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Victorian Legal Services Commissioner v Stirling (Legal Practice) [2019] VCAT 1929 (6 December 2019)

Last Updated: 9 December 2019

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

LEGAL PRACTICE LIST VCAT REFERENCE NO. J39/2019

CATCHWORDS Barrister – delays in completing work – making himself unavailable to appear at court hearing by going overseas without advising his instructing solicitor – failing to respond to request from the regulator to provide information – four disciplinary charges – findings of unsatisfactory professional conduct and professional misconduct – Legal Profession Uniform Law ss296, 297(1)(a), 302(3), 371.

FINDINGS

In relation to charge 1, concerning delays in drafting a Statement of Claim during the period 5 February to 28 August 2015, Mr Stirling is found guilty of unsatisfactory professional conduct under s 296 and s 302(3) of the Legal Profession Uniform Law (Uniform Law). In relation to charge 2, concerning delays in drafting the Amended, and Further Amended Statement of Claim during the period 3 March to 20 May 2016, Mr Stirling is found guilty of unsatisfactory professional conduct under s 296 and s 302(3) of the Uniform Law. In relation to charge 3, concerning Mr Stirling’s non-appearance at a County Court hearing on 14 July 2016, Mr Stirling is found guilty of professional misconduct under s 297(1)(a) of the Uniform Law. In relation to charge 6, concerning Mr Stirling’s failure to respond to notices to provide information to the Victorian Legal Services Commissioner, Mr Stirling is found guilty of professional misconduct under s 297(1)(a), s 298(a) and s 371 of the Uniform Law.

ORDER

The matter is set down for a two hour hearing at 10 am on 31 March 2020 at 55 King Street Melbourne, to consider what orders the Tribunal should make as a consequence of the above findings.







Jonathan Smithers

Senior Member









APPEARANCES

For applicant Ms Van Proctor of Counsel For respondent No appearance





REASONS

Introduction

On 28 August 2014, the respondent, Mr Matthew Stirling, a barrister, was briefed by Scanlon Carroll, solicitors, in Kew, to act in relation to a dispute between shareholders of a private company. Mr Stirling held the brief and undertook various tasks, until his retainer was withdrawn in July 2016. The retainer was characterised by extensive delays on Mr Stirling’s part, as detailed below. On a number of occasions he said he would complete tasks by a particular date, but then failed to do so. This included situations where these failures caused his client to be in breach of County Court orders. Additionally, Mr Stirling failed to inform his client in a timely way about these non-compliances. Most notably, he was briefed to appear at a hearing on 14 July 2016. But on 12 July 2016 he flew overseas without notifying his instructing solicitor, even though he had recently discussed this hearing with her. Replacement counsel had to be briefed at short notice. This application is brought by the applicant (the VLSC) following receipt of a complaint by Mr Stirling’s client, made through Scanlon Carroll. The VLSC has identified three separate series of actions by Mr Stirling, each of which it alleges comprise professional misconduct. These involve: Delays in drafting the Statement of Claim (5 February 2015 – 28 August 2015) Delays in drafting an Amended and Further Amended Statement of Claim (3 March 2016 – 20 May 2016) Failure to advise his client that he would not be available to appear at a hearing on 14 July 2016 concerning an application to set aside a subpoena which had been issued on behalf of his client. The VLSC has also brought a charge in relation to Mr Stirling’s failure to respond to a statutory notice to provide information in response to the complaint. His response was required by 7 August 2017, which deadline was extended to 18 August 2017, then to 4 September 2017, and then to 22 October 2017. No substantive response was ever received from Mr Stirling. The conduct referred to at 4i above occurred in part prior to the coming into effect on 1 July 2015 of the Legal Profession Uniform Law (Uniform Law).[1] The drafting of charge 1 below reflects this. The conduct prior to 1 July 2015 is dealt with together with the post-1 July 2015 conduct, pursuant to the transitional provision in clause 27 of Schedule 1 to be Uniform Law. Other than by consenting to interlocutory orders made on 13 June 2019, Mr Stirling has not participated in this proceeding at all. He did not appear at the hearing. I was satisfied he had been given notice of the hearing by the Tribunal. In addition, the VLSC had communicated with him by way of a number of emails and telephone messages during the period leading up to the hearing, referring to the hearing date. There was also an email exchange between Mr Stirling and the VLSC after the hearing, in which Mr Stirling was advised that the hearing had proceeded in his absence. The Tribunal has received no further communications from Mr Stirling. Accordingly, at the hearing, the VLSC led sworn evidence in support of the allegations it has brought. Witness statements were provided by the Scanlon Carroll solicitor who had carriage of the County Court litigation, Ms Amanda Harrington, and by the VLSC’s investigator, Mr Martin Watts. Each gave brief sworn evidence, adopting their witness statements.

The VLSC’s Application

The VLSC’s Amended Application for Orders describes the circumstances in which the alleged conduct occurred. I am satisfied from the sworn evidence that the following narrative in the Amended Application for Orders accurately describes those circumstances:[2]

The Respondent

The Respondent has been admitted as a barrister and solicitor of the Supreme Court of Victoria since 3 June 1991. The Respondent practised solely as a barrister from 28 November 1991. The Respondent was an Australian lawyer within the meaning of section 1.2.2(a) of the Legal Profession Act 2004 (Vic.) (the 2004 Act) from 12 December 2005. The Respondent:

(a) on and from 12 December 2005 to 1 December 2013; and

(b) on and from 14 June 2014 to 30 June 2015;

was an Australian legal practitioner within the meaning of section 1.2.3(a) of the 2004 Act.

