Plaintiff v First Defendant

• In August 2003 the plaintiff held a brief for certain clients ("the Reids") in relation to various proceedings;

• On about 15 August 2003, the Reids commenced a proceeding in the Federal Magistrates Court in which one Hubbard and a company, Esandcee Pty ("S&C")[6] were respondents ("the Magistrates Court proceeding") in which the Reids sought to set aside a bankruptcy notice which had been issued by S&C against Hubbard;

• The plaintiff, together with junior counsel, represented and appeared for the Reids in the Magistrates Court proceeding which was heard in August and September 2003 and made submissions therein ("the Magistrates Court submissions");

• The Magistrates Court, apart from extending the time for compliance with the bankruptcy notice, dismissed the Reids' proceeding on 1 October 2003[7];

• The Reids appealed to the Federal Court of Australia against the judgment in the Magistrates Court proceeding;

• The plaintiff, together with junior counsel, represented the Reids on the appeal ("the Federal Court proceeding") and settled a summary of argument filed therein and appeared at the hearing of the Federal Court proceeding in October 2003;

• On 5 December 2003 the Federal Court, apart from extending the time for compliance with the bankruptcy notice, dismissed the appeal;

• On 6 April 2004 the Ethics Committee of the Bar resolved to investigate on its own motion pursuant to s.146(2) of the Act certain alleged conduct in the Magistrates Court proceeding and in the Federal Court proceeding;

• In May 2004 S&C (and a solicitor, Andrew Henry Joseph) made a complaint against the plaintiff in respect of her conduct in the Magistrates Court proceeding and in the Federal Court proceeding, and the Ethics Committee had resolved to investigate the same.

9 The charges document then set out 24 charges of misconduct against the plaintiff. Charges 1 to 14 related to statements, allegations or suggestions said to have been wilfully or recklessly made by the plaintiff in her opening, or in her address on evidence, or otherwise, in the Magistrates Court proceeding. The charges alleged that the plaintiff made those statements, allegations or suggestions in contravention of the Bar's Rules of Conduct (the "Rules of Conduct"). Some of the charges relied upon r 35 of the Rules of Conduct relating to allegations made without reasonable grounds for a belief that the allegation would be capable of being supported by available evidence. Some of the charges relied upon r 42 of the Rules of Conduct relating to suggestions made without reasonable grounds for any belief that the evidence provided a proper basis for the suggestion and/or for believing that the matters covered by the suggestion were well-founded. Some of the charges relied upon r 31 of the Rules of Conduct relating to allegations or suggestions made without taking care to ensure that the decision to make the same was reasonably justified by the available material and did not go beyond what was appropriate for the robust advancement of the case on its merits.

10 All of the above charges relating to the Magistrates Court proceeding had a common theme involving alleged misconduct by the plaintiff by making statements attacking and criticising the alleged conduct and/or alleged misconduct by and/or motives of S&C and Joseph in and about issuing the bankruptcy notice against Hubbard, including suggestions that there was no debt, or that a judgment had been improperly obtained, for fees owing for legal services rendered such as would properly support a bankruptcy notice. Another of these charges alleged wilful or reckless cross-examination by the plaintiff of Hubbard, suggesting serious misconduct on the part of Joseph when there were no reasonable grounds to support such a suggestion, in alleged contravention of r 38(a) of the Rules of Conduct.

11 The remaining charges 15 to 24 related to the plaintiff's alleged conduct with regard to the notice of appeal to the Federal Court and to the Federal Court proceeding.

12 By notice dated 19 July 2005 the Legal Profession Tribunal set all of the charges against the plaintiff down for a preliminary hearing. At a preliminary hearing on 9 August 2005, the Legal Profession Tribunal directed the Bar to provide certain further particulars of the charges and the documents relied upon as evidence in support of the charges and an index of such documents. On 23 August 2005 the Bar provided the plaintiff's solicitors with an index of documents and copy documents contained in 11 volumes, and on 21 September 2005 the Bar provided the plaintiff with particulars of all of the charges in a document comprising 54 pages. Thereafter there was a dispute between the parties about the charges and the particulars and a further directions hearing was adjourned for hearing before a Full Tribunal.

13 As a result of the coming into operation of the Legal Profession Act 2004 (Vic) the charges were listed in the "Legal Practice List" of VCAT to be heard by a Full Tribunal comprised of EJ Cullity QC (Vice-President), A Vassie (Senior Member) and H Campbell (Member). At a directions hearing on 19 December 2005, following a suggestion by the Vice-President, the Bar indicated that it proposed to prosecute charges 1 to 14 against the plaintiff and to reserve its position in relation to the prosecution of charges 15 to 24, while making it clear that the Bar did not withdraw any of the latter charges. As a result, in a ruling dated 1 March 2006, the Tribunal found that the charges and particulars thereof were adequate and ordered that a hearing of charges 1 to 14 proceed on 10 April 2006.

