Wednesday, April 26, 2017


Appeals from VCAT on the basis of Inadequate reasons Posted: 18 Apr 2017 07:40 PM PDT A while ago, my client settled an appeal to the Supreme Court from a decision of VCAT. I set out below extracts from my (sadly wasted) submissions in relation to the applicable law, so you will not have to reinvent the wheel should you suffer the misfortune of losing in an inadequately reasoned decision. A failure to give reasons is an error of law.[1] By way of example of the application of this principle, the Commissioner recently succeeded on this basis in a s. 148 inadequacy of reasons appeal against a decision of VCAT in LSC v Turner [2012] VSC 394 (esp. at [69] et seq, [77]). Seriously inadequate reasons are corrosive of public confidence in the administration of justice and ought not to be tolerated by an appeal court, since justice must not only be done but be seen to be done. This is the first public policy informing the requirement for reasons by courts and court-like tribunals. As the Supreme Court has observed: ‘To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant.’[2] That is especially so in relation to factual determinations where a right of appeal lies only on a question of law. Even more especially so in a quasi-criminal[3] prosecution with serious consequences for the practitioner in which the Commissioner carries the burden of proof as described in Briginshaw v Briginshaw. The second public policy which requires adequate reasons is facilitation of the exercise of a right to appeal (or to apply for leave). Where the path of reasoning is unstated or difficult follow it is difficult to attack on its merits, because it is unclear what the merits of the reasoning are, whether relevant considerations were ignored and whether irrelevant considerations were taken into account. Section 117 of the Victorian Civil and Administrative Tribunal Act 1998 requires the Tribunal to give reasons for any order it makes in a proceeding other than interim orders. Where there is a conflict on the evidence, and one version is accepted and the other rejected, the judge must avert to and assign reasons for that rejection: ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559, 566 at [20] per Hargreave AJA with whom Ashley and Dodds-Streeton JJA agreed.[4] Mere recitation of evidence followed by a statement of findings is insufficient to disclose a path of reasoning; indeed, it is ‘about as good as useless’: Hunter v TAC (2005) 43 MVR 143 [28], [37]. This is specifically so in relation to s. 117 according to Justice Kyrou, speaking extra-judicially.[5] In that address, his Honour said: ‘In a nutshell, adequate reasons are reasons that clearly set out the factual and legal issues for determination, the conclusions on those issues and the thought process that has been applied in reaching those conclusions.’ ‘VCAT’s reasons must be intelligible. Reasons are not intelligible if they leave the reader to wonder about the process of reasoning that has been followed’.[6] Where evidence which is not inherently improbable and is uncontradicted is not accepted, decision makers are required to give reasons for non-acceptance: Hardy v Gillette [1974] VR 392, 395-6. Decisions of VCAT have been set aside for a failure to give adequate reasons, notwithstanding the High Court’s caution against over zealous scrutiny of administrative decision makers in Minister for Immigration v Liang (1996) 185 CLR 259 and like admonitions.[7] That caution must apply less forcefully to appeals from VCAT in common law misconduct prosecutions seeking suspension of a solicitor from practice than in a small claim or a planning question in the Tribunal. The proposition that the standard of reasons required of decision makers ‘can vary markedly with the context’[5] cuts both ways: where a tribunal is called upon to determine a quasi-criminal prosecution, seeking interference with a sole lawyer director’s entitlement to practise, it must rise to the occasion. There is no reason why VCAT’s decisions in such a case, in which transcript is called for and written submissions ordered, and costs ordered against County Court scale should be of any lesser standard than those of a County Court judge, especially in light of the express obligation provided by s. 117. The trend seems to be to require better reasons from VCAT more generally than might have been demanded in the first half of the last century: Caruso v Kite [2008] VSC 207 at [32] (Kyrou J).[8] In professional conduct prosecutions in which findings of dishonesty are to be made, it is obviously important for reasons to make clear and careful findings about the state of mind of the allegedly dishonest person.[9] [1] Secretary to the Department of Treasury and Finance v Dalla-Riva (2007) 26 VAR 96, 102 at [23] per Buchanan JA with whom Ashley JA and Smith AJA agreed; Victoria v Turner [2009] VSC 66 [237]-[241]; Paul & Paul Pty Ltd v Business Licensing Authority [2010] VSC 460 (15 October 2010) [67]-[69]; E Kyrou, ‘Adequacy of Reasons’ [2010] VicJSchol 24; Secretary to the Department of Justice v Yee [2012] VSC 447 at [90] (Kyrou J). [2] Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18 (Gray J, with whom Fullager and Tadgell JJ agreed), re-stated by Rush J in Sun Alliance in Gray v Brimbank City Council [2014] VSC 13. [3] See Stirling v LSC [2013] VSCA 374 at [63] et seq. [4] They referred to Hunter v TAC [2005] VSCA 1 [21]-[22], Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 and Sun Alliance Ltd v Massoud [1989] VR 18-19. The first and third decisions were followed in a s. 148 appeal from VCAT by Rush J in Gray v Brimbank City Council [2014] VSC 13 at [37] (referring to [28] in Hunter) and [55]. Hunter was approved in Franklin was followed in Pham v Legal Services Commissioner [2015] VSC 671 (Bell J), another s. 148 appeal and on appeal by Redlich and Kaye JJA: Pham v Legal Services Commissioner [2016] VSCA 256 at [88]. Consider also Ta v Thompson [2013] VSCA 344 at [56]. [5] ‘Adequacy of Reasons’ [2010] VicJSchol 24. [3] Secretary to the Department of Justice v Yee [2012] VSC 447 (Kyrou J), citing Commissioner of State Revenue v Anderson (2004) 24 VAR 181, 191 [33] and other authorities; LSC v Turner [2012] VSC 394 at [69]. [6] Quinn v LIV (2007) VAR 1 esp at [33] et seq, [42], [46]; Burgess v McGarvie [2013] VSCA 142 at [60] et seq.; LSC v Turner [2012] VSC 394 at [69] et seq. [7] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498 [45]. [6] See also the following authorities which usefully summarise the NSW authorities: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [65], Palmer v Clarke (1989) 19 NSWLR 158 at 170 (Kirby P); Qushair v Raffoul [2009] NSWCA 110 at [52], followed in Kalloghlian v Chubb Insurance Company of Australia Ltd [2016] NSWSC 902. [8] Consider Giudice v Legal Profession Complaints Committee [2014] WASCA 115 at [46], [108]-[109] and LSC v Brereton (2011) 33 VR 126 at [68] per Tate JA with whom the other judges agreed.

