Styant-Browne v Legal Ombudsman [2001] VSC 164

"151. What happens after an investigation is completed? (1) After completing an investigation under this Division, the Legal Ombudsman, an RPA or the Board must deal with the matter in accordance with this section. (2) The Legal Ombudsman, an RPA or the Board must bring a charge in the Tribunal against the legal practitioner or firm the subject of the investigation if satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner or firm guilty of misconduct. (3) If the Legal Ombudsman, an RPA or the Board is satisfied that there is a reasonable likelihood that the Tribunal would find the legal practitioner or firm guilty of unsatisfactory conduct, the Legal Ombudsman, RPA or Board may - (a) bring a charge in the Tribunal against the practitioner or firm; or (b) with the consent of the practitioner or firm, reprimand or caution the practitioner or firm; or (c) take no further action against the practitioner or firm if satisfied that - (i) the practitioner or firm is generally competent and diligent; and (ii) there has been no substantiated complaint (other than the complaint that led to the investigation) about the conduct of the practitioner or firm within the last 5 years. (4) If the investigation arose from a complaint under which the complainant requested a compensation order, the Legal Ombudsman, an RPA or the Board may require the legal practitioner or firm to pay compensation to the complainant as a condition of deciding under sub-section (3) not to bring a charge against the practitioner or firm. (5) If the Legal Ombudsman, an RPA or the Board is satisfied that there is no reasonable likelihood that the Tribunal would find the legal practitioner or firm guilty of misconduct or unsatisfactory conduct, the Legal Ombudsman, RPA or Board must take no further action against the legal practitioner or firm."

"152. Notice of decision (1) If an investigation arose from a complaint - (a) in the case of a Legal Ombudsman investigation, the Legal Ombudsman - (i) must give the complainant and the RPA of which the legal practitioner or firm investigated is a regulated practitioner (or the Board, if the practitioner or firm is a regulated practitioner of the Board) written notice of his or her decision under section 151 as soon as practicable after making it, including the reasons for the decisions; and (ii) if the decision is to take no further action against the practitioner or firm, must dismiss the complaint."

19. By an originating motion filed in the Court on 19 April naming as defendants the Legal Ombudsman and Freehills, Mr. Styant-Browne and Slater & Gordon seek a declaration that the complaint made by Freehills to the Legal Ombudsman concerning Mr. Nicholas Styant-Browne and Slater & Gordon by letter dated 6 September is not a substantiated complaint within the meaning of s.151(3)(c)(ii) of the Legal Practice Act 1996 notwithstanding the Notice of Decision of the Legal Ombudsman dated 15 March 2001.

22. The plaintiffs' originating motion seeks alternative relief, however that aspect can be ignored for present purposes.

25. The case for the plaintiffs is simply this. If no finding of unsatisfactory conduct has actually been made against Mr. Styant-Browne, as is the situation in the present case, then it cannot be said that the complaint is a substantiated complaint within the meaning of s.151(3)(c)(ii). The only finding made by the Ombudsman, if it can be described as such, is a finding that in her opinion if the Legal Profession Tribunal was required to determine the matter there is a reasonable likelihood that it would find Mr. Styant-Browne guilty of unsatisfactory conduct.

28. The argument advanced on behalf of the Ombudsman is that as a matter of statutory interpretation a complaint is to be regarded as substantiated for the purpose of s.151(3)(c)(ii) whenever the Ombudsman is satisfied that there is a reasonable likelihood that the Tribunal would find the legal practitioner in question guilty of unsatisfactory conduct.

31. The Australian Concise Oxford Dictionary defines "substantiate" as meaning:

"Prove the truth of (a charge, statement, claim etc.); give good grounds for."

34. It can refer, therefore, to one or other concept depending upon the context in which the word is used.

37. If one has regard to the wording of s.151(3)(c)(ii) in my opinion the words in parenthesis in the sub-section namely "(other than the complaint that led to the investigation)" clearly indicate that the intention of the Legislature was that a complaint made to the Legal Ombudsman was to be regarded as a substantiated complaint once the Ombudsman was satisfied that there was a reasonable likelihood that the Legal Profession Tribunal would find the legal practitioner guilty.

40. If that is not the case - what is the point of including the parenthetical qualification in the sub-section.

43. Further light is shed upon the matter by sub-section (4) of the section.

46. The sub-section provides that if the investigation arose from a complaint under which the complainant requested a compensation order the Legal Ombudsman ... may require the legal practitioner or firm to pay compensation to the complainant as a condition of deciding under s.s.(3) not to bring a charge against the practitioner or firm.

49. It is highly unlikely that the Legislature would give the Ombudsman the power to require the payment under s.s.(4) if the complaint were not to be regarded as "substantiated".

52. It follows thereupon that in my opinion the plaintiffs are not entitled to the declaration sought.

55. I order that the plaintiffs pay the costs of the first defendant of the hearing before me on 9 May 2001 and this day.

58. I stay the order in respect of the costs pending the hearing and determination of the proceeding or further order.