14 The hearing of the first 14 charges commenced in the Tribunal on 10 April 2006 and occupied 20 sitting days over a five week period in April and May 2006. Dr Jessup QC (as he then was) appeared with Mr J O'Bryan and Mr S Pitt of counsel for the Bar and Mr Rush QC and Ms Doyle of counsel appeared on behalf of the plaintiff. Dr Jessup's opening occupied over five days. On the sixth sitting day the Tribunal invited the Bar to consider the unreported decision of JD Phillips J (as he then was) in Zaitman v Law Institute of Victoria[8]. The aspect of this decision to which attention was drawn by the Tribunal was his Honour's statement in his reasons for judgment that "the expression 'wilful or reckless contravention' (of the Act, the rules or the regulations) in para.(a) of the definition of 'misconduct' ... requires that the contravention itself be wilful or reckless and not that the conduct, which is said to constitute the contravention, be wilful or reckless ..." Following that invitation, on 20 April 2006 the Bar sought and was permitted to amend charges 1 to 14. The charges as originally drawn alleged that the conduct of the plaintiff was wilful or reckless (or, at least, that was a reasonable interpretation having regard to the way the charges were framed) but the amendments made it abundantly clear that the charges related to alleged wilful or reckless contraventions of the Rules of Conduct, not simply to wilful or reckless conduct. Apparently because the Tribunal was at that stage dealing only with charges 1 to 14, these were the only charges that were amended.

15 At the conclusion of the case put on behalf of the Bar, an application was made on behalf of the plaintiff that there was no case to answer. The basis of that application was that there was no evidence or proof of the plaintiff's state of mind relevant to wilful or reckless contravention of the Rules of Conduct. The Tribunal rejected this application, stating that a "consideration of the transcripts of the proceedings before Chief Federal Magistrate Bryant and the written submission on evidence ... indicates to us a sufficient basis of facts from which it would be open to draw an inference in relation to [the plaintiff's] state of mind at the relevant time" and went on to say:

"In a general sense the nature of the statements or allegations put by counsel[9] were of a serious nature and could support an inference that counsel would, at that time, have been conscious of the provisions of the Bar rules of conduct and conscious of whether or not they might be acting in contravention of the rules."

16 I interpolate here that during the course of the investigation by the Ethics Committee that led to charges being brought, the plaintiff's solicitors had stated in a letter dated 27 May 2005 that:

"Senior Counsel at all times acted upon instructions from the Reids. Senior Counsel was careful to check that the instructions had been thoroughly obtained. The case was opened upon instructions. At all times Senior Counsel believed that the statements made in opening were based upon available evidence and upon reasonable inferences available from the evidence. The contention that Senior Counsel wilfully or recklessly made statements that could not be supported upon the evidence is rejected. (This is a submission which is relevant to almost all of the 35 conduct issues raised by the correspondence by the Committee)."

17 The cross-examination of the plaintiff occupied two days of the hearing. Apparently the stance taken by the plaintiff at the hearing as to her relevant beliefs continued to be the same as that stated in the above letter. Nor was it put to the plaintiff in the course of cross-examination that she did not possess a bona fide belief that the submissions, statements and other conduct in respect of which she had been charged were based upon available evidence or upon reasonable inferences available from the evidence. In closing submissions, Dr Jessup said that the Bar did not contend that the barristers' beliefs in the case were other than what they had stated them to be to the Tribunal.

18 The Tribunal handed down its decision and reasons in a 186 page document on 14 July 2006. The Tribunal dismissed 10 of the 14 charges against the plaintiff and in relation to the other four charges[10] found the plaintiff not guilty of misconduct but guilty of unsatisfactory conduct by acting in breach (but not wilfully or recklessly) of the specified Rules of Conduct.

19 As to the four charges where the Tribunal found that the plaintiff had been guilty of unsatisfactory conduct, it is convenient to here note both the nature of the offence and some relevant aspects of the Tribunal's reasons as to the plaintiff's state of mind in relation thereto:

• The unsatisfactory conduct consisted of contravening r 42 of the Rules of Conduct by, in the course of her address on the evidence in the Magistrates Court proceeding, suggesting that there had been serious misconduct on the part of S&C and/or Joseph by colluding with Hubbard to have the bankruptcy notice issued and served upon him (Hubbard), and/or so issued and served to achieve a collateral advantage as against the Reids, when there were no reasonable grounds for any belief that the evidence in the case provided a proper basis for the suggestion and/or there were no reasonable grounds for believing that the matters covered by the suggestion were well-founded;

• In relation to charge 7, the Tribunal said that the evidence given by the plaintiff indicated that prior to filing final written submissions in the Magistrates Court proceeding she referred to, considered and discussed their impact in relation to the Rules of Conduct. She considered her position and in that regard did not act in cavalier disregard of the rules. Her belief and state of mind was accepted by the Bar. The Bar had not sought a finding of wilful contravention and the Tribunal found that reckless contravention had not been proved.

• The unsatisfactory conduct consisted of contravening r 38(a) of the Rules of Conduct by cross-examining Hubbard in the Magistrates Court proceeding, so as to suggest serious misconduct on his part and/or on the part of Joseph, namely that there had been collusion between them (and/or between Hubbard and S&C) to have the bankruptcy notice issued and served upon Hubbard, and/or to have it so issued and served to achieve a collateral advantage as against the Reids, when there were no reasonable grounds capable of supporting a belief that the material already available to her provided a proper basis for the suggestion;

• In relation to charge 9, the Tribunal said that it took the view that, despite the serious nature of the breach of the rule, the conduct, being in cross-examination, was less pre-meditated than was of course the case in written final submissions, and it was not satisfied that there was a reckless contravention.

