For the reasons above, I have found Mr Gullquist guilty of professional misconduct within the meaning of s 4.4.3(1)(a) of the Act in that he has engaged in conduct that involved a substantial failure to reach or maintain a reasonable standard of competence and diligence in that:
in respect of the 18 March letter, he breached rule 18.6 of the Rules;
in respect of the 23 March letter, he breached rule 18.5 and rule 18.6 of the Rules, and further the letter was inappropriate;
in respect of the 3 April letter he breached rule 18.6 of the Rules, and further such breach was reckless;
in respect of the 7 April email, he breached rule 18.5 and rule 18.6 of the Rules, and further such breaches were reckless; and
in respect of the 10 April email (and the second version of the 7 April 2014 letter) (referred to in these reasons as the 9 April letter), he has breached rule 18.5 and 18.6 of the Rules, and further such breaches were reckless.
The matter will proceed to a hearing on determinations on a date to be fixed.
[2]
[1] The correspondence included letters sent by post and email, and one email which attached a letter.
[3]
[2] I refer in these reasons to 'the 9 April letter' for convenience. As discussed at the hearing, it is the communication described in Charge 1(5) and Charge 2(5) as 'the 10 April 2014 email and the second version of the 7 April letter', sent on 9 April to the court with a request that it be passed on the Magistrate, which it appears was done on 10 April.
[21] Witness statement of Jacinta Haywood, paragraph 8, referring to statement by Mr Gullquist about what he was told by the CMO, which is set out in paragraph 5 of the witness statement.
[20]
[23] As requested by Counsel on behalf of Mr Gullquist, I did not take into account a similar statement in Mr Gullquist's outline of submissions to the Tribunal, which I raised with the parties at the hearing, on the basis that it was not relied upon by the Commissioner.
[26]Council of the Law Society of New South Wales v Webb[2013] NSWCA 423, [16]. I note that it is not necessary to find, for the purposes of s 4.4.3(1)(a), that the conduct would justify a finding that the practitioner is not a fit and proper person to engage in legal practice, which is separately set out in s 4.4.3(b).
Victorian Legal Services Commissioner v Gullquist (Legal Practice) [2017] VCAT 6 (3 January 2017)
The charges include the allegation that Mr Gullquist deliberately or recklessly breached the Rules. This requires proof that both the conduct and the contravention were deliberate or reckless: Victorian Bar Incorporated v Molyneux (Legal Practice)[2006] VCAT 1417, [124] (Molyneux), referring to Aaron Zaitman v Law Institute of Victoria, Supreme Court of Victoria, JD Phillips J, delivered 9 December 2004 (unreported) (Zaitman).
These are also subjective elements. In a case such as this where the respondent practitioner does not give evidence, any finding made as to the practitioner's state of mind must be based on an inference drawn from the evidence.
As submitted by Counsel for Mr Gullquist, the High Court decision of Bradshaw v McEwans[8] is authority for the proposition that in civil proceedings, where the circumstances appearing in the evidence give rise to conflicting inferences of equal degrees of probability, the decision-maker may not choose one over the other but an inference can be drawn against a defendant if it is the more probable inference. It need not be the only inference that may be drawn, but it must be the more probable:
In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley[1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.[9]
Counsel referred to a number of cases in submissions, including:
the Tribunal's decision in Molyneux,[16] which discusses the distinction between deliberate, reckless and other less serious breaches of a practitioner's statutory obligations;
Zaitman, an unreported Supreme Court decision of JD Phillips J, 9 December 2004,[17] referred to in Molyneux; and
Giudice v Legal Profession Complaints Committee[2014] WASCA 115 (Giudice), which concerned the meaning of recklessness in the context of making statements that were false.
The following statements from those cases set out the relevant principles and provide guidance in this case:
A contravention should be held to be wilful in the case of a practitioner who 'knows that it is a contravention of the Act (or the Rules or the Regulations, as the case may be) for [him] to do or fail to do some particular thing, intentionally to do that thing or to fail or omit to do it'. (Zaitman, 51; Molyneux, [124])
[T]he word 'reckless' should be taken as requiring no more than the solicitor to be shown to have acted not in the knowledge just described but with reckless indifference, not caring whether what he does, or fails or omits to do (as the case may be) is a contravention of the Act, the Rules or the Regulations. The solicitor must, I think have appreciated the possibility that his conduct (whether it be act or omission) might amount to a breach of the Act, the rules or regulations; for otherwise it is difficult to say that he acted with reckless indifference. To put it another way, the solicitor must, I think, be shown to have known of the risk and intended to take that risk. (Zaitman, 51; Molyneux, [124])
It is implicit in what I have just said, that while the solicitor, who does not knowingly act in contravention, must be shown to have foreseen that what he has done might amount to a reckless contravention, there is no need to go further and establish that the solicitor foresaw the "probable"; it is enough that he foresaw it as "possible" and then went ahead without checking... [I]t will be enough if the solicitor...is shown to be aware of the possibility of what he was doing or failing to do might be a contravention and then to have proceeded with reckless indifference as to whether it was so or not. ( 52)
I agree with the submission on behalf of the Commissioner that where a single charge of professional misconduct is supported by factual particulars alleging a series of acts, each matter does not have to be proven and found in itself to be professional misconduct. Rather the approach, on the authority of Woods v Legal Ombudsman[2004] VSCA 249, [45]-[55], is to consider whether each of the matters has been made out and then to determine whether what has been proven constitutes professional misconduct or something less.
I have considered the submissions made on behalf of Mr Gullquist that the conduct should be categorised as no more than unsatisfactory professional conduct. I do not agree.