The Respondent was from 1 July 2015 to 31 May 2018 an Australian legal practitioner within the meaning of section 6 of the Uniform Law.

Retainer

On about 28 August 2014, the Respondent was retained by Scanlan Carroll, solicitors, on behalf of [his client], and entities associated with [his client] in relation to a unitholder dispute.

Statement of claim

On about 5 February 2015, the Respondent was instructed to draw a Statement of Claim for proceedings to be commenced in the County Court. By email dated 12 March 2015, the Respondent advised Scanlan Carroll that he would provide a draft statement of claim by 18 March 2015. The Respondent did not send a draft statement of claim or any other communication to Scanlan Carroll by 17 March 2015. On 25 March 2015, the Respondent made a request for further documents from Scanlan Carroll. The requested documents were provided to him that day. On 31 March 2015, the Respondent was advised that [his client] had no further instructions or relevant documents. On 8 April 2015, the Respondent sent a memorandum to Scanlan Carroll which advised that he had “started to draft the Statement of Claim but it appears that decisions need to be made about critical issues before the structure of the claim is finalised.” By email dated 16 April 2015, the Respondent advised Scanlan Carroll that “we should issue early next week. I will finalise the draft when I get back [on 17 April 2015]”. The Respondent did not send a draft statement of claim or any other communication to Scanlan Carroll by 17 April 2015. On 24 April 2015, the Respondent requested that the solicitor from Scanlan Carroll with conduct of the file contact him the following week. On 28 April 2015, the Respondent sent an email to Scanlan Carroll which advised “I will get my secretary to send you through the draft”. A draft statement of claim was not provided to Scanlan Carroll by the Respondent’s secretary on 28 April 2015 or at all. On 6 May 2015, Scanlan Carroll sent an email to the Respondent asking when the statement of claim would be provided. No response was provided by the Respondent. On 21 May 2015, the Respondent asked Scanlan Carroll if emails sent by him earlier that month had been received. Scanlan Carroll confirmed that no emails had been received from the Respondent that month and requested that the Respondent provide the statement of claim as a matter of urgency. On 26 May 2015, the Respondent sent a draft statement of claim to Scanlan Carroll under cover of an email which stated “I was waiting to discuss it with you before sending it through” and sought a conference with [his client’s] accountant. [Deleted in Amended Application for Orders.] On 29 July 2015, the Respondent advised Scanlan Carroll that the proceedings should be issued the following week. On 20 August 2015, the Respondent provided a revised statement of claim to Scanlan Carroll and requested further information to finalise the statement of claim. The requested information was provided to the Respondent on or before 25 August 2015. On 28 August 2015, the Respondent provided a final statement of claim to Scanlan Carroll, which was filed with the County Court that day. By engaging in the conduct referred to in paragraphs 7 to 24, during the period:

(a) from 5 February 2015 to 30 June 2015, the Respondent breached rules 3, 4, 11 and / or 106 of the Victorian Bar Rules of Conduct (the Bar Rules); and

(b) from 1 July 2015 to 28 August 2015, the Respondent breached rules 8, 35, 57, 58(b) and / or 111 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (the Rules).

Amendments to the statement of claim and provision of particulars

On 22 February 2016, the Respondent appeared for [his client] at a hearing before Kennedy J. The Respondent consented to an order that [his client] file and serve any proposed Amended Statement of Claim by 4 March 2016. The Respondent was responsible for the drafting of the proposed Amended Statement of Claim. On 4 March 2016, the Respondent advised Scanlan Carroll that he would “have the Amended Statement of Claim done by Monday [7 March 2016]”. Relying on that advice, Scanlan Carroll informed the defendant’s solicitors that the Amended Statement of Claim would be filed no later than 7 March 2016. The Respondent did not provide an Amended Statement of Claim or any other communication to Scanlan Carroll on or before 7 March 2016. On 8 March 2016, in response to an email from Scanlan Carroll, the Respondent advised that he would provide a draft Amended Statement of Claim “at 2.30pm” that day. The Respondent did not provide a draft Amended Statement of Claim or any further communication to Scanlan Carroll on 8 March 2016. At 4.42pm on 9 March 2016, in response to further requests for the Amended Statement of Claim from Scanlan Carroll, the Respondent advised Scanlan Carroll by text message that “you will need to bear with me until tomorrow”. On 10 March 2016, Scanlan Carroll requested that the Respondent provide the draft Amended Statement of Claim by midday on 11 March 2016 and stated that [his client’s] interests were being prejudiced by the Respondent’s delay. The Respondent did not provide the draft Amended Statement of Claim or any other communication to Scanlan Carroll on 11 March 2016. On 15 March 2016, Scanlan Carroll requested that the Respondent’s brief be returned. On 16 March 2016, the Respondent forwarded a draft Amended Statement of Claim to Scanlan Carroll. No explanation was provided for the delay. On 17 March 2016, Scanlan Carroll asked the Respondent to return the brief if he had any reservations as to the time he would be able to devote to the matter. The brief was not returned. By email dated 21 March 2016, the Respondent assured Scanlan Carroll that he had sufficient availability to remain briefed in the matter. On 6 April 2016, the Respondent appeared on behalf of [his client] at a hearing before Anderson J. Orders were made for a further amended statement of claim to be served by 20 April 2016 and for further and better particulars to be provided by 2 May 2016. The Respondent did not advise Scanlan Carroll of any difficulty in meeting the timetable ordered by the Court. The Respondent did not provide any draft further amended statement of claim or any other communication to Scanlan Carroll on or before 20 April 2016. The Respondent provided a draft further amended statement of claim to Scanlan Carroll on 21 April 2016. The Respondent did not provide any further and better particulars to Scanlan Carroll on or before 2 May 2016. On 6 May 2016, the Respondent was provided with correspondence from the defendant’s solicitors which advised that if particulars were not supplied by 9 May 2016, the defendants would have the matter listed for directions without further notice. The Respondent did not provide the particulars or any other communication in relation to the particulars to Scanlan Carroll by 9 May 2016. By engaging in the conduct referred to in paragraphs 26 to 45, during the period from 3 March 2016 to 20 May 2016 the Respondent breached rules 35, 57, 58(b) and / or 111 of the Rules.

