VicAppeals speaks … Solicitor wrote letters to a magistrate while case was on foot … Failure to notify the other side … Professional misconduct … Lengthy career as a lawyer … Clear contravention of professional rules … Lack of insight … Whacked with a wet lettuce leaf … Louise Hall reports
Michael Gullquist, who has practised for 38 years both as general counsel of a listed company and, in recent years, as a sole practitioner, appealed a VCAT decision to the Supreme Court of Victoria and again to the Victorian Court of Appeal.
In a decision handed down this month, Pamela Tate, David Beach and Stephen McLeish refused Gullquist leave to appeal, finding that sending the letters “raised serious questions about his professional judgment and competence”.
The communications, including three personally addressed to the magistrate, were sent to the NSW Local Court in March and April 2014 when the Victorian-based Gullquist was acting pro bono for a man facing bankruptcy.
The most serious letter was sent on March 23, 2014, three days after the hearing of a notice of motion, and was addressed to the magistrate through the chief magistrate’s executive office. The letter was cc’d to the Judicial Commission of NSW.
In it, Gullquist claimed his client had not received a fair hearing, in part because every submission he made was “critically scrutinised and repeatedly challenged” while the submissions of his opponent “were neither the subject of any probing questions nor query upon your Honour’s part”.
Gullquist further claimed the magistrate’s refusal to allow him to file a written submission was neither “fair nor in the interests of justice nor satisfying the requisite provision of natural justice to my client”.
The magistrate forwarded the letter to the opposing solicitor, David Simons, and advised both parties he would allow Gullquist to file a short written submission in reply.
Upon receipt, Simons immediately emailed Gullquist, saying he was “staggered that a legal practitioner would send such correspondence to the court”, particularly without coping in the other party, and warning he would be reported to the Legal Services Commissioner.
When Gullquist wrote to the magistrate with the written submissions, he failed to copy Simons for a further three days. He then wrote another letter to the magistrate, describing Simons’s written submissions as “bare falsehoods”.
Simons again warned Gullquist, demanding he “refrain from trying to engage in private correspondence with His Honour”.
The Legal Services Commissioner brought two charges against Gullquist, alleging he broke two professional conduct and practice rules.
The commissioner alleged that in spite of a series of demands from his opponent that he desist in writing privately to the court, Gullquist continued to do so. Further, he did not provide copies of the communications he sent.
In January 2017 the Victorian Civil and Administrative Tribunal found Gullquist had engaged in conduct that involved a substantial failure to reach or maintain a reasonable standard of competence and diligence.
The tribunal ordered he be reprimanded and required to undertake an additional five CPD units in ethics and professional responsibilities.
Further, for two years he has to obtain the approval of an approved senior practitioner before sending correspondence to judicial or quasi-judicial officers in litigation matters.
The tribunal said despite Gullquist’s “astonishing failure to reach the expected standard”, the experienced solicitor had an otherwise unblemished record, had made some concessions during the hearing and had gained insight into his wrongdoing. There was, therefore, no reason to interfere with his practising certificate.
However, Gullquist sought leave of the Victorian Supreme Court to substitute the finding of professional misconduct for unsatisfactory professional conduct and to set aside the costs order made against him.
In December 2017, Justice John Dixon refused to grant leave to appeal. Gullquist then sought to have that order overturned on 17 grounds and suggested he should not be found guilty of either professional misconduct or unsatisfactory professional conduct.
The Court of Appeal refused to grant leave, finding his appeal had no real prospect of success. It found his application raised points not argued at first instance or before the trial judge.
Gullquist resiled from many of the concessions made by his counsel at the tribunal. He argued the tribunal and trial judge were wrong to conclude he was not permitted to engage in any correspondence with the magistrate while his client’s proceeding was on foot.
The appeal judges found his actions were “in clear contravention of professional rules” and noted any insight he may have demonstrated was now debatable.