Wednesday, April 8, 2015


The Australian Professional Liability Blog Legal Services Commissioner seeks to overturn privilege against penalties Posted: 07 Apr 2015 05:08 AM PDT There is an old and well established privilege, the privilege against penalties, which is a relative of the privilege against self-incrimination. It entitles solicitors facing disciplinary prosecution to stay silent throughout the proceedings until the end of the Commissioner’s case unless the Tribunal makes an order requiring provision of written grounds and an outline of argument identifying in broad terms what is in issue. And even if such an order is made, compliance will not require the foreshadowing of any evidence or the admitting or denying of any facts. The other day, a full frontal attack by the Legal Services Commissioner on the privilege in disciplinary prosecutions of solicitors did not result in it being distinguished out of existence. Though there was no contradictor in the hearing, the President of VCAT, Justice Greg Garde, gave the challenge short shrift in LSC v Spaulding [2015] VCAT 292. Since practitioners started increasingly exercising their right to stay silent after the disciplinary investigation has concluded and before the conclusion of the Commissioner’s case, the Commissioner has begun increasingly to seek orders for the service of a notice to admit, despite the absence of any rule-based regime in VCAT governing the consequences of non-response to such notices. Some practitioners have consented to such orders and VCAT has made them. There may be grounds to review decisions in such cases where the practitioner did not ‘waive’ the privilege, since President Ross said: ‘in the absence of a statutory provision to the contrary, or waiver by a respondent, the effect of penalty privilege is that a respondent cannot be ordered to make discovery, produce documents, provide information or respond to a notice to admit.’ Waiver as a concept in the law generally requires a high level of deliberate abandonment. No doubt for that reason, the Commissioner began some time ago to alert practitioners to the existence of the privilege when proposing such orders. President Garde has also made clear that the Tribunal itself has a duty ‘to ensure that a respondent is informed of the options in order to make an informed and voluntary decision whether or not to waive the privilege.’ The President also observed that many professionals will wish to make admissions if for no other reason than to be seen to be appropriately cooperative, and to attenuate the issues and so diminish the costs which will be payable if the practitioner loses. My clients often make extensive admissions, sometimes make denials, but often remain silent in relation to some issues and strenuously resist the characterisation of such silences the matters about which they have stayed silent as ‘denials’. There is, however, nothing to be gained from consenting to an order to provide a response to a notice to admit. When, as I have found to be the case, the notices are framed in a manner which purports to graft onto VCAT’s procedures a presumption of admission in the event of non-denial, great procedural uncertainty is generated, because, unlike in the state courts, there are no rules of procedure which provide a legal basis to generate such an admission. And it will often be more convenient for the practitioner to craft the admissions in the form he or she considers most appropriate, possibly in a discursive letter, and at a time convenient to him or her. Furthermore, the notices to admit usually track the allegations in the Application itself extremely closely, regardless of the admissions made during the investigation in correspondence which is annexed to the Application, so that the requirement to respond to the notice to admit is akin to a requirement to serve a defence, and the drafting, filing and service of the notice to admit generates a substantial cost on a party-party basis. Finally, for some reason, no one ever seeks orders to serve notices to admit on the Commissioner. If, for some reason, one were to consent to orders for the provision of a response to a notice to admit, it would seem appropriate to me to reserve a right to reciprocity. The privilege against penalties operates at least in proceedings in courts and tribunals and lasts until the applicant for relief in the nature of a penalty (e.g. a fine) has closed its case. Since the High Court’s decision in Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543 (see at 559), it has been well understood that the privilege against exposure to penalty ‘now serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it’ (in the words of Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ with whom McHugh J agreed, in Rich v ASIC (2004) 220 CLR 129). So too has it been well understood since Rich that the privilege has operation in relation to civil penalty provisions and to cases in which loss of office is sought. There has been a little controversy about whether suspension from practice is a penalty, but that was not treated in Justice Garde’s decision which is, in any event, consistent with the better view as to the resolution of that controversy.Even those penal proceedings thickly veiled in cloaks of ‘protective not punitive’ (a nonsense beautifully unpicked by McHugh J in his concurring reasons in Rich) are recognised as proceedings for a penalty. In that case, ASIC argued that proceedings by which no fine or civil pecuniary penalty was sought, but orders disqualifying Rich from being a director of a company were sought, were not proceedings for a penalty. The plurality of the High Court said something which is the judicial equivalent of: ‘Whoa! Steady on cowboy.’ Namely: ‘That stream of authority would suggest that for the Commission to seek an order disqualifying a person from acting in the management of a corporation on the ground that the person has contravened the law is to seek a penalty or forfeiture. The order is sought by a regulatory authority; its grant would be founded on demonstration of a contravention of the law; it is an order which leads to the vacation of existing offices in a corporation and imposition of a continuing disability for the duration of the order. What is it that would deny that conclusion?’ The privilege was given routine effect to in an appeal from a professional disciplinary prosecution in Towie v Medical Practitioners Board of Victoria [2008] VSCA 157 where the Court of Appeal unanimously reversed VCAT and admonished it for ignoring the privilege in formulating directions inconsistent with it, observing that it will ordinarily be inappropriate in disciplinary proceedings where the professional is exposed to a penalty to require provision of an outline of argument, or any other written material which contains a positive assertion or denial of facts or requires an election by the applicant as to whether he or she intends to go into evidence or requires any proposed evidence the applicant intends to call to be the subject of a witness statement which must be produced and served on the other side, before the disciplinary prosecutor has closed its case (at [9]). The Commissioner’s attack on the privilege focused closely on the characteristics of the decision in Towie (only dicta, it was said, only a general observation, a case about a doctor, not a lawyer, and doctors do not have the same duty of candour towards the courts as lawyers do, which makes all the difference). But, as the President observed: ‘penalty privilege is firmly entrenched privilege underpinned by decisions of the High Court of Australia and Supreme Court of Victoria [and] the passage cited from Towie’s case represents the law in Victoria, and is not open to serious doubt’. Interestingly, one of the Commissioner’s arguments against the penalties privilege was that it gives rise to the possibility of a split case, in which the Commissioner is forced to seek an adjournment once the respondent’s case comes out. I have never heard of the Commissioner actually doing this, and nor have I ever heard of any other person propounding a case for a penalty doing this, though my clients have sometimes stayed very silent and disclosed considerable information only after the close of the Commissioner’s case, and though there is talk of it from time to time. The Commissioner’s attack on the privilege was brought in a case in which there was no contradictor, because the practitioner, it was alleged, had left for the US and was not participating in the proceedings. Justice Garde did observe, by way of obiter dictum, that it would be ‘open to the Commissioner in an appropriate case to seek from the Tribunal the opportunity of presenting a case in reply, or directions for the provision of additional evidence’, e.g. where the practitioner ‘uses “ambush” tactics intended or likely to cause disadvantage or unfairness to the Commissioner’ (at [28]). And therein lies the real future battle ground. What will be an ‘appropriate case’? When will staying silent amount to ‘ambush tactics’? Since the whole point of the privilege is to put the person at risk of the penalty at liberty to stay silent except to the extent ordered by the Tribunal to disclose that which may properly be required to be disclosed consistently with observance of the privilege, and since adverse inferences ought not usually to be drawn against a citizen who exercises a forensic privilege, presumably mere exercise of the privilege will not amount to ‘ambush tactics’. VCAT is a place where the courts’ rules of procedure apply only to the extent adopted by the Tribunal in a case by case basis, and whose own rules of procedure are, to say the least, amorphous (which is not to say that they are not rigorous, at least in theory, just that ascertaining their application to any particular scenario requires a broader enquiry than in courts bound by more closely worked out procedural rules). But even in such a place, it must be relatively unlikely that, having been obliged to come prepared to prove its case without assistance from the person from whom it seeks a penalty, having had every opportunity to compel the production of information, including information which would tend to incriminate the lawyer, during the investigation phase (a luxury the police could only dream of), and then having closed its case, it would properly be given leave to re-open its case, let alone be granted an adjournment to facilitate that, especially where the defence to be relied on was foreshadowed in the investigation phase, or the Commissioner should have been on notice of it as a result of matters which were foreshadowed during the investigation. If the police, without the benefit of a statutory phase of written interrogation prior to the commencement of proceedings, would not be permitted to do so in a murder trial, it is hard to see why a disciplinary prosecutor should be allowed to do so. Watch this space, and please keep me posted in relation to your own experiences of the privilege being negotiated around in the Tribunal. Finally, this is what Justice Garde said about the privilege: ‘Penalty privilege In Rich v ASIC, [7] the High Court described penalty privilege as one of a trilogy of privileges[8] that bear some similarity with the privilege against incrimination.[9] The privilege against exposure to penalties has long been recognised by the common law. It is also recognised in equity.[10] In equity, an order for discovery or for the administration of interrogatories in favour of the prosecutor would generally not be made where the proceeding was of a nature that might result in a penalty or forfeiture.[11] The penalties which attract the privilege include monetary exactions, loss of office, and proceedings for disqualification orders against officers of corporations.[12] The common law privilege against penalty comes from ‘the deep seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself’. [13] The content of penalty privilege is discussed in Pyneboard Pty Ltd v Trade Practices Commission.[14] In an action for penalty, the court should, in the absence of statutory provision to the contrary, refuse to make any order for discovery, production of documents or the provision of information for the reason that an intended consequence of the discovery, production of documents or provision of information is the imposition of the penalty.[15] In addition to decisions of the High Court of Australia and elsewhere, penalty privilege has been given effect in a number of cases in the Supreme Court of Victoria.