• The unsatisfactory conduct consisted of contravening r 42 of the Rules of Conduct by, in the course of her address on the evidence in the Magistrates Court proceeding, suggesting that there had been serious misconduct on the part of S&C and/or Joseph by causing the bankruptcy notice to be issued and to be served upon Hubbard, for the purpose of extorting money, or, for that purpose implying that S&C and/or Joseph had obtained a County Court judgment against Hubbard and had caused the bankruptcy notice to be issued and served upon Hubbard believing that S&C had no legitimate claim against Hubbard for the amount of the judgment, when there were no reasonable grounds for any belief that the evidence in the case provided a proper basis for that suggestion and/or there were no reasonable grounds for believing that the matters covered by the suggestion were well-founded;

• In relation to charge 11, the Tribunal noted that the Bar did not submit that the contravention was wilful or reckless, the Tribunal accepted the plaintiff's evidence that she had discussed and considered the impact of the Rules of Conduct and found that the contravention was not wilful and further the Tribunal found that the contravention was not reckless on the basis of that evidence.

• The unsatisfactory conduct consisted of contravening r 31 of the Rules of Conduct by alleging or suggesting, in the Magistrates Court proceeding, that S&C and/or Joseph had abused the process of the Supreme Court by continuing to act for, and to incur fees on behalf of, Hubbard in the Supreme Court proceedings after they had caused to be put to Beach J in those proceedings the proposition that unless the Mareva injunctions were varied as sought by Hubbard, they (S&C and/or Joseph) would not continue to act for Hubbard as his solicitor in those proceedings and by failing to take care to ensure that her decision to make that allegation or suggestion was reasonably justified by the material available to her;

• In relation to charge 14, the Tribunal noted that the Bar had not pressed for a finding that the contravention had been reckless and that in any event the plaintiff had sworn that she took particular care that the making of the allegations did not contravene the Rules of Conduct and was convinced she was not contravening them; accordingly the Tribunal found that her conduct could not constitute a reckless contravention of a rule of conduct.

20 On 18 August 2006 the solicitors for the Bar wrote to the plaintiff's solicitors relevantly advising that:

"We confirm (as already indicated through Counsel) that, save for Charge 21, the Bar will not lead any evidence in relation to the remaining charges against [the plaintiff].

In relation to Charge 21, the Bar will seek leave to amend that charge to one of unsatisfactory conduct ..."

"In the Federal Court proceeding, in your Summary of Arguments dated 17 October 2003 you knowingly, and wilfully or recklessly, made a misleading statement to that court, namely that, in an affidavit sworn by Joseph on 22 August 2003 and in his evidence in chief in the Magistrates Court proceeding, he did not dispute the claim made in that proceeding by you that at the relevant time Hubbard owed S&C either $17,689.38 or nothing, or was in credit, when you knew that Joseph had, before you made that statement, sworn an affidavit on 1 September 2003 disputing that claim in detail, in contravention of r 19 of the Rules of Conduct.

PARTICULARS

The statement is made in the Summary of Arguments filed on behalf of the Reids dated 17 October 2003, particularly at paragraph 36."

22 In order to understand the background to charge 21, I interpolate here that, in the reasons for judgment[11] of Heerey J dated 5 December 2003 in the Federal Court proceedings, his Honour made reference to the affidavit of Joseph sworn 1 September 2003 (referred to in charge 21) and the exhibits thereto and said that an examination of the S&C analysis (provided by that affidavit and exhibits) clearly bore out S&C's contention as to the amounts owing by Mr Hubbard and Heerey J went on to say:

"The contrary is not seriously arguable. However, not only did the appellants [the Reids] persist with their argument, they attributed to S&C an acceptance of it. In [the plaintiff's] written submissions it was said:

'36. In the Joseph affidavit and in the course of leading evidence from Joseph, S&C did not dispute the applicants' case that either Hubbard owed S&C no more than a sum of $17,689.38, or that he owed them no money, or that in fact he was in credit.'

This submission is inexplicable."

23 On 21 August 2006 the Tribunal heard submissions in relation to penalty and to costs.[12] The Bar also proposed to amend charge 21 by deleting the words "and wilfully or recklessly". Senior counsel for the Bar explained this proposed amendment as effectively changing the charge from "misconduct" to "unsatisfactory conduct" and said:

"The reason we're saying that is that having regard to evidence that [the plaintiff] gave in the previous hearing, having regard to Zaitman, having regard to the tribunal's finding, the Bar doesn't wish to seek a finding of misconduct because of the necessary state of mind issue, the Zaitman issue. So we're seeking to amend 21 effectively to an unsatisfactory conduct charge..."

24 The Tribunal then heard submissions as to whether it had power to, or should, permit the amendment. In the course of those submissions, the following exchange took place between the Vice-President (referred to as "his Honour") and Senior Counsel for the Bar:

"HIS HONOUR: - - - what in effect the Bar is doing is that it has brought before the full tribunal a charge of misconduct.

MR SCERRI: Yes, Your Honour.

HIS HONOUR: Now, does the Bar not propose to lead any evidence in support of the charge of misconduct.

MR SCERRI: The Bar does not propose to proceed with the charge of misconduct under charge 21, if that's the same thing.

...

HIS HONOUR: Let me hit it straight between the eyes. If you're not leading evidence of misconduct that charge must be dismissed.

MR SCERRI: Not if it can be amended, Your Honour.

HIS HONOUR: But how can you amend - - -

MR SCERRI: I'll come to the amendment power in a minute.

HIS HONOUR: No, you can't amend misconduct to unsatisfactory conduct, can you?

