Complaint about a lawyer’s delays, fees and cost agreements … Bureau de Spank finds complaint not entirely outside statutory limitation … Tas CJ throws out judicial review … Absurd situation … Anonymity … No contempt … The Map … Alan Zheng reports
A Tasmanian solicitor, happily anonymised as EFG, came to the attention of the state’s Bureau de Spank after a complaint was made about him by former clients in their pursuit of compensation from the state.
The clients’ new solicitor had filed a complaint about EFG to the LPB, raising issues of delay, fees charged and difficulties encountered by the clients in obtaining invoices and costs agreements.
The only problem was the statutory limitation that prevents a complaint from being “dealt with” it if it is made more than three years after the conduct was alleged to have occurred.
This was an issue because the complaint related to conduct during EFG’s retainer between 2013 and 2018.
The board could still deal with the complaint if it determined that it was just and fair to do so and if the complaint was capable of amounting to an allegation of professional misconduct.
Instead of making a determination, the board found that some of the conduct would be within the statutory limitation, could not be summarily dismissed and therefore decided to appoint an investigator to look into the matter.
EFG went on the offensive, seeking judicial review of the determination and a quashing order against the board’s decision to appoint an investigator.
Chief Justice Alan Blow, in construing the statutory provisions, found against EFG on the judicial review and quashing order.
To deal with the complaint was to do one of a number of downstream steps like referral to a disciplinary tribunal or deciding whether the complaint was substantiated. Accordingly, the chief found:
“If investigating a complaint were to constitute ‘dealing with’ a complaint for the purposes of s 428(2), then determinations under that subsection could only be made immediately upon the receipt of a complaint, before any investigative steps had been taken. That would be an absurd situation since complaints are often incomplete or lacking in detail, and complainants often lack important information about the conduct of their lawyers.”
As the board had not made a decision one way or another in relation to the complaint, there was no error of law.
Having fended off EFG’s claims, the board half-heartedly went after him for contempt.
Although it had second thoughts after EFG’s case failed and sought to withdraw reliance on the contempt claim, the board did not concede that there was no contempt so EFG’s lawyers asked the court to decide the matter.
The heart of the contempt issue was an affidavit sworn by the board’s CEO Frank Ederle and provided for the purposes of the judicial review proceeding.
That affidavit ended up being used by EFG in the certiorari proceeding.
Ederle’s affidavit, the board argued, was provided subject to an implied undertaking that it not, without leave of the court, be used for any purpose unrelated to the proceedings in the Hearne v Street sense.
There was some authority to support the board’s argument that the rule extended to any document voluntarily created and filed for the purpose of a court proceeding (Central Queensland Cement Pty Ltd v Hardy).
The court found EFG had not committed any contempt.
The authorities required that the document be used for some purpose collateral or ulterior to the purpose it intended to serve.
But here the judicial review and certiorari proceedings were instituted in parallel, sought to obtain the same result and only existed separately because of differing procedures for relief.
To the contrary of any improper purpose, EFG had used the affidavit for the very purpose for its creation:
“To inform the court of the facts relevant to his contention that a decision had been made that was impeachable due to errors of law.”
Unsurprisingly, there’s no contempt to be found in a place free of the virus’ malignant effects.