Appearance at the hearing on 14 July 2016

By email dated 20 June 2016, the Respondent was advised that a summons to set aside a subpoena issued by Scanlan Carroll had been listed for hearing on 14 July 2016. On 22 June 2016, the Respondent informed Scanlan Carroll by telephone that he was not available on 14 July. On 6 July 2016, the Respondent sent an email to Scanlan Carroll which stated that he would be away from 22 to 26 July 2016. The Respondent asked Scanlan Carroll to seek the defendant’s consent to an adjournment of the hearing. At about 4:00pm on 6 July 2016, Scanlan Carroll had a telephone conversation with the Respondent. Scanlan Carroll’s file note of the conversation records the following inter alia: “Summons – 14 July return date, he is away just after – no time...let crt [sic] know that counsel unavailable [sic]”. On 11 July 2016, Scanlan Carroll informed the Respondent that the defendant did not consent to an adjournment of the hearing. The Respondent advised that he would revert to Scanlan Carroll that day. The Respondent did not revert to Scanlan Carroll on 11 July 2016 or at all in relation to the hearing listed for 14 July 2016. On 12 July 2016, Scanlan Carroll attempted to contact the Respondent and was advised by the Respondent’s clerk that the Respondent was on a flight to an overseas destination. Scanlan Carroll was required to brief new counsel at short notice to appear at the hearing on 14 July 2016. By engaging in the conduct referred to in paragraphs 48 to 53, during the period from 6 July 2016 to 12 July 2016 the Respondent breached rules 8, 35, 57, 58(b) and / or 111 of the Rules.

Complaint

On about 2 June 2017, the Applicant received a complaint dated 31 May 2017 made by Scanlan Carroll on behalf of its client.. The complaint alleged that the Respondent had breached rules 35, 57 and 111 of the Rules. The complaint contained a disciplinary matter within the meaning of section 270 of the Uniform Law.

The investigation of the Respondent’s conduct

The Applicant commenced an investigation of the complaint against the Respondent pursuant to section 282 of the Uniform Law. On about 8 June 2017, the Applicant delegated the investigation to the Victorian Bar Inc. pursuant to section 406 of the Uniform Law. On about 8 June 2017, the Victorian Bar Inc. appointed members of the Ethics Committee of the Victorian Bar (the investigators) to conduct the investigation pursuant to section 282(2) of the Uniform Law. By letter dated 17 July 2017, the investigators served a notice on the Respondent pursuant to section 371 of the Uniform Law (the notice). The notice required the Respondent to provide a full written explanation of his conduct and any relevant information or documents by 7 August 2017. By letter dated 11 August 2017, the investigators advised the Respondent that he had failed to reply to the notice and referred to the Respondent’s obligations under section 371 of the Uniform Law. The investigators sought a response by 18 August 2017. On 11 August 2017, the Respondent sent an email to the investigators in which he stated that he would provide a response by 14 August 2017. The Respondent did not provide a response to the notice or any other communication to the investigators on or before 18 August 2017. By letter dated 29 August 2017, the investigators sought a response to the complaint by 4 September 2017. On 11 September 2017, the Respondent sent an email to the investigators attaching a document which was headed “preliminary response.” The “preliminary response” sought documents referred to in the complaint and submitted that there was no link between the events referred to in the complaint and the alleged breaches of the Rules. The “preliminary response” did not contain an explanation of the Respondent’s conduct or any relevant information or documents. By letter dated 5 October 2017, the investigators provided to the Respondent the documents referred to in the complaint. The investigators requested that the Respondent provide his response to the complaint by 22 October 2017. On 5 October 2017, the Respondent sent an email to the investigators which stated that his response would be provided “on time”. The Respondent did not provide a response or any other communication to the investigators by 22 October 2017 or at all. On 21 December 2017, the investigators sent a letter to the Respondent expressing the preliminary opinion that the Respondent’s conduct, inter alia, could be regarded as conduct capable of constituting professional misconduct by a substantial and consistent failure over 18 months to reach or maintain a reasonable standard of competence and diligence. The investigators sought a response to the preliminary opinion from the Respondent by 2 February 2018. The Respondent did not respond to the investigators by 2 February 2018 or at all. By engaging in the conduct referred to in paragraphs 61 to 69, the Respondent contravened section 371 of the Uniform Law. On about 14 September 2018, the Applicant extended the scope of the investigation pursuant to section 283 of the Uniform Law to include conduct that may have contravened rule 8 of the Rules and section 371 of the Uniform Law. By letter dated 14 September 2018, the Applicant notified the Respondent that the scope of the investigation had been extended to include conduct that may have contravened rule 8 of the Rules and section 371 of the Uniform Law, and sought a full written explanation of the Respondent’s conduct by 30 September 2018. The Respondent did not provide a written explanation of his conduct or any other communication to the Applicant by 30 September 2018. On 10 October 2018, the Respondent sent an email to the Applicant seeking documents relied upon to support the allegations made against him. On 11 October 2018, the documents sought by the Respondent on 10 October 2018 were provided to him and the time for providing a written explanation of his conduct was extended to 26 October 2018. The Respondent did not provide a written explanation of his conduct to the Applicant by 26 October 2018 or at all. By letter dated 18 December 2018, the Applicant informed the Respondent that it appeared that his conduct in relation to the preparation and provision of a statement of claim to Scanlan Carroll may have contravened specified provisions of the Bar Rules during the period from 5 February 2015 to 30 June 2015 and may have contravened specified provisions of the Rules during the period from 1 July 2015 to 28 August 2015. The Applicant offered the Respondent the opportunity to provide by 7 January 2019 any further written submissions or material that he wanted to have taken into consideration. The Respondent did not provide to the Applicant any further written submissions or material by 7 January 2019 or at all. On the basis of the matters referred to above, the Applicant formed the opinion that the Respondent has engaged in conduct that may amount to professional misconduct.