MR SCERRI: We say we can. I'll come to that in a minute if I could, but in relation to misconduct the act says we can proceed with misconduct and the tribunal can find unsatisfactory conduct.

HIS HONOUR: But you're not proceeding with misconduct.

MR SCERRI: We've got a charge for misconduct - - -

HIS HONOUR: No, you say you're proposing to amend to delete misconduct.

MR SCERRI: Yes, I do say that.

HIS HONOUR: And you want to proceed, so if you don't lead evidence of misconduct, that charge having been brought before the full tribunal and you lead no evidence in support of misconduct, the tribunal being a statutory body, what can it do?

MR SCERRI: If the charge is amended it can deal with it.

HIS HONOUR: Leave aside the amendment.

MR SCERRI: If the charge is not amended and we lead no evidence the position is the same as with the other charges.

HIS HONOUR: Dismissed.

MR SCERRI: Yes exactly ..."

"We're not withdrawing our application [viz to amend charge 21], we are pressing the application [and] saying it should be granted. If the tribunal was against us, the tribunal ought to dismiss the application, but I don't want a complaint in a few month's time that the Bar was dishonest or improper in the way it ran the case. We are saying that accepting [the plaintiff's] evidence, she will give evidence next time on charge 21 about her state of mind. That is likely to lead to a finding that there was no misconduct because it was not wilful or reckless. Therefore, instead of wasting time let's cut to the chase and amend the charge accordingly. If that's not acceptable, we'll press on with the charge on the basis that our case is unsatisfactory conduct, relying upon s.161."

26 The Tribunal ruled that it had no power to make the amendment sought by the Bar because unsatisfactory conduct was a separate and distinct charge that could only be dealt with by the Tribunal under s.161 of the Act. Mr Rush on behalf of the plaintiff then submitted that charge 21 should be dismissed because the Bar had conceded that it had no evidence of misconduct and could not sustain the charge of misconduct. Mr Scerri responded that the Bar would be saying, on charge 21, that the evidence could support a finding of unsatisfactory conduct. After further argument, the Tribunal said that the charge of misconduct had been brought within the provisions of the Act and the Tribunal was then charged with the hearing and determination of it. The Tribunal noted that the Bar intended to proceed by way of bringing evidence before the Tribunal on the understanding that it would invite the Tribunal to apply the provisions of s.161 of the Act. The Tribunal concluded:

"This Tribunal is a statutory authority bound by the provisions of the Act and consequently it has indicated it has no power to amend, and consequently it's charged with the hearing of the charge number 21, and that matter will then have to proceed before the Full Tribunal."

27 On 22 August 2006 the plaintiff applied for an order that the Tribunal permanently stay charge 21 but this application was refused.

28 On 22 August 2006 the Tribunal handed down a decision and reasons. The Tribunal recited that it found the plaintiff guilty of unsatisfactory conduct on charges 7, 9, 11 and 14, not guilty of misconduct on charges 1, 2, 3, 4, 10 and 13 and had dismissed all other charges (save for charge 21). On the offences of unsatisfactory conduct, the Tribunal ordered that the plaintiff "is reprimanded" and the hearing of charge 21 was fixed for 1 and 2 November 2006.

29 A formal order refusing the plaintiff's application for a permanent stay of charge 21 was issued dated 4 September 2006. The order was accompanied by a written ruling stating inter alia:

"11. It was not suggested that the investigation by the Bar that resulted in charge 21 being brought before the Full Tribunal on 4 July 2005 was conducted otherwise than in accordance with the provisions of the Act. Nor was it suggested that the bringing of the charge of misconduct was at that time otherwise than as a result of the Bar being satisfied that there was a reasonable likelihood the Tribunal would find [the plaintiff] guilty of misconduct.

12. Section 157 of the Act provides the Tribunal must hear and determine a charge brought to it. The charge brought in charge 21 is misconduct. That charge was properly brought in compliance with the provisions of the Act. It must be heard by the Tribunal.

13. It is well recognised that the nature of evidence available to be presented by a prosecution authority may vary, either strengthen, weaken or cease to exist with the passage of time between presentation and hearing.

14. In this case the Bar has indicated that it does not now have the evidence to support 'wilfulness or recklessness'. The Bar does not seek to withdraw charge 21. It seeks for the Tribunal to hear the charge as it must. Whether the Tribunal decides to apply the provisions of section 161 can only be decided in the course of hearing the charge in accordance with the provisions of the Act.

15. The Tribunal on Monday, 21 August 2006, refused leave to amend.

16. On Tuesday 22 August 2006 Mr Rush sought a permanent stay of charge 21 ...

[The submissions of the parties were then summarised and the Tribunal said it had no power to order a stay under s.407 (duty to act fairly) or s.414 (power to give directions)]

23. We are satisfied there is no power in the Tribunal to order a permanent stay of a charge properly brought before it pursuant to the provisions of section 157 of the Act.

24. We fix 1 and 2 November 2006 for the hearing of charge 21."

30 These are the circumstances that led to the plaintiff filing the originating motion herein on 26 October 2006. It is convenient to set out the grounds that were articulated in the supporting affidavit of the plaintiff's solicitor, Ross Antony Donaldson sworn on the same date:

(a) The prosecution of the misconduct pursuant to charge 21 is foredoomed to fail. The Bar has conceded, in support of its application to amend charge 21, that there is no evidence to support a charge of misconduct by reason of the fact that the requisite evidence of wilfulness or recklessness is absent. It does not even propose to invite the Tribunal to make a finding of misconduct against [the plaintiff]. For the prosecution and hearing of the charge to proceed in such circumstances would constitute an abuse of process.