[16] In MH6 v Mental Health Review Board,[17] the Court held that an involuntary treatment order under the Mental Health Act 1986 (Vic) enlivened ‘those aspects of the hearing rule articulated in Towie’.[18] The consequences of an involuntary treatment rule include ‘the continued, indefinite and involuntary detention of the applicant’.[19] Procedural fairness would require that an involuntary detainee be given an opportunity to hear and respond to evidence that provides the jurisdictional basis for continued confinement.[20] In Re Australian Property Holdings Limited (in liq) (No 2),[21] Robson J held that a number of principles were established by authority: (a) in the case of self-incrimination privilege, the defendant must establish that the provision of information or the production of documents in the civil case leads to a real and appreciable risk of a criminal prosecution before the privilege can be invoked; (b) in an action to recover a penalty it is not necessary for a defendant to establish that there is a risk the defendant will be subjected to a penalty by providing information to the plaintiff. The plaintiff is seeking the information for that very purpose; (c) in civil actions, where no claim for penalty is made, the defendant must show that providing the information requested would tend to subject him to a penalty in separate proceedings before he can rely on the privilege; (d) the privilege against exposure to penalty is a common law right of privilege that may be availed of as of right and is enforced and protected by the Court; (e) the privilege against the exposure to penalty may be relied on by a defendant to a civil procedure in which a penalty is not sought (“the non-penalty civil proceeding”); (f) the privilege against the exposure to penalty extends to the obligation upon a defendant to plead, give discovery and answer interrogatories in the non-penalty civil proceeding; (g) as a general rule, the privilege does not entitle a defendant to a non-penalty civil proceeding to obtain an order in limine excusing him or her from giving discovery or answering interrogatories; (h) in exceptional circumstances, a defendant may be entitled to such orders in limine; (i) by extension, in exceptional circumstances, a defendant may be entitled to orders in limine that he may deliver a defence that departs from the Rules of Court only insofar as to protect his privilege against exposure to penalty; (j) exceptional circumstances may exist where the defendant to the civil proceeding is also the subject of separate civil penalty proceedings alleging the same or similar conduct; and (k) where a defendant seeks to take the privilege against exposure to penalty in a defence, the proper course is to plead accordingly and – if challenged – the defendant will be required to justify that the privilege is taken in good faith and on reasonable grounds for the privilege to stand. [22] Robson J accepted that in a penalty proceeding a defendant should not be required to produce documents or disclose information so assisting in establishing the defendant’s liability to penalty.[23] The principle extends to proceedings which are not penalty proceedings.[24] In Gemmell v Le Roi Homestyle Cookies Pty Ltd (in liq),[25] Ashley JA adopted a paraphrase of the propositions stated by Robson J, highlighting that the privilege against exposure to a penalty can only be successfully claimed where a person shows that to give an answer or answers would tend to subject him to a penalty in [the same] or separate proceedings.[26] The privileges can be abrogated by statute or waived.[27] Having regard to the weight of authority in Australian courts, there is no doubt that the principles relating to penalty privilege are well entrenched in the law of Victoria and are applicable to proceedings in the Tribunal. Effect of authority It can be taken from the authorities as established that: (1) penalty privilege will arise in proceedings of a disciplinary character against legal practitioners, health practitioners, and other persons, and in general in any proceedings where a monetary exaction, loss of office, forfeiture, or other penalty may result; (2) penalty privilege will protect against the requirement to make discovery, produce documents, or give information that may assist in establishing liability to a penalty, such as that sought by a notice to admit; (3) penalty privilege can be regarded as an extension of procedural fairness on the basis that it would be inconsistent with the respondent’s common law rights and privileges to be required to make discovery, produce documents or provide information which might assist in a proceeding against the respondent to recover a penalty; (4) penalty privilege can be abrogated by statute or waived by the respondent; (5) while it is accepted that legal practitioners have a duty to the court of open candour and frankness, this does not affect their common law and equitable right to penalty privilege; and (6) Towie’s case does not stand alone but is consistent with, and well supported by, a considerable body of authority which is binding on the Tribunal. Accordingly, I find in relation to the submissions made on behalf of the Commissioner that: (1) penalty privilege is a firmly entrenched privilege underpinned by decisions of the High Court of Australia and Supreme Court of Victoria; [28] (2) the passage cited from Towie’s case represents the law of Victoria,[29] and is not open to serious question or doubt; (3) subject to any abrogation by statute, or waiver by a respondent, it is appropriate for members of the Tribunal sitting in the Legal Practice and Review and Regulation Lists to apply the law as set out in Towie; (4) the Court of Appeal in Towie held that the provision by a respondent of written grounds and an outline of argument which identifies in broad terms what is in issue is consistent with penalty privilege; (5) the standard Tribunal directions are consistent with the law relating to penalty privilege as found in Towie; and (6) in the absence of a statutory provision to the contrary, or waiver by a respondent, the effect of penalty privilege is that a respondent cannot be ordered to make discovery, produce documents, provide information or respond to a notice to admit. Notwithstanding the existence of penalty privilege, respondents may (and often this is the case) be desirous of producing documents and information on a voluntary basis in order to defend the charges laid against them, or reduce their significance or gravity. This however is a voluntary decision. The duty of the Tribunal is to ensure that a respondent is informed of the options in order to make an informed and voluntary decision whether or not to waive the privilege. [7] [2004] HCA 42; (2004) 220 CLR 129 (‘Rich’).