ANNUAL REPORT - Parliament of Victoria - Home · Annual Report Ordered to be printed Victorian Government Printer September 2010 PP no 358, Session 2006–10 Legal Services Commissioner

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ANNUAL REPORT

2010

Accountable Officer’s Declaration

Legal Services Commissioner Annual ReportOrdered to be printed Victorian Government Printer

September 2010 PP no 358, Session 2006–10

Legal Services Commissioner

Level 9, 330 Collins Street MELBOURNE VICTORIA 3000

Ausdoc: DX185 ABN 66 489 344 310

Telephone: (03) 9679 8001 1300 796 344 (local call within Victoria) Fax: (03) 9679 8101 Email: [email protected] Website: www.lsc.vic.gov.au

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Contents

The Commissioner’s report 3

Significant achievements and events 5

Chapter 1 – Our performance 6

Handling complaints 6

Education 19

Research 24

Communications 24

Building and maintaining relationships 25

Responding to emerging issues 26

Chapter 2 – Human resources 27

Organisational structure 28

Workforce data and staffing trends 31

Staff training and professional development 33

Chapter 3 – Governance 35

Compliance statements 35

Chapter 4 – Financial statements 42

Chapter 5 – Complaints data 76

Part 1 Complaints data under the Legal Profession Act 2004 76

Part 2 Complaints and disputes outstanding under the Legal Practice Act 1996 (the old Act) 93

Appendices 96

1. Delegations 96

2. Disclosure Index 106

2 Legal Services COMMISSIONER 2010 Annual Report

Michael McGarvie is the Legal Services Commissioner. He was appointed to the role in December 2009 following the resignation of the former Commissioner, Victoria Marles. Michael is also the Chief Executive Officer of the Legal Services Board. The Legal Services Commissioner is an independent statutory authority accountable to the Victorian Parliament. The Attorney-General, the Hon. Rob Hulls MP, is the responsible Minister.

About the Legal Services CommissionerThe Legal Services Commissioner is responsible for the receipt and handling of complaints about lawyers in Victoria. The Legal Services Commissioner was established on 12 December 2005 by the Legal Profession Act 2004.


Our Objectives The statutory objectives of the Legal Services Commissioner are to:

• ensure that complaints against legal practitioners and disputes between law practices or legal practitioners and clients are dealt with in a timely and effective manner;

• educate the legal profession about issues of concern to the profession and to consumers of legal services; and

• educate the community about legal issues and the rights and obligations that flow from the client-practitioner relationship.

Our MissionThe Legal Services Commissioner strives to raise the standard of legal services provided in Victoria to a level of excellence and to deliver high consumer satisfaction.

Our ValuesImpartialityMaking decisions objectively

IntegrityEarning and sustaining public trust

AccountabilityTaking responsibility for results

Responsive service Demonstrating a spirit of service

Human rights Providing a fair go for everyone

The Commissioner’s report 3

This is my first Annual Report as Legal Services Commissioner of Victoria. I was appointed to this position by the Attorney-General on 22 December 2009, after acting as Commissioner for two months. Before that, I was Chief Executive Officer of the Supreme Court of Victoria for a period of three years. Prior to that, I was a solicitor in a private law firm for almost 24 years.

My role as regulator of the legal professionThe Legal Services Commissioner plays an important role in assisting lawyers and clients to resolve issues between them. The role is also fundamental in protecting consumers of legal services by ensuring Victorian lawyers maintain and provide high standards of legal services. During my time in private practice, I learnt about the value of effectively managing client relationships. I discovered how problems can unfold through very minor issues, including miscommunication or not adequately explaining legal processes. I am committed to sharing some of my knowledge and experience to help create positive relationships between the profession and consumers of legal services.

As regulator of the legal profession, I believe it is important that we consider the concerns of both the consumer and the lawyer in determining outcomes in complaints. For example, we need to consider the issues that contributed to the conduct

that caused the complaint. This may be due to lack of communication, illness or delays in handling matters. As the regulator, we must take a proactive approach and try to guide lawyers on avoiding similar problems in the future. It may also require us to educate clients on how to resolve future issues with lawyers. I look forward to working with members of the profession and consumers of legal services to maintain the existing high levels of legal services provided in Victoria.

Our work with Ombudsman VictoriaIn 2008–09, the Victorian Ombudsman conducted a review into our operations and provided a range of recommendations for improving our services. This review was conducted because the Ombudsman had concerns about the way in which our service operated. It is important that a public body is open and accountable to feedback from agencies like Ombudsman Victoria and the public in general. I welcomed this feedback and used it as a roadmap for improving our operations.

The Ombudsman identified very significant areas where improvement was needed. My office is working with staff from Ombudsman Victoria to implement a number of initiatives in response to the Ombudsman’s recommendations. Some of these initiatives are discussed below.

Minimising delaysThe Ombudsman raised concerns about delays in complaint handling, in particular, the amount of time taken to finalise complaints. I considered this to be a serious concern. I understand that problems between lawyers and clients may cause unnecessary stress for both the lawyer and client and if unresolved

may further aggravate matters between the two parties. It is therefore important that these matters are resolved as quickly as possible by my office and the parties involved.