(b) The Victorian Bar, as an RPA under the 1996 Act, is required to bring charges of misconduct in the Tribunal only when satisfied that there is a reasonable likelihood that the Tribunal will find the legal practitioner guilty of misconduct. Despite the statement to that effect which remains in the preamble to charge 21 which the Bar now seeks to prosecute, the Bar itself has said that there is no evidence capable of sustaining a charge of misconduct and that it will lead no evidence and invite no verdict in respect of misconduct. For the prosecution and hearing of the charge to proceed in such circumstances would constitute an abuse of process.

(c) The prosecution of charge 21 is, by the Bar's own admission, being pursued for a collateral purpose: namely as a basis for the Bar to invite the Tribunal at the conclusion of the hearing to make a finding (pursuant to s161 of the 1996 Act) of an alternative charge, namely unsatisfactory conduct. For the prosecution and hearing of the charge to proceed in such circumstances would constitute an abuse of process.

(d) The prosecution of charge 21 against [the plaintiff] in all the above circumstances as a charge of misconduct is oppressive and unfair, possesses no utility and is not in the public interest:

(i) Despite the Bar's admission that there is no evidence to support a finding of misconduct, it nevertheless proposes to pursue a serious charge against [the plaintiff], subjecting her to the further time, cost and stress ... necessarily involved in [a] public ... hearing before a Full Bench of VCAT of a serious charge;

(ii) By proceeding in this manner, the Bar deprives [the plaintiff] of the range of options otherwise open pursuant to s151 of the 1996 Act in circumstances where a legal practitioner is charged with unsatisfactory conduct, rather than misconduct. One of those options is to take no further action against the practitioner;

(iii) In all the circumstances, there is no public interest in the further hearing of the remaining charge."

Prohibition

31 The plaintiff submitted that the Bar, as an RPA with statutory powers and duties, was amenable to an order in the nature of prohibition. This submission was not disputed by the Bar and I am content to assume that it is correct.

32 The plaintiff submitted that, because the Bar had indicated to the Tribunal that it did not propose to proceed with a charge of misconduct under the rubric of charge 21, the Bar did not have and does not have the requisite state of satisfaction to bring a charge of misconduct under s.151(2) of the Act. Accordingly, it was submitted, the Bar should be prohibited from proceeding with charge 21.

33 Assuming for the purposes of this argument that the Bar had in substance indicated to the Tribunal that it did not propose to proceed with the charge of misconduct under the rubric of charge 21, a question arises as to the proper construction of s.151(2) of the Act. That provision requires as RPA to "bring a charge in the Tribunal ... if satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner ... guilty of misconduct." As I have said, the charges were brought in the sense of laid when the charges document was provided to the Tribunal on or about 4 July 2005. It was not suggested that the Bar was not at that time satisfied that there was a reasonable likelihood that the Tribunal would find the practitioner guilty of misconduct. In my opinion, contrary to what the plaintiff appeared to be contending, s.151(2) of the Act does not contain a continuing requirement that the Bar have the relevant level of satisfaction. The obligation upon the Bar to bring the charges arises when the Bar is satisfied in terms of the section, but, once the charges are brought, the section does not require that satisfaction to continue at all times up to the time of the Tribunal's decision. To put it another way, I think that the phrase "bring a charge" refers to the laying of the charge at the outset and not to the prosecution of the charge thereafter. That construction accords with the plain language of the section and is, I think, confirmed by s.157(1) of the Act which provided that the Tribunal must hear and determine a charge brought against a legal practitioner by an RPA. Thus the Tribunal has both jurisdiction and an obligation to hear and determine a charge once it is brought.

34 The plaintiff advanced an alternative argument on the basis that the action of the Bar might be characterised as that of bringing a charge of unsatisfactory conduct and that it had no power to do so. However it is clear that the Bar has not brought a charge of unsatisfactory conduct. The application to amend the charge was refused and the only charge that the Bar seeks to prosecute is the charge comprised in charge 21.

35 For those reasons, I consider that the plaintiff has failed to establish any case for an order in the nature of prohibition to go against the Bar.

36 The Tribunal is amenable to an order in the nature of prohibition in an appropriate case and the Bar did not contend otherwise.[13]

37 The plaintiff submitted that the Tribunal should be prohibited from proceeding to hear charge 21 for the same reason as that advanced against the Bar as set out above, and that submission must fail for the same reasons.

38 As I understood it, the plaintiff also submitted that the Tribunal should be prohibited from proceeding to hear charge 21 because it was defective, in that it alleged that a misleading statement was made knowingly or wilfully or recklessly when it should have been alleged that a misleading statement was made in wilful or reckless contravention of r 19 of the Rules of Conduct. The problem with this submission is that it is open to the Bar, if it considers that charge 21 is defective in this way, to seek to amend the charge in the same way that charges 1 to 14 were amended. The plaintiff submitted that the Tribunal could not or would not grant such an amendment because, in effect, it would be futile to do so, given that the Bar had indicated that it was not seeking to establish or was unable to establish the requisite wilfulness or recklessness. I do not think that this argument goes to the jurisdiction of the Tribunal (or, for that matter, any error of law). The question whether charge 21 is defective or whether it should be amended is a matter for the Tribunal to decide and it has not yet done so.