[8] The other two privileges are the privilege against exposure to forfeiture and the privilege against exposure to ecclesiastical censure.[9] [2004] HCA 42; (2004) 220 CLR 129, 141 [23] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) referring to Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, 553-554 [13] and to Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328, 336.[10] Rich [23]-[24]. The history of the privilege is fully discussed by McColl JA in Rich and Silberman v ASIC [2003] NSWCA 342, [195]-[257].[11] Rich [24]; Naismith v McGovern [1953] HCA 59; (1953) 90 CLR 336, 341-342. [12] Rich [26], [28], [34], [36]. [13] Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477; quoted with approval in Trade Practices Commission v Abbco Iceworks Pty Limited & Ors [1994] FCA 1279; (1994) 52 FCR 96, 129; in turn cited with approval in Rich v ASIC [2004] HCA 42; (2004) 220 CLR 129, 142. [14] [1983] HCA 9; (1983) 152 CLR 328, 336 (Mason ACJ, Wilson and Dawson JJ). [15] Ibid. [16] For other jurisdictions see Valantine v Technical and Further Education Commission [2007] NSWCA 208 [51]; Bridal Fashions Pty Ltd v Comptroller – General of Customs (1996) 140 ALR 681, 690. [17] [2009] VSCA 184; (2009) 25 VR 382. [18] Ibid [26] (Redlich JA and Hargrave AJA). [19] Ibid. [20] Ibid. [21] [2012] VSC 576; (2012) 93 ACSR 130 (‘Re APCH (No 2)’). [22] Ibid [115] (citations omitted). [23] Ibid [116]. [24] Ibid [86] referring to Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (1979) 42 FLR 204, 207-208 (Deane J). [25] (2014) 102 ACSR 367 (Ashley and Neave JJA; Almond AJA). [26] Ibid [85]. [27] Ibid [49]-[50], referring to Reid v Howard [1995] HCA 40; (1995) 184 CLR 1, 12. [28] Above [11]-[18]. [29] Above [7]. [30] Towie [2008] VSCA 157 [9].’

Sunday, March 22, 2015


Can’t afford a lawyer? How courtroom innovations help self-represented litigants Courts in New York, the U.K. and Windsor, Ont., are making life easier for the growing number of people who end up representing themselves. Share on Facebook Reddit this! Justice Fern A. Fisher, seen in her New York chambers, began a program to train volunteeer law students to help shepherd tenants with legal issues through housing court. An evaluation is beginning this summer that will help to quantify the success of these "navigators."VIEW 2 PHOTOSzoom TINA FINEBERG / THE ASSOCIATED PRESS Justice Fern A. Fisher, seen in her New York chambers, began a program to train volunteeer law students to help shepherd tenants with legal issues through housing court. An evaluation is beginning this summer that will help to quantify the success of these "navigators." By: Rachel Mendleson News reporter, Published on Sat Mar 21 2015 Navigating the courts without a lawyer is a gruelling and daunting experience that has become all too common among Ontario’s growing masses of self-represented litigants. The high cost of lawyers, combined with the erosion of legal aid and the proliferation of free legal resources on the Internet, has led to the justice system becoming what Julie Macfarlane, a law professor at the University of Windsor, describes as “a completely different universe.” The shift has been particularly seismic in the area of family law, where Macfarlane estimates that more than half of all litigants are now self-represented, numbers that are consistent across North America, the U.K. and Australia. The implications can be serious. Lori Murphy says high legal fees drove her to represent herself in a yearlong dispute against her ex-husband, after he filed a motion to have his unpaid child support erased. “It’s emotionally, financially and physically stressful,” said Murphy, whose ex was represented by a lawyer. “It consumed my whole life.” The gap between those who can afford a lawyer and those who qualify for legal aid is now so significant, says Macfarlane, that it’s “not something we’re going to be able to solve exclusively by putting more money in public legal services.” “We have to start figuring out how to deliver legal services differently,” she said. With this in mind, judges, law professors and volunteers are coming up with new ways to increase access to justice for self-represented litigants. Here is a look at how three jurisdictions are levelling the playing field. New York City When Justice Fern Fisher was head of New York City’s civil court in the early 2000s, she was struck by the fact that the vast majority of tenants in housing court, 98 per cent, did not have a lawyer. “Housing law in New York City is very complicated,” said Fisher, who is now deputy chief administrative judge for the city’s courts. “It’s also a crisis situation for the person who is about to lose their home.” So Fisher’s office started training volunteer law students to shepherd tenants through the system, making them aware of their possible defences and connecting them with social services. The initiative was formalized last February, on a pilot basis, when the state’s chief judge created the Court Navigator Program to assist unrepresented litigants New York City in the areas of housing and consumer debt, a first in the U.S., Fisher said. There are plans to expand the program this year to family court and uncontested divorces. Since launching, the program has included about seven paid and 60 unpaid navigators, which now include college students. There are rules about what navigators can do and can’t do — for instance, a navigator can help with scheduling proceedings and gathering relevant information, but can only address the court to answer factual questions, and is not allowed to perform any service that constitutes the practice of law. An evaluation