O what troubles do we seed,When we our emails do not read
O what troubles do we seed,
When we our emails do not read
News from Torrenside: the courts and profession in stasis arising from the failure of family law barrister Madeleine Betro to have renewed her practising certificate from July 1 last year.
The knock-on effect from this unhappy lapse has so far bounced through junior and senior divisions of the Family Court in Adelaide, and has now segued to the State’s Supreme Court, where it’s on its way to a multi-party Full Court hearing (the Full Court having survived the wrecking ball when SA created a Court of Appeal in 2021, to deal with disciplinary matters).
What brought on this fandango of litigation, apparently arising from Ms Betro overlooking her professional obligation to be licensed to practise?
The fair Madeleine was so focused on her practice (where various Family Court judges were approving and Doyle’s Guide was impressed by her “expertise and abilities”) that she adopted a de facto policy of not opening her inbox.
Later investigation revealed over 800 unopened. Among them of course were the usual demands, a month in advance of D-Day, from the licensing authority, the SA Law Society.
The fee (for the certificate plus compulsory professional indemnity insurance) comes to about $1,000, a snip for a busy and well remunerated junior.
Yet, the initial email request lay unopened, as did the follow-up reminders. July 1, 2024 came and went, Ms Betro now working at the Family Court bar table in breach of SA’s Legal Profession Act 1981, which makes it an offence to engage in practice without a ticket.
Further emails from the Law Society were sent to Ms Betro, increasingly urgent and equally unread.
The Law Society must have been getting edgy, as the Legal Profession Conduct Commissioner, Anthony Keane, became involved.
By early 2025 he was phoning Ms Betro at Elizabeth Evatt Chambers, where she never took the calls as she was busy in court.
Chambers passed the messages on to her, to no avail. Finally in February this year Keane walked to the Family Court where Betro was acting as counsel and put the arm on her: You’re not doing this, you’re unlicensed.
One might have hoped that the matter could have been speedily resolved. Mea maxima culpa, bend the knee, pay the penalty in respect of the numerous trials conducted since July 2024, return the fees for that period, accept administration of practice, and be re-schooled in practice management.
That should about do it. Young over-zealous practitioner back on track. Expensive but lesson learnt.
Hell no: instead we’re heading to a Cecil B deMille production of thousands in the Full Court. What is going on?
Your correspondent is advised that concern has mounted as to the validity of the trials in which Ms Betro was unlicensed counsel.
Such sins of omission have occurred before and no one seemed to blink, but introduced into Ms B’s Bonfire of the Vanities is a vengeful party who didn’t care for the cross-examination she underwent at the hands of the unlicensed brief.
Hell hath no fury, etc, and the aggrieved party (name at this stage unknown: let’s call her Madam Lash) has seen her chance – Betro is down and this is the moment to give her a good kicking.
If a claim can be mounted for invalidating all the Betro litigation since July 2024, including Madam Lash’s humiliation, then a further step beckons, of either making Ms Betro pay the damages arising in the shape of all the legal costs thrown away from all her trials, or alternatively, making the Law Society liable on the basis that it did not police its regulatory power, leading to the damage of invalid trials.
Bonus points arise from the opportunities to cross-examine Betro – Madam Lash may be assumed to be in a state of unconfined joy at this prospect.
The above surmise explains the mysterious anonymity in reports by the local Murdoch fishwrap, where the void trials theory was floated. The concept is attributed to “legal sources” (twice), “they” (twice) and “one said/asked” (twice).
“They” told The Advertiser of concern that the dispute could cause great disruption in the Family and Federal jurisdictions.
“It’s a matter of record that several judges have determined, in matters where [Ms Betro] was concerned, evidence must be excluded because it was improperly obtained.”
“They” then turned to the heart of the matter, raising questions to “about the actions taken by the [Law] Society and the Office of the Commissioner”.
“One” asked: “Sending repeated emails is one thing – why did someone not make a phone call, or go see her and have all this sorted out? … One has to ask, given they clearly knew about the situation, whether enough was done to prevent clients suffering harm”.
Now there’s been a giant directions hearing before Laura Stein of the Supremes, with no less than 23 lawyers in attendance – for Ms Betro, the Attorney General, the Law Society, Uncle Tom Cobley and all, and this list includes not just the Law Society as licensing authority, but also putative defendant to a claim in negligence.
The responsibility for much of this litigation must rest on the shoulders of Madam Lash’s lawyers, not named in The Advertiser’s account.
They appear to be a retired silk and adventurous senior junior, both of impeccable academic provenance. The elder is pouring flammable liquid into the younger’s flamethrower. The effect is napalm on the conflagration.
Justice Stein has referred the caravan off to the Full Court. Some fascinating tort law is unfolding. What, if any, is the compellability or liability of a regulatory authority for failure that results in third party damage?
Your correspondent raked his aged memory and came up with the litigation mounted by the grizzled morals campaigners, Mr and Mrs Blackburn: see R v Commissioner Metropolitan Police ex parte Blackburn [1968] 2 QB 118. The Blackburns wanted to get the court to order the police to take action against the “socially evil” pornographers who were haunting Soho. They lost.
Graham Barclay Oysters (2002) 211 CLR 540 and Sullivan v Moody (2001) 207 CLR 562 would appear to add to the hurdles facing a claim against the Law Society, but latter-day cases (eg Robinson v Chief Constable West Yorkshire Police [2018] AC 736 and Jennings v Police (2019) 133 SASR 520) allowing negligence claims against police may add power to Madam Lash’s arm.
As for the hapless Ms Betro’s liability for tortious damages caused through breach of statutory requirements, the phrase “action on the case” comes to mind.
Stay tuned. A storm in a Central State teacup starting with a practitioner’s email inadvertence, whipped up by a litigant’s wrath, may make some interesting (but very expensive) law.
In the meantime, Ms Betro is no longer listed at Elizabeth Evatt Chambers. All very sad.
As an alternative to invalidating all the family law trials involving the unlicenced Betro, the Full Court has been approached re the possibility of granting a retrospective practising certificate.
The mother in the relevant proceedings applied to be joined to argue against this … Joinder has been granted on a limited basis to make written submissions.