Stay of proceeding

39 It was common ground that the Supreme Court, as the superior Court of Victoria with unlimited jurisdiction,[14] had jurisdiction or power to stay a proceeding in the Tribunal on the ground that it constituted an abuse of process. The issue between the parties was whether to proceed against the plaintiff on charge 21 was, in all the circumstances, an abuse of process.

40 As to abuse of process, the plaintiff submitted that there were circumstances constituting injustice and unfairness to the plaintiff and they were such as would bring the administration of justice into disrepute. Reference was made to the following matters:

• The burden on the plaintiff in persisting with a disciplinary hearing resulting from an investigation which had commenced on 23 March 2004 and which had taken 20 sitting days (plus interlocutory hearings) already in relation to associated charges;

• The plaintiff had been exposed to an onerous and costly procedure in the course of which all but one of the 24 charges had been disposed of;

• The continued hearing of the single remaining charge would be oppressive and unfair with no possible countervailing utility;

• The protection of the public was ordinarily a factor of great importance when a stay of disciplinary proceedings was sought but it was of radically diminished significance in this case where the plaintiff had already been reprimanded as a result of the hearing of the first 14 charges;

• The administration of justice would be prejudiced by permitting the Bar to pursue an unsatisfactory conduct case through the mechanism of a misconduct case, contrary to the spirit of s.151(2) and (3) of the Act (assuming that the Bar had the power to do this);

• By seeking to proceed with a misconduct charge in form but an unsatisfactory conduct charge in substance, the Bar was denying the plaintiff significant procedural benefits under the Act;[15]

• In addition, the case was "foredoomed to fail" because it had inevitably to fail as the Bar did not propose to pursue a charge of misconduct and the charge as presently framed was defective;

• The Bar was using the charge of misconduct for the collateral purpose of seeking to obtain a finding of guilt in relation to a lesser charge in respect of which the legislation provided other procedures and choices;

41 In answer, the Bar submitted that there was no injustice and unfairness to the plaintiff by prosecuting charge 21 before the Tribunal. The first 14 charges had been dealt with separately at the suggestion of the Tribunal and the parties had acquiesced in this course. The delay in the hearing of the remaining charges was a necessary consequence of the procedure so adopted. The Bar had then taken the view that all but one of the remaining charges effectively related to similar conduct as that dealt with in the first hearing whereas the Bar considered that charge 21 was entirely different. Accordingly the Bar had indicated to the Tribunal that it did not propose to lead evidence on the remaining charges, other than charge 21. Charge 21, it was said, related to an allegedly misleading statement made to the Federal Court which Heerey J had described as "inexplicable". The Bar contended that, even if the conduct the subject of charge 21 might be characterised as "bizarre" or "stupid", the Bar considered it to be a serious matter. It was submitted that there was no prejudice to the plaintiff in having to answer the remaining charge as she was required to do under the Act.

42 The Bar further submitted that charge 21 was not "foredoomed to fail". If the plaintiff gave evidence as to her relevant state of mind in answer to charge 21, and it was the same kind of evidence that she had given in relation to the earlier charges, then it was likely to lead to a finding that there had been no wilful or reckless contravention of the Rules of Conduct. If the plaintiff did not give any evidence, it was arguably open to the Tribunal to infer wilfulness or recklessness (as, I note, the Tribunal had indicated was open to be inferred when dismissing the no case submission at the earlier hearing). Further, indications given or statements made by or on behalf of the Bar to the Tribunal as to the likely result of the hearing of charge 21 were simply subjective opinions or views not binding on the Tribunal and simply because the Bar had stated that it was unlikely that a case of misconduct would be made out and it would be pressing for a finding of unsatisfactory conduct did not mean that the charge of misconduct would inevitably fail. Further, if it was possible that a hearing of charge 21 might result in a finding of unsatisfactory conduct pursuant to the power in that behalf given by s.161 of the Act, it would be incorrect to conclude that the charge was bound to "fail" as a finding on the lesser charge was one of the results contemplated by the Act.

43 As regards improper or collateral purpose, the Bar submitted that there could be no such purpose involved in its indication that it would be submitting that the Tribunal should make a finding of unsatisfactory conduct, a lesser charge, because that charge was open to the Tribunal and permitted by s.161 of the Act.

44 Before considering these submissions, it is convenient to refer to the authorities cited by the parties.

45 In Walton v Gardiner[16] ("Walton") the High Court (Mason CJ, Deane and Dawson JJ) (Brennan and Toohey JJ dissenting) held that certain proceedings before the New South Wales Medical Tribunal had been properly stayed. The majority judgment said that it was settled that the New South Wales Court of Appeal's supervisory jurisdiction with respect to "the administration of justice in New South Wales"[17] extended, in the absence of legislative intervention, to the making of an order staying proceedings in the Medical Tribunal on the ground that they constituted an abuse of the Tribunal's process. Their Honours said:[18]

"The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. [Reference is then made to abuses of process constituted by cases where a court is a clearly inappropriate forum or where the continuation of proceedings would be unjustifiably vexatious and oppressive, having been disposed of by earlier proceedings.] The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as 'The inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people'."

46 The majority went on[19] to refer to the breadth of the Court's power as enunciated in Jago v District Court of NSW[20] ("Jago") in which case Mason CJ had referred to a court's power to prevent its processes being employed in a manner which gave rise to unfairness and had quoted with approval the remarks of Richardson J of the New Zealand Court of Appeal in Moevao v Department of Labour[21] as follows:

"public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice."