beginning this summer will help to quantify the success of navigators, but Fisher said the anecdotal results are “very good.” “There are more defences being raised,” she said. “Our litigants clearly have a better feel about their experience in court.” The idea appears to be catching on: The Legal Information Society of Nova Scotia is currently reviewing the navigator program with an eye toward implementing it in that province, and Fisher says she has received inquiries from courts in other U.S. states. Windsor, Ont. Unlike some other jurisdictions, the Law Society of Upper Canada does not allow paralegals to practise family law in Ontario. According to Macfarlane, that’s a major hurdle in closing the access-to-justice gap. But there are other ways to help self-represented litigants besides providing legal advice. Last year, Macfarlane started a coaching program, matching law students with local self-represented litigants, a first in Canada, she said. As a volunteer coach, third-year law student William Good says he spent anywhere from two to three hours per week assisting a self-represented plaintiff in a civil case. He says his most notable contributions included listening and providing a rational perspective. “Most self-represented litigants just want somebody to hear them — being able to talk about their problem without somebody judging them,” Good said. In this case, he said the plaintiff largely “knew what her legal matters were.” “She needed somebody who could help her see through the mud of the whole issue,” he said. England and Wales For decades, courts in England and Wales have allowed trusted advisers without legal training — dubbed “McKenzie Friends” — to provide unrepresented litigants in family court with moral support, as well as assistance with note-taking and procedural matters. The role, according to a report in The Scotsman, dates back to a 1971 divorce case, where the unrepresented husband won the right to appeal on the basis that the judge had excluded his friend, who was trained as a lawyer in Australia but not in the U.K., to assist him at trial. More recently, McKenzie Friends range from volunteers to paid professionals, with fees that tend to be about 25 per cent of what lawyers charge, said Ray Barry, who has worked full-time as a McKenzie Friend in England’s Midlands region for nearly six years. Similar to the law student coaches in Windsor, Ont., and courtroom navigators in New York City, McKenzie Friends can provide pointers on legal procedure but can’t address the court. In response to concerns about the lack of regulation, Barry recently set up a trade association for McKenzie Friends, which sets out professional standards. “When someone goes into court as a McKenzie Friend, they can (now) present their credentials to the judge,” Barry said. “That will give the judge and the opposing lawyer a degree of confidence that the person will be competent in what they’re doing.”


The Australian Professional Liability Blog Inbox x The Australian Professional Liability Blog 04:39 (14 hours ago) to me The Australian Professional Liability Blog Can a legal regulator rescind a decision to bring disciplinary proceedings Posted: 20 Mar 2015 10:10 PM PDT The Supreme Court of Tasmania has made an important ruling in Legal Profession Board of Tasmania v XYZ [2014] TASSC 33 about the finality of decisions made by legal regulators at the end of disciplinary investigations. The decision suggests that in those jurisdictions with similar statutory provisions, until a disciplinary prosecution is launched, such decisions may be less final than I suspect many lawyers in Australia have previously believed. A decision of the Victorian Court of Appeal, which related to a different situation where one of two courses following a disciplinary investigation was gone down and completed and the professional regulator sought subsequently to go back down the alternative course, was distinguished: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301. Tasmania’s legal regulator decided, following an investigation, to launch a disciplinary prosecution of a lawyer. Counsel was briefed, and the regulator was advised that the investigation was incomplete and should be re-commenced. So the regulator rescinded its decision to prosecute before having commenced proceedings in the disciplinary tribunal and sought to re-investigate. The lawyer refused to cooperate, asserting that the regulator did not have the power to do so. The Court observed that once disciplinary proceedings were commenced, they could not be withdrawn without leave of the disciplinary tribunal, by virtue of a provision in the Tasmanian Legal Profession Act 2007. But prior to that stage having been reached, that Act did not cut-down the presumption provided for in the Tasmanian legislation in relation to the interpretation of statutes that a statutory decision maker may generally reverse or vary statutory decisions. The Court described the statutory decision to launch the disciplinary prosecution as ‘interlocutory’. I am not sure whether the same result would be produced in Victoria, but no one should assume without carefully considering that question that the Legal Services Commissioner may not rescind a decision to prosecute should exculpatory evidence come to light after deciding to prosecute and giving notice of such a decision. So, if a lawyer has missed his opportunity to respond to a ‘Murray letter’ setting out the Commissioner’s tentative conclusions following what is proposed to be the end of the investigation and providing a last chance to comment, and a decision to prosecute is launched, it may well be worth sending a response to the Murray letter promptly in the hope that the Commissioner will be convinced to substitute a different decision before it is too late and the prosecution is commenced. Equally, a lawyer who receives the benefit of a decision in a disciplinary complaint which does not involve prosecution ought not assume that that is necessarily the end of the matter. If a new witness were to come forward, or it became clear that the investigation was incompetently conducted in some way, or simply that a mistake had been made, the Commissioner might seek to rescind the original decision and reopen it.

