law Institute of Victoria Limited being a prescribed investigatory body for the purposes of the Act. That body is required to investigate the complaint and report to me on its progress. At the completion of the investigation I will make a determination in respect of the disciplinary complaint made in accordance with the Act."
See the judgment of Nettle JA [2008] VSCA 78 at paragraphs [19] and [91].
[28] Having regard to the concession made by Senior Counsel for the plaintiff during argument that this case concerned ostensible bias rather than actual bias.
[30] See the last sentence of paragraph 26 of the plaintiff's outline of submissions served on 16 March 2009.
[31] Insofar as paragraph 5 of the plaintiff's general observations in his letter of 25 July 2008 could be considered as such an application (noting that on p 11 of the plaintiff's letter, the plaintiff sought summary dismissal of the complaint from the defendant).
[32] [1998] VSC 51 at paragraphs [121]-[195].
[33] [2000] FCA 544; (2000) 61 ALD 451 at paragraph [32].
[34] But cf ss 6.3.8 and 6.3.12 of the Legal Profession Act.
# Byrne
The Legal Services Commissioner \[2009\] VSC 210
(2000) 2 VR 246