NOW TAKE NOTICE THAT

The Applicant takes the view that for the purposes of the Saving and Transitional Provisions set out in Schedule 4 of the Uniform Law (in particular, clauses 2 and 27), a breach of the Bar Rules is capable of amounting to professional misconduct for the purposes of sections 297 and 298 of the Uniform Law (on the basis that the same conduct was capable of amounting to professional misconduct for the purposes of the like provisions contained in the Legal Profession Act 2004 (Vic), now repealed and, in particular, sections 4.4.3(1)(a) and 4.4.4(a) thereof).

I now make application to the Tribunal for determination of the following charges pursuant to sections 302 and 303 of the Uniform Law.

Findings

Charge 1

Charge 1 is as follows:

Professional misconduct within the meaning of section 297(1)(a) of the Uniform Law for engaging in conduct that involved a substantial and / or consistent failure to reach or maintain a reasonable standard of competence and diligence during the period from 5 February 2015 to 28 August 2015 in that the Respondent:

(a) acted with inordinate delay in the preparation and provision of a statement of claim to Scanlan Carroll;

(b) failed to meet assurances to Scanlan Carroll that the statement of claim would be provided by specific dates;

(c) failed to inform Scanlan Carroll that the assurances would not be met;

(d) from 5 February 2015 to 30 June 2015, breached rules 3, 4, 11 and / or 106 of the Bar Rules; and

(e) from 1 July 2015 to 28 August 2015, breached rules 8, 35, 57, 58(b) and / or 111 of the Rules.

Particulars

The particulars relied upon are those set out in paragraphs 7 to 25 [above].

In summary, the evidence in relation to charge 1 reveals the following: While instructions were given on 4 February 2015 to draft the client’s Statement of Claim, the original brief to Mr Stirling of August 2014 was reasonably detailed, and there had already been a teleconference with Mr Stirling and the client’s accountant on 16 December 2014. So by 5 February 2015, Mr Stirling already had some familiarity with the issues.

On four occasions, Mr Stirling promised to provide the Statement of Claim by a specified day, but did not then provide it, namely: 18 March, 17 April, 28 April and 19 August 2015. [3]

On various occasions Mr Stirling asked for more information or documents. These requests were responded to promptly on each occasion.

On 21 May 2015, Mr Stirling said he had sent some emails about 10 days earlier. Searches were made by Scanlan Carroll, and no such emails could be located.

There is an unexplained gap of about one month after Mr Stirling sent a draft Statement of Claim to Scanlan Carroll on 26 May 2015. In the absence of any evidence about what, if anything, occurred during that month, I assume in Mr Stirling’s favour that this month should not be counted against him. On 25 June 2015, there was a conference at which matters of substance relevant to the claim were discussed.

However, on 14 July 2015, Scanlan Carroll again told Mr Stirling by emailed letter that it was urgent that the matter get underway.

There was a conference on 29 July 2015 at which further information required from the client’s accountant was discussed. This was provided on 30 July, and immediately onforwarded to Mr Stirling. Again, I assume in his favour that this information was legitimately required and some time should be allowed to Mr Stirling for this.

Accordingly, I find that the periods when Mr Stirling could be said to have caused unreasonable delay are generally from 18 March to the end of May, and for most of the months of July and August 2015. That is a total of approximately four months. During that time the solicitors had contact with Mr Stirling to chase him up on numerous occasions. According to my review of the documents this occurred on at least the following occasions: 10 and 23 March, 23 April, 6, 20 and 21 May, 14 July, 18, 20, 27 and 28 August 2015.

I note the effect of this delay was to defer the issuing of proceedings by the client. Aside from the obvious inconvenience and prolonged uncertainty for his client, and associated impacts that would have had, I am not aware that this caused any particular loss due to dissipation of evidence or anything of that nature. Again, I assume in Mr Stirling’s favour that it did not.

The claim as finally drafted on 28 August 2015 is not particularly complex nor do the notes of conferences or memoranda suggest to the contrary. That is not to say it was a simple claim to prepare. I assume, in Mr Stirling’s favour that it was not. I find the matters alleged at (a), (b) and (c) of charge 1 proved. It is clear from the above narrative that Mr Stirling acted with inordinate delay in the preparation and provision of the statement of claim. He failed to meet assurances he had given to Scanlan Carroll that would be provided by specific dates. And he failed to inform Scanlan Carroll on each occasion, or virtually each occasion, that those assurances would not after all be met. Also, in terms of the matters alleged at (d) and (e) of charge 1, I am satisfied the applicable Bar Rules were breached. The following Rules from the Victorian Bar Incorporated Practice Rules, applicable prior to 1 July 2015, are relevant: A barrister must act honestly, fairly and with competence and diligence in the service of a client, and should accept instructions and a retainer to act for a client only when the barrister can reasonably expect to serve the client in that manner and attend to the work required with reasonable promptness. A barrister must not engage in conduct which is –

(a) dishonest or otherwise discreditable to a barrister;

(b) prejudicial to the administration of justice; or

(c) likely to diminish public confidence in the legal profession or in the administration of justice or otherwise bring the legal profession into disrepute.

