Quinn v Law Institute of Victoria Ltd [2005] VSCA 326

Court of Appeal (Vic)|2005-12-16|Before: MAXWELL, P. and BUCHANAN, J.A.

PRACTICE AND PROCEDURE - Application for stay of orders of professional disciplinary tribunal pending hearing and determination of appeal - Stay granted.

1 This is an application by summons filed 13 December 2005 for a stay of orders of the Legal Profession Tribunal pending the hearing and determination of Mr Quinn's appeal to this Court against those orders. The principles governing stay applications in proceedings of this kind were clearly elucidated by the former President, Winneke, P. (with whom Chernov, J.A. agreed) in Woods v. The Legal Ombudsman:

"Legal practitioners who seek a stay of orders made by their disciplinary tribunal while an appeal is pending or for any other reason have the onus of persuading the Court that such a stay should be granted. There are a number of balancing factors which will bear upon the Court's decision as to whether such an indulgence should be afforded. The first is that disciplinary proceedings against those who hold themselves out to the public as fit to practise, in this case the solicitors, are sui generis. The discipline imposed, while punitive in its application to the practitioners involved, is very largely protective of the public interest. Other matters which this Court will take into account will include the seriousness of the conduct which has led to the tribunal's decision and the prospects which the instituted appeal has of succeeding."

2 In our view, this is an appropriate case for the grant of a stay. Our reasons are as follows. As counsel for Mr Quinn have submitted, unless a stay is granted a successful appeal will effectively be rendered nugatory. The appeal is unlikely to be heard before mid-2006 at the earliest, by which time half of the suspension period will have been served. Moreover, by that time it would very likely be impossible to restore Mr Quinn to his former position if he were to succeed in the appeal. This consideration would carry less weight if it appeared that the prospect of success on the appeal were slight. In our view, however, the grounds set out in the notice of appeal are clearly arguable.

3 As to the central concern that the public be protected, we regard it as significant that the Law Institute did not submit to the Tribunal that the suspension of the practitioner was necessary for the protection of the public. According to the reasons of the Tribunal, the Institute left the issue of penalty entirely to the discretion of the Tribunal. It seems to us to be unfortunate that this occurred. We were informed by senior counsel for the Institute that the Institute agreed to adopt this position in exchange for Mr Quinn's agreement to plead guilty to the charges. We say nothing about that particular circumstance. We do say, however, that a regulator in the position of the Institute should ordinarily be in a position to assist the disciplinary tribunal by identifying the range of alternative penalties available and by making submissions as to what an appropriate penalty would be, and for what reasons.

4 In its submissions on the present application, the Institute argues that the protection of the public does require Mr Quinn's suspension from practice or, to state the converse, that the grant of a stay would be inconsistent with the protection of the public. That being so, it is difficult to understand why the Institute took no steps to prevent Mr Quinn from practising as soon as the misconduct the subject of these charges had been identified. It is apparent from the court documents in proceeding No. 5013 of 2005 (which the Institute brought under s.249 of the Legal Practice Act 1996) that the Institute has been aware of the misconduct since no later than 11 March 2005, that being the date of the Institute's summons seeking relief in that proceeding. We infer, of course, that the Institute's awareness crystallised some time before those court documents were drawn up. The undertakings given to the Court by Mr Quinn and his company in that proceeding dealt with the trust account irregularities, as senior counsel for the Institute told the Tribunal.

5 What remains wholly unexplained is the failure of the Institute to take any action to protect the public against a repetition of the over-charging the subject of the other main charge against Mr Quinn. We note in this regard that s.38(6) of the 1996 Act, which applied at all relevant times, gave the Institute power to suspend Mr Quinn's practising certificate with effect immediately, if it were satisfied that such immediate suspension was necessary for the protection of his clients or of members of the public generally. Action of that kind would not have prevented the Institute from the proceeding to lay the charges relating to the misconduct.

6 In relation to penalty, we regard it as significant that Mr Quinn was a first time offender and that the Institute did not allege any lack of probity on his part. The Institute accepted that Mr Quinn had acted honestly, and did not allege that the time recorded was concocted. Accordingly, senior counsel for the Institute very properly withdrew the submission, initially made in this Court, that this was conduct of the most serious kind. It plainly was not, serious though it was. In the circumstances, it seems to us to be far from self-evident that the misconduct, to which Mr Quinn had of course pleaded guilty, was, as the Tribunal put it, "so grave that the only course open in all the circumstances was to order that the legal practitioner's practising certificate be suspended for a period of twelve months".

7 Senior counsel for Mr Quinn has drawn our attention to the transcript of the hearing before the Tribunal, which records that the Tribunal enquired of senior counsel for the Institute what other course might be open to the Tribunal if it were to decide not to suspend Mr Quinn's practising certificate. Senior counsel first pointed out to the Tribunal that the conduct represented by charge 3 (the misapplication of trust money without the rendering of an account to the client) had been dealt with by the undertaking given to Hollingworth, J. on 19 April 2005, to which we have already referred. The protection which a continuing undertaking affords to the public is self-evident.

8 As to the over-charging, senior counsel told the Tribunal that it appeared to the Institute that the over-charging might "be as a result of the practitioner being overly zealous". Senior counsel suggested to the Tribunal that, if the practising certificate were not to be interfered with, the Tribunal might wish to impose a regime whereby bills of costs above a certain amount were independently assessed. The transcript records that counsel for Mr Quinn obtained instructions to offer an undertaking that, in any matter in which the bill of costs as compiled by Mr Quinn exceeded $20,000, the bill would be independently assessed by a recognised costs consultant before the account was rendered by Mr Quinn to the client.

9 Subsequently, so the transcript records, the Chairman of the Tribunal, his Honour Judge Cullity, asked counsel for Mr Quinn whether, for the purposes of such a regime, it would be possible for Mr Quinn's bills of costs to be assessed by the Law Institute's costing service. Counsel for Mr Quinn told the Tribunal that this course would be appropriate. In the event, the Tribunal apparently decided not to pursue that course. Somewhat surprisingly, the Tribunal's reasons make no mention of that alternative course and, as a result, give no guidance either to Mr Quinn or to this Court as to why that alternative was not regarded as appropriate.

10 As the Court put to senior counsel for the Institute during the hearing of this application, the imposition of a continuing obligation of that kind would in many ways seem to afford greater protection to the public than a period of suspension, unaccompanied by any requirement for training or further education, followed by a resumption of unsupervised practice. Whatever might have been the position about the Tribunal's ability to accept undertakings, it seems not to be doubted that the Tribunal could have imposed a regime of that kind as a condition of Mr Quinn's continuing to practise.

11 Counsel for Mr Quinn have offered this Court an undertaking to the same effect. In our view it is appropriate that that undertaking be required as a condition of the grant of the stay. Not only does the giving of that undertaking ensure protection of the public, in a manner entirely consistent with the alternative submission advanced by the Institute to the Tribunal, but it will enable the parties to this appeal to observe - in the period between now and the hearing of the appeal - whether in fact such a monitoring regime is likely to achieve a better level of protection of the public than a suspension. Such a regime would, at the same time, avoid the unfortunate consequence which a suspension would seem likely to have, of effectively bringing Mr Quinn's practising career to an end.

12 Accordingly, the Court will order that there be a stay of the suspension upon the giving of the undertaking and, subject to any submissions, we would reserve the costs of the application for a stay. By agreement of Mr Quinn's counsel, the undertaking will extend to the trust account aspects, the undertaking given to Hollingworth, J. having expired.

[1] [2002] VSCA 133 (9 August 2002) at [7].

Legal Practice Act 1996

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