Yianoulatos v Victoria Legal Aid [1998] VSC 163

5. The panel is a list of practitioners from which an assisted person or Victoria Legal Aid ("VLA") itself may select a private practitioner to act for that assisted person, and the panel is set up pursuant to section 30 of the Act.

8. On 3 December 1997, VLA notified the plaintiffs that it proposed to remove them from the panel for a total period of three years on a number of grounds relating to their conduct in the course of three separate criminal law matters. Those matters involved Derek Bowhay, Paul Haseloff and Emmanuel Chatzidimitrou respectively. The plaintiffs requested a hearing and Mr Kiddle was appointed to hear and determine the matter as an independent reviewer.

11. VLA served written contentions and various supporting documents and witness statements, and the plaintiffs provided a written response. The hearing was conducted before Mr Kiddle. Witnesses were called and cross-examined including the practitioner, and Mr Kiddle heard submissions from counsel for VLA and the plaintiffs. Tapes of that hearing have been transcribed. Mr Kiddle provided written reasons for his determination.

14. Section 30(8) of the Act empowers VLA to exclude or remove, for a specified period or otherwise from a referral panel, the name of any sole practitioner or firm; and under s.30(9), VLA has power, where it does remove the name of a practitioner to remove the name of his or her employer who is also a practitioner and that is what has happened in this case.

17. The scheme of the section is that before making any exclusion or removal, the VLA must give written notice to the practitioner or the firm or whoever is affected setting out the reasons for the proposed exclusion or removal, and afford the practitioner a reasonable opportunity to be heard and show cause why the exclusion or removal should not be made. That is in s.30(10).

20. Section 30(12) provides that if a person wishes to be heard, the panel chairperson must appoint an independent reviewer to hear and determine the matter; in this case, Mr Kiddle, who was the panel chairperson appointed himself as the independent reviewer. Section 30(14) provides that after hearing any matter under this section, the independent reviewer must advise VLA of his or her determination, and s.30(15) requires VLA to give notice of the determination of VLA to the practitioner or firm concerned.

23. Section 30(16) requires the reviewer to keep records of his or her determinations and proceedings under the section. In my opinion, that which the reviewer is empowered to determine under these provisions is the question of exclusion or removal, namely, the whole question. It is not simply a matter of determining whether the practitioner has shown cause why the exclusion or removal should not be made, but once it is referred to the reviewer, I think, upon a proper construction of these provisions, that it is for the reviewer to decide by his determination whether the practitioner should be excluded or removed and, if so, for what period.

26. Although Mr Kiddle, in his reasons for determination, has used language which in some parts is consistent with him making the determination and which in other parts is consistent with him simply deciding that cause has not been shown and referring it back to the VLA to make its decision, I think the better reading of his reasons and determination is that in substance he made the decision himself, and in that regard he certainly specified periods of removal which were different from those suggested by or proposed by the VLA, both in its notice and subsequently (as I will refer to in a moment).

29. Mr Kiddle specified a period of removal of four years for the practitioner and two years for the principal and the firm. I think that was correct in that the section intends that the reviewer should make his own decision. Support for that may be derived from subsection (15) which provides for the VLA to give notice of the determination to the practitioner concerned. Admittedly, the language could have been clearer, but I think that that is the intent of the provisions. It calls for a determination not a recommendation.

32. Section 30(18) provides that:

"A sole practitioner, firm, incorporated practitioner, partner, director or employee aggrieved by any exclusion or removal, may within 28 days after the receipt of notice of the exclusion or removal, apply to the Supreme Court for an order setting aside the exclusion or removal and the Supreme Court may, as it thinks fit, grant the application subject to conditions or unconditionally or postpone the making of an order or dismiss the application."

36. The parties were agreed that the nature of the power thereby given to the Supreme Court was to conduct a hearing de novo. Having regard to the parties' agreement as to that, I will not canvass the authorities including those under the Medical Practitioners Act and like legislation where this kind of problem has been extensively discussed. Different language is used in different statutes. Many of them speak of an appeal, and some of them of an appeal by way of rehearing, and the language here is different, but as the parties have agreed that it is a hearing de novo, I am not disposed to disagree with that. The parties also agreed that as there was a transcript of the tapes which had been used before Mr Kiddle, the reviewer, that the evidence would not be re-called before the court, and I think that reliance on the transcript is a sensible course and one which assists the speedy conduct of the application and is appropriate and permissible. There are many precedents for that as well.

39. There was debate, however, about what weight should be given to the reviewer's reasons and determination. I think that inevitably real weight has to be given to them. The panel of independent reviewers is set up under s.18 of the Act, and the Attorney-General is there empowered to appoint a panel, and the eligibility criterion, apart from the person not being a director or an officer or an employee of VLA, is that he or she is a person with knowledge or experience that, in the opinion of the Attorney-General, is relevant to the functions of an independent reviewer.

42. I should assume that any member of the panel does have that knowledge and experience relevant to the statutory functions, and those functions include the question of when it is appropriate to remove or exclude someone from a panel. The knowledge and experience would thus involve an appreciation of what are the appropriate standards of conduct from a practitioner which are to be expected and which should be applied when determining whether somebody should be excluded or removed from a panel.

45. So I would give due weight to what Mr Kiddle has decided. But putting aside the specified period of exclusion or removal, I not only give due weight to it, but I tend to agree, in broad terms, with what he has said, without adopting necessarily the language he has used or every comment that he made. The trend of his decision and the approach to it, I do not find to be out of kilter with his functions or one which takes into account inappropriate considerations. I do not think that he indulged, in the light of the evidence before him, in an unfair or unreasonable approach to the matter.