A barrister must seek to advance and protect the client’s interests to the best of the barrister’s skill and diligence, uninfluenced by the barrister’s personal view of the client or the client’s activities, and notwithstanding any threatened unpopularity or criticism of the barrister or any other person, and always in accordance with the law according to these Rules. A barrister must promptly inform the instructing solicitor or the client, as the case may be, as soon as the barrister has reasonable grounds to believe that there is a real possibility that the barrister will be unable to appear or to do the work required by the brief in the time stipulated by the brief or within a reasonable time if no time has been stipulated. Mr Stirling’s conduct prior to 1 July 2015 was in breach of these rules as follows:

Rule 3 – I am satisfied that the delays indicate a lack of competence or diligence in his service of the client

Rule 4 – Although not in the most serious category of scandalous or dishonest conduct, this conduct nevertheless tends incrementally to diminish public confidence in the administration of justice, and to erode the reputation of the profession

Rule 11 – Mr Stirling’s conduct did not promote and protect his client’s best interests. As plaintiff, his interest was in having the matter brought on as soon as reasonably practicable, so that his dispute, which related to the business he had been involved in until it was broken up in circumstances associated with his own health condition, could be brought to a head, so that he could deal with this major event in his life.

Rule 106 – Clearly Mr Stirling failed properly to inform his instructing solicitor on the occasions described above, especially during late March, April and May 2015, when he was unable to do the work required within the time stipulated.

From 1 July 2015 the Legal Profession Uniform Conduct (Barristers) Rules 2015 applied. The VLSC alleged that Mr Stirling’s conduct breached the following Rules: [Advocacy rules] General

A barrister must not engage in conduct which is –

(a) dishonest or otherwise discreditable to a barrister;

(b) prejudicial to the administration of justice; or

(c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

Duty to the client

A barrister must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person.

Efficient administration of justice

A barrister:

(a) must seek to ensure that the barrister does work which the barrister is briefed to do in sufficient time to enable compliance with orders, directions, rules or practice notes of the court; and

(b) if the barrister has reasonable grounds to believe that the barrister may not complete any such work on time, must promptly inform the instructing solicitor or the client.

A barrister must seek to ensure that the work which the barrister is briefed to do in relation to a case is done so as to:

...

(b) have the case ready to be heard as soon as practicable

A barrister must promptly inform the instructing solicitor or the client as soon as the barrister has reasonable grounds to believe that there is a real possibility that the barrister will be unable to appear or to do the work required by the brief in the time stipulated by the brief or within a reasonable time if no time has been stipulated. Mr Stirling’s conduct after 1 July 2015 was in breach of these rules as follows.

Rule 8 – for the same reasons as old Rule 4 was breached.

Rule 35 – for the same reasons as old Rule 11 was breached.

In relation to Rule 57 , I find this has not been breached, since charge 1 relates to pre-issuing delays, so no court orders, etc, were breached.

Rule 58(b) - Given my finding that the preparation of the Statement of claim was unreasonably delayed for most of July and August 2015, I find that Rule 58(b) was breached.

Rule 111 For the same reasons as old Rule 106 was breached, although only in one instance, and for a single day.

Sections 296 and 297 of the Uniform Law relevantly provide:[4]

296 Unsatisfactory professional conduct

For the purposes of this Law,

"unsatisfactory professional conduct" includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer

Professional misconduct

(1) For the purposes of this Law, professional misconduct includes—

(a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence;

Section 302 (3) provides:

The designated tribunal may find a person guilty of unsatisfactory professional conduct even though the complaint or charge alleged professional misconduct. [5]

There is no doubt that Mr Stirling’s conduct comprised unsatisfactory professional conduct. He continually over-promised and under-delivered. The delays and failures to provide the Statement of Claim when promised certainly fell short of the standard of competence and, especially, diligence, that a member of the public is entitled to expect of a reasonably competent barrister. That is, the conduct satisfies the definition of unsatisfactory professional conduct in both the Legal Profession Act 2004 and the Uniform Law. Accordingly, the question I have to decide is whether the proved conduct the subject of the charges amounts to either a substantial or a consistent failure to reach or maintain a reasonable standard of competence and diligence. In New South Wales Court of Appeal in Council of the Law Society of New South Wales v Webb[6], the Court of Appeal said in relation to the equivalent NSW provision:

The distinction made by that definition is between conduct which involves a ‘substantial’ failure to reach or maintain the required standard and conduct which involves a ‘consistent’ failure to do so. The former directs attention to the nature and consequences of the failure, which may be sufficiently serious to raise questions as to the lawyer’s competence and diligence and thereby warrant the description ‘substantial’. The reference to a ‘consistent failure’ is to ongoing or persisting acts of failing on different occasions to reach or maintain the required standard. The same or similar failures which occur on a series of related occasions and are explained by an overarching error of judgment on the part of the lawyer (which is not itself the or a relevant failure which is the subject of complaint) do not involve a ‘consistent failure’ in the sense in which that expression is used in this definition.