47 The majority in Walton also referred to the judgment of Gaudron J in Jago which stressed that the power of a court "to control its own process and proceedings is such that its exercise is not restricted to confined and closed categories, but may be exercised as and when the administration of justice demands"[22] and to her Honour's additional comment:[23]

"that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand".

48 The majority in Walton then went on to deal with the application of these principles to the Medical Tribunal and said:[24]

"In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective - i.e. protective of the public - in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds...

...

... The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process[25] similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners."

49 In relation to the question whether a proceeding should be stayed as an abuse of process because it can be seen to be "foredoomed to fail", the members of the appeal division of this Court had something to say in R v Smith[26]. Brooking J as he then was said:[27]

"It is not a use of the process of the courts for a purpose alien to the administration of justice under law (Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 520) to make an unsuccessful claim if all that can be said is that the claim failed because the plaintiff or prosecution did not make out a case to answer. Process is not abused merely because it is employed without success. The very function of the courts is to hear and determine claims, sound and unsound, and to filter out those which are unsound, not (save in extreme cases, where a stay or other summary order may be appropriate) by declining to deal with them in the usual way, but by hearing and determining them. ... Time and again it has been said that it is only in exceptional circumstances that a proceeding, civil or criminal, will be stayed on the ground that it constitutes an abuse of process..."

"I know of no previous case, reported or unreported, in which it has even been argued by an applicant, let alone judicially determined, that a civil or criminal proceeding should be stayed as an abuse of process because it will not be possible for the plaintiff or prosecution to prove some fact essential to the judgment sought."

51 In the same case, Byrne J said:[29]

"To my mind, however, the no case test simpliciter is not the appropriate one for a case such as the present. It is evident from the expressions used in the passages quoted above from Walton v Gardiner that, for a successful stay application of the kind before us, the case must be not merely incapable of success but 'clearly foredoomed to fail'; or in the words of Brennan J the vice is the institution of proceedings 'which will inevitably and manifestly fail'. ... It is sufficient that I refer to the dictum of Dixon J in Cox v Journeaux (No.2) at 720;

'The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff ...'"

52 In Williams v Spautz[30] the High Court upheld a stay of prosecutions in circumstances where the abuse of process was constituted by bringing the proceedings for a collateral purpose namely not to prosecute them to a conclusion but to use them to obtain some advantage unrelated to the purpose of the proceedings.

53 I think that it was common ground, and in any event the cases establish, that abuse of process in this context comprehends any proceeding that is being used in a way that is manifestly unjust, oppressive or unfair to a party to the proceeding, or would otherwise bring the administration of justice into disrepute among right-thinking people. The categories of such cases are not closed although they include cases where the proceeding is foredoomed to fail or is being used for an improper purpose. In the case of disciplinary proceedings, it is necessary for a court in considering whether there is any abuse of process to take into account the important factor that a disciplinary proceeding is protective of the public.

54 It seems to me that some of the considerations relied upon by the plaintiff cannot, of themselves, constitute an abuse of process as so understood. One such consideration is the burden imposed upon the plaintiff by a further disciplinary hearing in addition to the already lengthy, onerous and costly proceedings before the Tribunal to date. That possible consequence ought to have been foreseeable by the parties as a result of the procedure in which they acquiesced. The Tribunal has before it a proper charge, or at least a charge capable of reframing as a proper charge arguably without any prejudice to the plaintiff by such amendment. The Tribunal is obliged to deal with that charge. The opinion of a Judge of this Court as to whether any useful purpose is served, in all the circumstances, by proceeding with the remaining charge cannot determine the question of abuse of process given that, apart from anything else, the seriousness of the charge can only be assessed by the Tribunal after hearing and considering all of the evidence. At first blush it would appear that, even assuming (contrary to the plaintiff's position) that a misleading statement was made to the Federal Court as alleged, such statement was never going to mislead the Court because the opposing party would immediately point (as it did) to the alleged true position. That would seem to be why counsel for the Bar accepted before me that the plaintiff's conduct might well be characterised as "bizarre" or "stupid".[31] Thus, again at first blush, it might appear that little useful purpose is served by proceeding with charge 21 even if it is a distinct charge, given the lengthy proceeding that has already occurred resulting in a reprimand of the plaintiff for her unsatisfactory conduct in the Federal Magistrates Court proceeding. It seems strongly arguable that the purpose of protecting the public has already been achieved. The foregoing considerations of themselves do not, however, it seems to me, establish a case of oppression or injustice or tend to bring the administration of justice into disrepute.

55 It seems to me that the question whether there is any abuse of process involved turns upon a careful analysis of what the Bar did at, and said to, the Tribunal on 21 August 2006. Mr Scerri for the Bar said to the Tribunal on that occasion that the Bar "doesn't wish to seek a finding of misconduct" and then attempted to amend charge 21 to an unsatisfactory conduct charge. In the course of the application to so amend charge 21 and in answer to a question from the Vice-President, Mr Scerri said that "[the] Bar does not propose to proceed with the charge of misconduct under charge 21" and that "[if] the charge is not amended and we lead no evidence the position is the same as with the other charges" to which latter statement the Vice-President said "Dismissed" and Mr Scerri replied "Yes exactly ...". Later on, Mr Scerri said that if the proposed amendment was unacceptable "we'll press on with the charge on the basis that our case is unsatisfactory conduct relying upon s.161". After the Tribunal's ruling refusing the amendment, Mr Scerri said that the Bar would be saying, on charge 21, that the evidence could support a finding of unsatisfactory conduct.