48. Now, Mr Kiddle, in his reasons for determination, which were quite lengthy, referred to the fact that the particulars and complaints in relation to Chatzidimitrou had been abandoned, and he went on to deal with the remaining matters. I think it is fair to say that he did not rely on the matter of Bowhay except indirectly as showing a pattern of non-cooperation with VLA, and to the extent that he relied upon the Bowhay matter, to show that, I think he was right in doing so.

51. In essence, the complaint about Bowhay was that there was at one point a failure to supply material to VLA itself as requested in various letters. That material included a hand up brief for a committal and various other necessary materials, and then there was a further complaint in relation to his withholding of material and failure to supply it to Bowhay himself until the last minute, thereby creating potential prejudice for him, that is Bowhay, and inconvenience to the parties and to the magistrate hearing the committal. But perhaps in the circumstances little more regard should be had to the Bowhay matter.

54. The matter which is central to Mr Kiddle's findings is the Haseloff matter in which VLA alleged that:

"You [...] failed to respond to VLA's written request dated 7 November, 1996 to provide a full report so that a decision could be made on a request by Mr Haseloff for legal assistance to be provided by another firm. You failed to provide VLA with a copy of Mr Haseloff's written confirmation that your firm was to continue to represent him. You acted unprofessionally in responding to a telephone call on 29 January 1997 from a Senior Grants Officer seeking information which would enable VLA to make a decision on your client's request for assistance for a trial. You failed to provide a report within 14 days, as requested by VLA by letter dated 10 December 1996, which would enable VLA to determine whether to extend assistance for a plea or a trial. Your request for assistance for a trial on the afternoon before a Mention in the Supreme Court and failure to provide information in support of that request necessitated a Senior Grants officer having to attend court to explain the situation."

58. The substance of all of that was not denied by Mr James Yianoulatos, and there is really no justification for his conduct. The only excuse offered by him was that there was a failure to appreciate the changing culture in the VLA and the new position attending under the legislation.

61. Mr Kiddle provided extensive reasons, and in his findings at page 19, he sets out some standards including those relating to the necessity to cooperate with the VLA in order that it might perform its statutory functions including those of providing legal aid economically and efficiently and effectively. He found at page 22 of his findings that the practitioner had failed to respond at all or adequately to requests properly made to him by VLA for information within his knowledge or to which he had access relevant to the provision of legal assistance to Haseloff or concerning the progress of his matter to VLA as required by a number of letters which they had sent over a number of months, and pursuant to the terms of the Legal Aid handbook. I agree with his findings.

64. Mr Kiddle found that those failures were not of a standard which VLA was entitled to expect of practitioners on a referral panel, and not only that, they did not fulfill the requirements of section 31(3) of the Act which requires a private practitioner to disclose to VLA such information that is within the practitioner's knowledge or to which he has access relevant to the provision of services by way of legal assistance to that person or concerning the progress and disposal of that matter as is considered necessary. I agree.

67. Mr Kiddle, after referring to a number of other matters which I will not set out, but which are contained in his reasons, determined that there should be a removal from the panel of the principal and the practitioner for the period of two years and four years respectively. The findings in essence involve a lack of cooperation with VLA and serious obstruction of its ability to perform its statutory obligations. There is also an element of conduct at least potentially prejudicial to the client's interests.

70. I think that, having looked at the whole of the matter including the transcript of James Yianoulatos' evidence and the passages to which counsel referred me and in particular having looked at the matters in mitigation which were handed up by Mr Tracey and which were referred to in argument, Mr Kiddle was justified, and that the court would be justified, in concluding (and I so conclude) that it was appropriate that the plaintiffs be removed from the panel for a specified period.

73. I think, however, and this is very much a matter of impression, that the period specified by Mr Kiddle was excessive. It is not suggested that there was any other prior conduct by the plaintiff, the subject of complaint by VLA, or for that matter, any subsequent conduct, and I think I should take into account on this rehearing, the fact that there is no further complaint about the firm or the practitioner since the events that I have referred to.

76. It being a rehearing, I will have to reach my own view about it, and looking at the conduct as a whole, while I think that it is entirely appropriate that the plaintiffs be removed from the panel for a period, I think that that period should be a lesser period. I take into account that VLA itself contended in its proposed notice of removal that the aggregate period to be applied should be three years at a time when the complaints related to three matters, and that in the end, Mr Hanks of counsel for VLA was submitting to Mr Kiddle that the period for removal in relation to Haseloff (which is ultimately the only matter directly relied on) should be one year. That is in my view appropriate and sufficient protection of the interests of VLA and of the public, which must be the prime consideration.

79. Due regard I think should be had to what VLA itself considers to be the appropriate period of removal, as Mr Tracey QC, who appeared for the plaintiffs, himself submitted. I think that something of the order of one year is appropriate, and I do not see any point in the light of Mr Kiddle's findings in making any distinction between the firm and the principal and the practitioner for this shorter period. I think that they should all be removed from the panel for the same period, and what I would propose to do, having regard to what I perceive is some difficulty in the interpretation of s.30(18), is to set aside the removal on conditions.

82. I should say that there was some debate before me about what powers the Supreme Court had under s.30(18) and I do not propose to resolve that debate - in particular whether there was power to vary determinations as opposed to either simply setting them aside or dismissing the application. The words used in the section are ill adapted to give the court a clear power of variation. The drafting is unusual. It may be or may not be the case that the words "subject to conditions" include a power to vary, but I think that the way to achieve that result is to impose a condition on the setting aside of the removal, so I would order that the removal of the plaintiffs from the panel be set aside conditional on the plaintiffs accepting in writing their removal from the panel by the VLA for a period expiring on 1 November 1999 (in default, application dismissed).

85. I will hear further submissions if counsel think that that approach is unworkable, or that there is something wrong with my quick drafting of the orders, but that is the order in substance that I propose to make.