Saturday, March 14, 2015


Nicholas Ni Kok Chin 387 Alexander Drive DIANELLA WA 6059 16th March, 2015 The Principal Registrar Magistrates Court of Western Australia 8 Holdsworth Street FREEMANTLE WA 6160 Dear Sir CASE NO. FREMANTLE/MINOR/944 OF 2007: CHIN V THIES I refer to your Notice that the above case is on the Inactive List dated 7.1.2015 and that it will be dismissed by the 7th day of July, 2015. In compliance to your request that I file an Application to remove it from the Inactive List, please find the attached Application in Form 23. I believe there is no requirement for me to file an Affidavit in Support as all the documentary proofs are in the various files in the various courts where my various appeals have been brought into and they are self-explanatory. It is for the judicial system to correct itself and right all the injustices done to me and it is not for me to further progress with this matter as I have done everything possible that are needed to be done. Thank you. Yours faithfully NICHOLAS NI KOK CHIN.

Thursday, March 12, 2015

NAVIGATORS OR NON-LAWYER ADVOCATES: PEOPLE WITHOUT LAW DEGREES CONTRIBUTING TO THE LEGAL SYSTEM IN NEW YORK AND HERE YOU HAVE THE UGLY FACE OF LEGAL CORRUPTION DOING THE WRONG THING TO MEMBERS OF THE LEGAL PROFESSION: NON-LAWYER ADVOCATES IN OUR FIGHT TO CLOSE THE JUSTICE GAP IN NEW YORK STATE, non-lawyers have been an increasingly powerful force. Two years ago, I asked Roger Maldonado and Fern Schair to chair a Committee on Non-Lawyers and the Justice Gap and to explore ways that people without law degrees could make meaningful contributions to helping low-income people with legal problems. Since then, we have established programs in Housing Court in Brooklyn and in consumer debt cases in Civil Court in the Bronx. These programs use “navigators” — trained non-lawyers — who provide an array of services, including information, guidance within the court house, and moral support. They assist litigants in completing do-it-yourself forms, assembling documents, identifying possible sources of assistance funding, and in certain cases, accompany litigants and answer factual questions in the courtroom. The Navigators help litigants understand the process and reinforce the timetables and responsibilities as set out by the court. The Committee recently completed a report that demonstrates a marked difference in the behavior of litigants accompanied by Navigators — a greater ability to more clearly set out the relevant facts and circumstances and a significant increase in use of relevant defenses for those litigants. We have shared the progress of this program with the New York State Bar Association, which also sees the great promise of this exciting new concept. I am pleased to announce today, that I intend to introduce legislation this year that calls for a further level of involvement by non-lawyers in assisting litigants. This proposal would codify a more substantial role for non-lawyers by establishing a category of service providers called “Court Advocates” in Housing Court and in consumer credit cases to assist low-income litigants. While there is no substitute for a lawyer, the help of a well-trained non-lawyer standing by a litigant’s side is far preferable to no help at all. We have already seen what a difference it can make. INDIGENT CRIMINAL DEFENSE PROVIDING QUALITY LEGAL REPRESENTATION FOR INDIGENT PERSONS accused of a crime remains both a legal obligation and a moral priority for our justice system. Recent developments strongly suggest that our state is now on a fast track to fulfilling the promise and mandate of Gideon v. Wainwright. The historic settlement last fall of the Hurrell-Harring lawsuit means that, for the first time, the State has acknowledged that it bears responsibility to set standards and provide funds necessary to ensure the high and uniform quality of representation for low-income people in criminal cases. Moreover, the settlement vests responsibility for implementation of its stringent provisions with the Office of Indigent Legal Services. Thus, the settlement honors two foundational and fundamental principles: that the quality of representation in cases legally mandated by Gideon is truly the responsibility of the State; and that the task of securing needed improvement in the quality of representation must be vested in an independent and professionally staffed office. Despite this welcome achievement, our efforts are far from over. The settlement terms—which, most importantly, require implementation of caseload limits and provision of counsel at first court appearance—apply only to five of the state’s 62 counties. And although the average institutional defender caseloads in those counties are currently too high — nearly 500 per attorney, well in excess of the nationally recognized limits —none of the five counties are among the 23 counties most in need, where average attorney caseloads exceed 700. We simply do not have the luxury of waiting indefinitely to make progress in the rest of the state. We must take full advantage of the momentum of the settlement and the effective blueprint it provides. That is why the Office of Indigent Legal Services is seeking $28 million from the Legislature for the upcoming fiscal year for what would be the first phase of a five-year upstate caseload reduction and provision of counsel at first appearance program. We can no longer tolerate the unacceptable circumstance in this state in which the quality of justice one receives is dependent on the happenstance of where one is charged and prosecuted. NATIONAL SUMMIT ON HUMAN TRAFFICKING AND THE STATE COURTS AQUALITY INDIGENT DEFENSE SYSTEM IS FUNDAMENTAL to access to justice, and fighting the evil of human trafficking is also a vital component of ensuring justice for all. The Judiciary has the ability to be a catalyst for change in addressing this problem, and New York leads the way in this regard, at the forefront in developing responses to sex trafficking. In 2013, I announced New York’s launch of the nation’s first statewide system of dedicated courts designed to intervene in the lives of trafficked human beings. I am pleased to announce today that on October 7-9, 2015, New York will host a National Summit on Human Trafficking and the State Courts. The Summit will be financed by a nearly half million dollar grant from the federally funded State Justice Institute, which has done such great work in