Although the Court of Appeal’s decision in Webb is not binding on the Tribunal, its reasoning is persuasive. In Council of New South Wales Bar Association v Asuzu[7] the Administrative Decisions Tribunal said of the equivalent provision that ‘substantial ... should be taken as referring to a failure to meet the requisite standard in a way that is meaningful or relevant to the legal practitioner’s ability to practise law’. With some hesitation, I have concluded I cannot be satisfied that the evidence is sufficient to demonstrate that Mr Stirling’s conduct over the period from February to August 2015 which is the subject of charge 1, amounts to a substantial failure ‘to reach or maintain a reasonable standard of competence and diligence’. I have reached this conclusion in light of the lack of evidence as to any particular adverse effect on the client of the delays. And also, in light of the fact that the evidence did not fully explain the circumstances in which conferences were held, and that additional information was provided at several points throughout this period of the retainer. Again with some hesitation, I have concluded I cannot be satisfied that Mr Stirling’s conduct constitutes a consistent failure ‘to reach or maintain a reasonable standard of competence and diligence’. The factors mentioned in the above paragraph apply here too. The VLSC seems to invite me to infer that the requests for more information at various points during the seven months from 5 February – 28 August 2015 were all due to inefficiency on Mr Stirling’s part and that they were devices to buy himself more time. However, there was a lack of positive evidence led by the VLSC to support such an inference. Ms Harrington, the solicitor at Scanlon Carroll who gave evidence in support of the VLSC’s case, said she only commenced to work on this matter in October 2015. She worked under the supervision of Mr Reidy, who had himself retired from the firm in August 2016. The evidence in Ms Harrington’s witness statement about the period from February – October 2015 came from her review of the contents of the file for that period, prior to her starting at Scanlan Carroll. It was said Mr Reidy was not available to give evidence in this case. Overall, the VLSC has not led evidence which is sufficiently direct and compelling to enable me to be comfortably satisfied that Mr Stirling’s actions, and in particular, his omissions, amount to either a substantial or a consistent ‘failure to reach or maintain a reasonable standard of competence and diligence’. On this basis I find the conduct engaged by Mr Stirling under charge 1 amounts to unsatisfactory professional conduct under s 302(3), but not professional misconduct.

Charge 2

Charge 2 is as follows:

Professional misconduct within the meaning of section 297(1)(a) of the Uniform Law for engaging in conduct that involved a substantial failure to reach or maintain a reasonable standard of competence and diligence during the period from 3 March 2016 to 20 May 2016 in that the Respondent:

(a) failed to do all things necessary on his part to enable [his client] to comply with Court orders for the preparation and provision of amendments to the statement of claim and further and better particulars;

(b) failed to inform Scanlan Carroll that the amendments to the statement of claim and further and better particulars would not be prepared and provided in accordance with the timetable ordered by the Court;

(c) failed to meet assurances to Scanlan Carroll that the amendments and particulars would be provided by specific dates;

(d) failed to inform Scanlan Carroll that the assurances would not be met; and

(e) breached rules 35, 57, 58(b) and / or 111 of the Rules.

Particulars

The particulars relied upon are those set out in paragraphs 26 to 46 [above].

In summary, the evidence in relation to charge 2 reveals the following: There was an interlocutory hearing before Judge Kennedy in the County Court on 22 February 2016. On behalf of his client, Mr Stirling consented to an order that any proposed amended statement of claim be filed and served by 4 March 2016.

Scanlan Carroll chased Mr Stirling up on several occasions during the week of Friday, 4 March 2016. Messages from the solicitors were not responded to.

Ultimately, on 4 March, Mr Stirling promised he would provide an amended statement of claim by the following Monday 7 March. He did not. On 8 March at 11:30 am, Mr Stirling said he would provide it by 2:30 pm that day. He did not.

By letter email at 4:29 pm on 9 March, Scanlan Carroll requested Mr Stirling return his brief if the document was not received by midday the following day, 10 March. By text at 4:42 pm, Mr Stirling told his instructor ‘You will need to bear with me until tomorrow apologies Matthew Stirling’.

At 9.30 am the next day, 10 March, his instructor said by text that he would wait until midday on 11 March, and that the client’s interests were being prejudiced. That deadline was not met either.

On 15 March 2016, his instructor rang Mr Stirling’s clerk, requesting the brief be returned. Alternative counsel were discussed.

Finally, on 16 March 2016, at 9:32 am, the Amended Statement of Claim was sent to Scanlan Carroll, with an apology for the delay.

On 17 March 2016, Mr Stirling’s instructor, Mr Reidy, again wrote to him about his availability. Mr Reidy said that in the almost two years since he had been involved in the case with Mr Stirling, they had always agreed that the watershed in the proceedings would be discovery of documents by the defendants and the negotiation at any mediation following, and that that stage had now been reached. Mr Reidy went on to say there is a strict timetable of 1 April 2016 for submissions and 6 April 2016 for the hearing of cross-applications, and that much more work needs to be undertaken by both counsel and solicitors. The letter went on to say:

‘If you are satisfied that your current arrangements permit you to devote the time and attention to this matter we are of course more than content to leave the matter in your capable hands.

If however you have any reservations as to the time you will be able to devote to the matter in the near future we would respectfully suggest that the best interests of the client would be served by returning the brief now in order that fresh Counsel may be engaged.’

By email of 21 March 2016, in response to an email asking ‘Are you able to remain in the action’, Mr Stirling replied ‘Certainly from my end, hopefully from yours. I apologise for the inconvenience.’

On 6 April 2016 there was an interlocutory hearing before Judge Anderson in the County Court. Mr Stirling appeared for the plaintiff. It was ordered that a Further Amended Statement of Claim be filed by 20 April 2016, with specified additional particulars relating to two paragraphs of the document to be provided. Additionally, the plaintiff was ordered to provide Further And Better Particulars by 2 May 2016.