56 It is apparent from what Mr Scerri said to the Tribunal that the statements made on behalf of the Bar were not simply subjective statements of opinion or belief as to the possible result of a hearing of charge 21. The Bar was taking a definite position that it was not proceeding with the charge of misconduct and would be pressing only for a finding of unsatisfactory conduct. Indeed Mr Scerri canvassed the prospect that the Bar would lead no evidence if the amendment were refused. However when the amendment was refused he said that the Bar would proceed with charge 21 but "our case is unsatisfactory conduct".

57 Accordingly the position of the Bar before the Tribunal was, before the hearing of charge 21 had commenced, that the Bar had and would advance no case of misconduct against the plaintiff. Yet that is the very nature of the charge that the Bar was seeking to prosecute (putting aside the defectiveness issue).

58 In my opinion the Bar's stance before the Tribunal makes all the difference in this case. It would bring the administration of justice into disrepute to permit the Bar to prosecute a charge of misconduct while at the same time saying the opposite, namely, that it was not advancing a case of misconduct or seeking a finding of misconduct. It is an entirely different position to that which might have arisen had the charge been proceeded with and, after all the evidence was in, the Bar conceded that the evidence supported only a lesser charge. The use of a misconduct charge simply to obtain a finding of a lesser charge when the case for misconduct is completely disavowed before the hearing commences is, I think, a misuse of the statutory procedure and, indeed, as the plaintiff submitted, contrary to the spirit of the Act, given the requirement that the Bar be satisfied when bringing the charge that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of misconduct. If the Bar has reached the view, as it has, that a case of misconduct cannot be made out and it does not seek to do so, such a charge ought not as a matter of justice and fairness be heard.

59 In these circumstances, the considerations referred to earlier[32] which I said would not of themselves give rise to a case of abuse of process do support the conclusion that the proceeding in this case is being used in a manner that is both manifestly oppressive and unjust to the plaintiff and also serves no useful purpose as regards protection of the public or, for that matter, the disciplining of the plaintiff.

60 For the foregoing reasons it will be ordered, on the grounds of abuse of process, that the further prosecution and hearing of charge 21 before the Tribunal be permanently stayed.

[1] As a result of transitional provisions in the Legal Profession Act 2004 (Vic), VCAT in effect "took over" the hearing of certain from the Legal Profession Tribunal.

[2] The Legal Ombudsman, an RPA or the Legal Practice Board.

[3] See s.157(1) of the Act.

[4] See s.158 of the Act.

[5] See s.167 and s.169(1)(a) of the Act.

[6] A firm of solicitors formerly acting for Hubbard.

[7] See Reid v Hubbard [2003] FMCA 407.

[8] (Unreported, Supreme Court of Victoria, JD Philips J, 9 December 1994).

[9] Referring to the plaintiff and to her junior counsel.

[10] Charges 7, 9, 11 and 14.

[11] See Reid v Hubbard [2003] FCA 1424.

[12] The Tribunal subsequently ordered on 20 November 2006 that the plaintiff should pay 10% of the costs of the Bar of and incidental to the proceeding up to and including 30 October 2006.

[13] The Bar submitted that, if a plaintiff sought an order in the nature of prohibition pursuant to O 56 of the Rules of the Supreme Court on grounds that involved an error of law that could be relied upon in an appeal to the Court of Appeal under s.170(1) of the Act against an order of the Tribunal, prima facie that application should be dismissed in the Court's discretion - see Kuek v Victoria Legal Aid [2001] VSCA 80; (2001) 3 VR 289, 293-5 per Phillips JA; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue for the State of Victoria [2001] HCA 49; (2001) 207 CLR 72, 79 per Gaudron, Gummow, Hayne and Callinan JJ. However, this issue does not appear to arise in relation to the particular arguments raised by the plaintiff.

[14] See s.85(1) of the Constitution Act 1975 (Vic).

[15] Namely those referred to in ss.151(3), 158(1) and 167 of the Act.

[16] (1993) 177 CLR 378.

[17] Supreme Court Act 1970 (NSW) s.23.

[18] (1993) 177 CLR 378, 392-393.

[19] (1993) 177 CLR 378, 393-394.

[20] [1989] HCA 46; (1989) 168 CLR 23.

[21] [1980] 1 NZLR 464, 481.

[22] [1989] HCA 46; (1989) 168 CLR 23, 74.

[23] [1989] HCA 46; (1989) 168 CLR 23, 74.

[24] (1993) 177 CLR 378, 395-6.

[25] As to the weighing process involved in relation to an application to stay disciplinary proceedings, see XD v Johnson (No.2) [2002] VSC 351; (2002) 6 VR 381, 388-389 per Bongiorno J.

[26] [1995] VicRp 2; [1995] 1 VR 10.

[27] [1995] VicRp 2; [1995] 1 VR 10, 14.

[28] [1995] VicRp 2; [1995] 1 VR 10, 15.

[29] [1995] VicRp 2; [1995] 1 VR 10, 28.

[30] [1992] HCA 34; (1992) 174 CLR 509.

[31] Of course I do not decide whether that characterisation is correct.

[32] See para [54].