this area through the State Courts Collaborative—of which New York’s Center for Court Innovation is an integral player. Building upon New York’s experience and expertise in Human Trafficking Intervention Courts, the Summit will provide a national platform for discussion among state court leaders and will further the goal of building national, state, and local partnerships to address the full scope of human trafficking. This groundbreaking Summit will be conducted in partnership with the National Center for State Courts, the National Conference of Chief Justices, and the National Conference of State Court Administrators. Individuals charged with prostitution-related offenses are overwhelmingly victims of trafficking, recruited or forced into the commercial sex industry. Jurisdictions and courts around the country are just beginning to recognize this phenomenon. The New York Summit will be a significant catalyst to raise consciousness about the nature, scale and scope of human trafficking, and the role of the state courts in combating this modern day form of slavery, where victims, at the youngest of ages, are exploited by a vast and evil industry. (To Be Continued Next Week)

Friday, February 13, 2015

LAWYERS ARE NOT AGENTS OF STATE AND THE DUTY OF LAWYER TO A CLIENT'S CAUSE: CANADA The Supreme Court of Canada ruled Friday on a long-running dispute lawyers had with Ottawa terror and money-laundering law. SEAN KILPATRICK / THE CANADIAN PRESS The Supreme Court of Canada ruled Friday on a long-running dispute lawyers had with Ottawa terror and money-laundering law. By: Tonda MacCharles Ottawa Bureau reporter, Published on Fri Feb 13 2015 OTTAWA—The Supreme Court of Canada has ruled a federal anti-money laundering law that forces lawyers to identify sources of their clients’ cash and allows federal investigators to conduct warrantless searches of law firms is unconstitutional. In a ruling Friday, the high court settled a 15-year-long dispute between Canada’s legal profession and the federal government. The effect of the decision is to exempt lawyers, notaries and law offices from the law’s record-keeping, client-identification and disclosure obligations. But the law still applies to other financial institutions, banks and accounting firms who must track their clients’ money trails and may be subjected to warrantless searches by government authorities. The Proceeds of Crime (Money Laundering) and Terrorist Financing Act was passed by the former Liberal government in 2000, part of an international movement to crack down on terrorist financing. It required lawyers to identify and verify the source of any money in transactions over $3,000 that they handled on behalf of clients, to keep records for five years and produce them on demand. It empowered Ottawa’s financial intelligence agency, the Financial Transactions and Reports Analysis Centre of Canada — the body that tracks financing of terrorist activity and organized crime — to enter law offices, demand documents, and make copies of information in files or on computers. Lawyers who failed to comply were exposed to fines up to $500,000 or jail terms up to five years. The Federation of Law Societies launched a constitutional challenge of the law in 2001 on behalf of the 14 self-governing bodies that oversee Canada’s lawyers, arguing it was an attempt to turn lawyers into “agents of the state” and their law firms into “archives for the police and prosecution.” On Friday, the high court agreed. It found the law breached lawyers’ Charter protections against unreasonable search and seizure, as well as the constitutional right not to be unduly deprived of liberty, and could not be justified. All seven high court judges agreed with the federation that the law breached solicitor-client privilege, however, a majority of five judges went further than that. They enshrined a new privilege — known as the “duty of a lawyer to a client’s cause” — in the Constitution, calling it a basic principle of fundamental justice. It strengthens the guarantee of life, liberty and security of the person. While Chief Justice Beverley McLachlin and Michael Moldaver agreed with the majority on the outcome, they stopped short of embracing any new constitutional principle of a lawyer’s “duty of commitment to a client’s cause,” saying that the privileged protection of solicitor-client communications — already a constitutional principle — was enough. The end result is a victory for the 14 self-regulating law societies across Canada who moved to bring in their own tough rules governing law practices. Tom Conway, president of the Federation of Law Societies which led the challenge, said those rules already ensure lawyers aren’t “dupes” of money-launderers or terrorists. Justice Thomas Cromwell, writing for the majority, pointed to those rules of legal practice and ethical standards that ensure lawyers will not “unknowingly assist in or turn a blind eye to money laundering or terrorism financing.” Conway said the ruling means that clients and the Canadian public “can have confidence that that information they impart to their lawyer will not be accessible to the state in pursuit of criminal sanctions.” Conway said the federation had won injunctions against the application of the law against the country’s litigators and advocates while litigation and discussions with government were underway. But when consultations failed to reach a consensus, the litigation was revived about five years ago. “We’re delighted,” said Fred Headon, past president of the Canadian Bar Association. “Courts often speak of our Constitution as a living tree, and I think today it sprouted a new branch.” Headon said the ruling “recognizes an important element of (how) our democracy functions. Canadians need to have confidence in that system or else they won’t avail themselves of it.” “The duty of commitment to the client’s cause is not only concerned with justice for individual clients but is also deemed essential to maintaining public confidence in the administration of justice,” the ruling said. That duty ensures that “divided loyalty does not cause the lawyer to ‘soft peddle’ his or her (representation)” and prevents the solicitor-client relationship from being undermined, Cromwell added. The Conservative government said little Friday, other than that it would take time to review the decision, according to Nicholas Bergamini, spokesman for Finance Minister Joe Oliver.