I agree with the submission on behalf of Mr Gullquist that, as stated in Council of the Law Society of New South Wales v Webb,[24] 'substantial' directs attention to the nature and consequences of the failure, which may be sufficiently serious to raise questions as to the lawyer's competence and diligence; whereas 'consistent' refers to ongoing or persisting acts of failing on different occasions, or in a number of transactions,[25] to reach or maintain the required standard.
Of itself, the 23 March letter is sufficiently serious or important to call into question Mr Gullquist's fitness and competence to practise.[26] It represents, in my view, an astonishing failure to reach the expected standard.
As to the consequences, I do not agree with the submission that the consequences were minor, limited to some annoyance on the part of Mr Gullquist's opponents and a delay of a few days in them becoming aware that Mr Gullquist had made written submissions, but otherwise no deleterious effects.
The consequences were clearly more serious than annoyance and delay. The 23 March letter of itself put the Magistrate in an extremely difficult and embarrassing situation.
Further, by the 23 March letter, Mr Gullquist obtained an improper advantage over his opponents - he obtained a reconsideration by the Magistrate of the ruling made at the hearing without his opponent knowing that Mr Gullquist sought a reconsideration or having the opportunity to argue against it, let alone the benefit of knowing what submissions had been made to that end.
Mr Gullquist's failure to send Mr Simons a copy of his 3 April letter meant that Mr Simons had no way of knowing what might have been said in that letter.
(1938) 60 CLR 336
(1992) 67 ALJR 170
(1951) 217 ALR 1
(1997) 1 VR 127
Zaitman,
What J D Phillips meant in other places in his judgement, by "reckless indifference" should be seen in the light of [the preceding] passage. It is not confined to a situation where the practitioner is cavalier about his or her obligations under the Rules. It extends to a situation where the warning signs are visible but the practitioner does not check... (Molyneux, [125] referring to final submissions from the Bar. I agree that this is an appropriate analysis of his Honour's approach)
If a solicitor, having addressed the possibility of a contravention decides bona fide (albeit on what turns out to have been a mistaken view of the facts) that which he is doing or is about to do does not amount to a contravention, then such contravention as follows cannot in the circumstances be said to be 'wilful' - but nor can it be called reckless, on the basis of the foregoing. (Zaitman, 53; Molyneux, [132])
It would seem to follow that the above passage makes it clear that in order to establish recklessness, it is necessary to show that counsel appreciated the risk that their conduct in a particular instance might possibly amount to a breach of the rule, and noting that risk, proceeded, intending to take that risk. In circumstances where counsel holds a bona fide belief that their conduct is not amount to a contravention of the rule, it cannot be reckless for counsel to proceed. (Molyneux [133] referring to the preceding passage)
I agree with the Chief Justice, for the reasons he gives, that the meaning of 'reckless' will be coloured by the context in which that term is used. I also agree with the Chief Justice's reasons at [44] that the context of the allegation of recklessness, involving a complaint against a legal practitioner,[18] was an allegation of subjective recklessness in the sense of the practitioner being indifferent to the truth of the statement or 'not caring in the [practitioner's] own heart and conscience whether it was true or false'.[19] As the High Court of Australia, quoting from various judgments in the House of Lords, recently expressed the common law concept of recklessness in criminal law, it involves 'at least indifference' or 'not caring'.[20] This was also the sense in which the case was run. The case was opened on the basis that the practitioner knew that the statement was false or was 'reckless as to whether [the statement] was true'. (Giudice, [130] (Edelman JA))
I have set out the statements at some length because this is a case where I have no direct evidence from Mr Gullquist about his state of mind at the time, inferences are therefore required to be drawn if the allegations as to state of mind are to be proved, and there are some relatively unusual features in this case which required careful consideration in the light of the principles.
The consequences of Mr Gullquist's failure to send Mr Simons a copy of the 7 April letter were even more serious. In that letter Mr Gullquist, without being given any leave to do so, made further submissions and asserted that the plaintiff's submissions contained 'bare falsehoods'. For Mr Gullquist to have denied his opponents a copy of that letter, and for them to have had to wait until they were able to inspect the court file on 10 April to see it is, in simple terms, outrageous.
I disagree with the submission in behalf of Mr Gullquist that the conduct cannot be considered 'substantial' because it only related to one court proceeding, one hearing and a short time span. The nature and consequences of it bring it well within that definition of professional misconduct.
As Counsel for Mr Gullquist rightly conceded, the particular rules are among the more important of the Professional Conduct Rules. Even if they were not, the combination of the breaches of the rules and the other findings in relation to the 23 March letter constitute a substantial failure to reach or maintain a reasonable standard of competence and diligence.
I am satisfied that the conduct constitutes a substantial failure to reach or maintain a reasonable standard of competence and diligence.
Professional misconduct under s 4.4.3(1)(a) is conduct that involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. 'Substantial' and 'consistent' are therefore in the alternative.
Having found that the conduct represents a substantial failure to reach the required standard, it is not necessary to determine whether the conduct also represents a consistent failure to do so.
For the sake of completeness, however, while I agree with the submission of the Commissioner that 'consistent' does not require repeated acts in a variety of situations,[27] and it is sufficient if there are ongoing or persisting acts of failing on different occasions to reach or maintain the required standard, I would not be persuaded that the conduct here represents a 'consistent' failure to reach or maintain the required standard. Even though Mr Gullquist persisted in and repeated his breach of the Rules in the proceeding in question, my reading of the cases referred to in Webb is that repetition on other unrelated occasions, such as in other proceedings, might be required. I do not, in any event, have to decide the point.