On 7 April 2016, Mr Stirling produced a table setting out a list of tasks required to be done in preparation for the trial, including the above two dates of 20 April and 2 May 2016. He also sent an email informally discussing a number of the strategic issues.

On 14 April 2016, there was a conference in Mr Stirling’s chambers attended by Mr Reidy, Mr Gary Fettes, the client’s expert, and Mr Stirling.

Mr Stirling did not produce the Further Amended Statement of claim by 20 April 2016, as ordered by the Court. However, he did produce it at 11.35 am the following day.

In a telephone discussion on 21 April 2016, Mr Stirling advised that the Further and Better Particulars, due on 2 May 2016, should be filed after discovery was received from the other side.

The Further and Better Particulars were not delivered as required on 2 May 2016. On 6 May, the other side threatened a further directions hearing, plus indemnity costs, if they were not provided by 9 May.

The Further and Better Particulars were not provided by Mr Stirling by 9 May. On 10 and 11 May, Mr Reidy wrote to the other party saying discovery from them was required first.

The defendants brought the matter on for directions on 18 May 2016. Mr Reidy attended court on that day. However, unbeknown to him, the matter had been adjourned by agreement between counsel. (I note, however, that this act of apparent discourtesy does not explicitly form part of the particulars, so I do not take it into account.) It then turned out that the parties were unable to agree, and orders were made by the court on 23 May 2016.

I was told that Further and Better Particulars were never produced by Mr Stirling.

Ms Harrington’s evidence was that the client settled the matter at mediation on 4 August 2016. She said that settlement was not advantageous for the client, who in her professional opinion entered into the mediation negotiations at a severe disadvantage, having not complied with many of the orders without adequate justification.

It is clear from the above narrative that the matters alleged at (a), (b), (c) and (d) are proved. In relation to (e) of charge 3, I find Mr Stirling’s conduct in producing the Amended Statement of Claim and Further Amended Statement of Claim late, and not producing the Further And Better Particulars ordered by the court, breached the following Rules:

Rule 35 – in that his conduct was contrary to his client’s best interests.

Rule 57 – in that his conduct caused court orders to be breached, and that in he did not inform his instructing solicitors promptly of this.

Rule 111 – in that, once again, he did not inform his instructing solicitors that he would not be able to do the work required within the stipulated time.

In my view, the totality of the evidence clearly amounts to a basis for finding that Mr Stirling’s conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. This is particularly in light of the delays in producing the Amended Statement of Claim, the non-production of the Further and Better Particulars and the adverse effect this had on the client’s strategic position. In considering the seriousness of this unsatisfactory professional conduct encompassed by charge 2, I am conscious that there was no evidence that the failure to comply with the 22 February 2016 order of Judge Kennedy to file and serve an Amended Statement of Claim by 4 March 2016 led to an adverse costs order. And also, that the requirement to file that document may well have been superseded by the order of 6 April 2016 by Judge Anderson to produce a Further Amended Statement of Claim by 20 April 2016. The Further Amended Statement of Claim was itself filed late, but only by one day, on 21 April 2016. It does appear that during the period covered by charge 2, Mr Stirling engaged to some degree with the legal and strategic issues in the case, through the work he did in preparing the timetable, his email discussion of issues, attending conferences and, the drafting of the Amended and Further Amended Statement of claim. As noted, however, the Further and Better Particulars were never prepared by Mr Stirling. Overall, I have concluded there was not sufficient evidence led for me to conclude that such failure was substantial. Accordingly, I find, under s 302 (3), that Mr Stirling has engaged in unsatisfactory professional conduct in relation to charge 2, but not professional misconduct.

Charge 3

Charge 3 is as follows:

Professional misconduct within the meaning of section 297(1)(a) of the Uniform Law for engaging in conduct that involved a substantial failure to reach or maintain a reasonable standard of competence and diligence during the period from 6 July 2016 to 12 July 2016, in that the Respondent:

(a) failed to inform Scanlan Carroll that he would be overseas on the date of a hearing in the proceeding;

(b) three days prior to the hearing, assured Scanlan Carroll that he would revert to them in relation to the hearing, but failed to do so; and

(c) failed to advise Scanlan Carroll that alternative counsel would need to be briefed to appear at the hearing; and

(d) breached rules 8, 35, 57, 58(b) and / or 111 of the Rules.

Particulars

The particulars relied upon are those set out in paragraphs 47 to 53 and 55 [above].

In summary, the evidence in relation to charge 3 reveals the following: On 17 June 2016, the matter was listed for the hearing on 14 July 2016 of an application to set aside a subpoena which had been issued on behalf of his client.

Although he initially told his instructor, Ms Harrington, (on 22 June 2016) that he was not available for the hearing on 14 July, Mr Stirling’s subsequent actions had the effect of indicating that he was in fact available. On 22 June, he advised his instructor not to send anything to the court yet. On 29 June, the return date of 14 July was again discussed, but Mr Stirling did not make any mention of an adjournment of that hearing. On 5 July, Ms Harrington asked him to confirm his availability to appear on 14 July. Mr Stirling replied on 6 July that he was away between 22 and 26 July and asked if the solicitors could ‘bump’ the matter until his return. Then, on 6 July, Ms Harrington telephoned him to clarify the dates he was away, and his availability to attend the hearing on 14 July. Mr Stirling told her he was away ‘just after’ 14 July.

On 11 July, Mr Stirling was told the other side had not agreed to put the date off. He told Ms Harrington to leave it with him for half an hour and he would call her back. He did not do so, and so she quite reasonably assumed that the matter was proceeding on 14 July, and Mr Stirling would appear.

However, when Ms Harrington rang Mr Stirling’s clerk on 12 July, she was told he had already departed for two weeks’ leave and was on a flight that day.

Replacement counsel had to be briefed at short notice, requiring significant additional work by Scanlan Carroll and the client. It is clear from the above that Mr Stirling was aware of the return date of 14 July, and by his conduct conveyed to Ms Harrington that while he would prefer to avoid that hearing, he was only away after that date. The VLSC does not contend that Mr Stirling was consciously dishonest. But it does contend that he made incorrect statements, which resulted in his instructing solicitors and client being ‘left in the lurch’ at very short notice. The file notes and correspondence provided to the Tribunal verify this. I am satisfied from the evidence that is what occurred. Accordingly, I am satisfied that the matters alleged at (a), (b) and (c) of charge 3 have been proved. In relation to the matters alleged at (d) of charge 3, I find that Mr Stirling’s conduct in absenting himself without notice on 12 July 2016 breached the following Rules:

Rule 8(c) – in that this conduct tends to diminish confidence in the legal profession.

Rule 35 – in that it was contrary to the interests of his client.

Rule 11 – in that he breached his obligation to inform his instructing solicitor he would not appear on 14 July 2016.

Further, I am satisfied that Mr Stirling’s conduct in simply absenting himself at short notice without explanation comprised a substantial failure to reach or maintain a reasonable standard of competence and diligence. Mr Stirling had been briefed as counsel in the matter for almost two years by this time. As counsel with an important interlocutory hearing coming up, the client was highly reliant on him. He held a position of significant responsibility. On occasion, barristers can find themselves ‘jammed’, as a result of the exigencies of listings in courts and tribunals. But this is quite different to that. I find Mr Stirling’s conduct the subject of charge 3 amounts to professional misconduct under section 297(1)(a) of the Uniform Law.

Charges 4 and 5

Charges 4 and 5 are expressed as alternatives to charges 1 – 3. Charges 4 and 5 are rolled up charges, each comprising all of the conduct the subject of Charges 1, 2 and 3. The VLSC’s primary position was that it pressed charges 1, 2 and 3, rather than charges 4 and 5. Accordingly, charges 4 and 5 fall away.

Charge 6

Charge 6 is as follows:

Charge 6

Professional misconduct within the meaning of sub-section 297(1)(a) and/or section 298(a) of the Uniform Law by contravening section 371 of the Uniform Law, in that the Respondent failed to comply with notices requiring the Respondent to provide written information on or before specified dates.

Particulars

The particulars relied upon are those set out in paragraphs 61 to 69 [above].

The circumstances relating to Mr Stirling’s failure to respond to the request by the regulator are described above. Mr Stirling was given a statutory notice, under s 371 of the Uniform Law to produce a full written explanation of his conduct by 7 August 2017. When he did not respond, this was extended to 18 August, and then to 4 September 2017. On 11 September 2017 Mr Stirling asked for copies of the documents on which the request was based, since he did not have many of them. They were provided on 5 October 2017, and the deadline for his response to the statutory information request was extended to 22 October 2017. This deadline of 22 October 2017 was not complied with. These events are the basis of charge 6. For completeness, what occurred after that was that on 21 December 2017, the Bar Ethics Committee, as the delegated investigator for the VLSC, wrote a detailed 84 paragraph letter explaining why it had reached the preliminary conclusion that the Rules had been breached, and that Mr Stirling may be guilty of professional misconduct. Although not a statutorily binding request, it gave him an opportunity to respond, by 2 February 2018. The matter then reverted to the VLSC. It sent out a letter dated 14 September 2018[8], indicating that the investigation had been expanded, including by the addition of the failure to respond to the statutory request. Mr Stirling was given an opportunity to respond by 30 September 2018, but did not. He was given a final opportunity to respond, in the form of a ‘Murray Letter’ on 18 December 2018, but once again, did not. I find that charge 6, relating to Mr Stirling’s failure to respond to the notices under s 371 requiring him to provide an explanation concerning his conduct by 7 August, 18 August, 4 September and 22 October 2017, is proved. It is important for the effective operation of the regulatory system that practitioners respond within a specified period to such statutory information requests. Information provided cannot generally be used against them.[9] If they do not respond promptly, the regime for the protection of the public through the investigation of potentially harmful conduct is adversely affected. In this instance, failure to respond within the deadline extended three times, in all circumstances, in the absence of any mitigating factors, is serious, and amounts to professional misconduct.

Conclusion

I have found that Mr Stirling engaged in unsatisfactory professional conduct in relation to charges 1 and 2 and professional misconduct in relation to charges 3 and 4. The matter will be set down for a further hearing to determine the orders which should be made as a consequence of those findings. The VLSC foreshadowed that it intends to seek an order that Mr Stirling be suspended from practising for a period.









Jonathan Smithers

Senior Member









[1] Pursuant to s 4 of the Legal Profession Uniform Law Application Act 2014 (Vic), the Uniform Law is adopted as a Victorian Act. It replaced the Legal Profession Act 2004.

[2] For clarity, references to annexed documents have been removed from the Amended Application for Orders as set out in this decision. They do however form part of the narrative.

[3] I note, however, a draft was provided the following day, 20 August 2015.

[4] The equivalent provisions under the Legal Profession Act 2004, s 4.4.2 and s 4.4.3(1)(a), were to the same effect.

[5] The equivalent provision under the Legal Profession Act 2004, s. 4.4.20, was to the same effect.

[6] [2013] NSWCA 423 at [22].

[7] [2011] NSWADT 209 at [40].

[8] It is not apparent what caused the delay between February and September 2018.

[9] See s 466 of the Uniform Law.

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