During the year, we implemented several initiatives to help reduce delays in complaints. In April 2010, we introduced a new process for dealing with some complaints where we had previously commenced a full disciplinary investigation, which was both time consuming and frustrating for complainants where no prosecutions followed. I identified that complaints which raise service related issues were being unnecessarily treated in this way, for example complaints about lawyers not responding to clients or lawyers causing unnecessary delays in legal matters. I felt that these complaints could easily be resolved through informal dispute resolution. This new approach allows us to deal with service related complaints in a quick and efficient manner, while directing more time and resources towards complaints which raise serious issues and which do require significant resources for a successful formal investigation.

We also established a project team to assess complaints received prior to the introduction of this initiative to identify cases that could have been initially resolved through this process. The team is comprised of senior complaint handlers who are responsible for finalising complaints in keeping with this new process.

Expanding our investigation techniquesThe Ombudsman identified the need to adopt new mechanisms in our investigations process. Previously, the extent of our investigation methods primarily involved gathering evidence through written correspondence. We have now adopted new mechanisms

I am pleased to present the 2009–10 Annual Report of the Legal Services Commissioner.

The Commissioner’s report


such as visiting lawyers at their offices or in our office to inspect files and meeting with consumers and relevant witnesses. I believe these new techniques will enable my staff to gain a greater awareness and understanding of the issues prompting complaints and more importantly, help to expedite the investigations process. We are also adopting streamlined ways of gathering information and providing greater early guidance to complainants about the likely outcome of any investigation.

LanguageThe Ombudsman highlighted the need to improve our communication with lawyers and consumers, with a particular emphasis on communicating in plain English. The Ombudsman was concerned that our correspondence was unclear and confusing for the reader. I felt this was a very valid concern. As a Government agency, we have an obligation to provide information that is clear and comprehensive. Information that is conveyed in legalistic terms can create more work by having to explain legal definitions to consumers. In addressing this issue, my staff received training on writing in plain English. A review of our complaints templates was also undertaken to ensure our correspondence was prepared in plain English. I believe the correspondence produced by my staff has improved significantly, and further work is being conducted to ensure we communicate in the best way possible with complainants and lawyers.

Future work with Ombudsman VictoriaThe feedback and advice provided by the Ombudsman and his staff was invaluable. We have taken on board the Ombudsman’s comments and embedded the principles of continuous improvement into our everyday operations. The Ombudsman and his staff have indicated that we have now satisfied the Ombudsman’s concerns. We do, however continue to meet regularly with Ombudsman Victoria to identify further improvement for our operations.

Complaint handlingWe received 2,211 new complaints in 2009–10. This is a 6% increase compared to the number of new complaints received in 2008–09. Largely consistent with previous years, 75% of the complaints raised potential disciplinary matters, while a half related to civil disputes. 23% of complaints related to family law, 10% related to commercial law and a further 10% concerned probate and estate matters. My office finalised 1,796 complaints during the year, 75% of which contained potential disciplinary complaints. We finalised fewer complaints in the full financial year compared with the previous year, however the work done in early 2010 to change the way we deliver our service has already begun reducing delays and increased our clearance rate.

Our education activitiesOur education program for consumers and lawyers was busier than ever. We delivered 24 ethics workshops for Victorian lawyers compared with 15 in 2008–09. We also delivered 16 lectures for over 1,000 students at Victorian universities, compared with nine lectures in 2008–09. My staff met with over 80 community support groups during the year to raise awareness of the complaints scheme. We also met with representatives from six community legal services and six specialist legal services to provide information on consumers’ rights when working with lawyers and seek their feedback on consumer issues relating to the client-lawyer relationship.

National Legal Profession Reform ProjectIn 2009, the Council of Australian Governments (COAG) commenced a project to create a national system for regulating the legal profession in Australia. My office actively participated in the consultation process throughout 2009–10, which included preparing submissions in response to the draft legislation produced by the COAG National Legal Profession Reform Taskforce.

Our relationshipsDuring the year, we focused on enhancing our relationships with interested groups, delegates and the interstate legal regulators. The Law Institute of Victoria and Victorian Bar play an important part in helping us to handle complaints about lawyers and barristers through their roles as Prescribed Investigatory Bodies. It is therefore important that we maintain a positive relationship with these agencies and ensure they have adequate support and resources to carry out the complaint handling functions that they perform on my behalf. My staff and I met regularly with staff from the Law Institute and Victorian Bar Ethics Committee during the year to discuss complaint handling matters. It is also important that we maintain positive relationships with the profession, to ensure complaints are resolved with their full cooperation. During the year, my office met with representatives from several law associations to provide information about the role of my office and identify any issues affecting Victorian lawyers. I also met with the managing partners and executive staff from a range of mid-tier and large law firms to learn about some of the issues encountered by lawyers at this level. I found these meetings to be very valuable and intend to meet with more firms in 2010–11.

Outlook for 2010–11I would like to thank my staff for their hard work and commitment throughout the year. I would also like to thank the staff from the Law Institute and Bar for assisting us with carrying out our complaint handling function. I look forward to working with my staff, members of the profession and consumers of legal services in 2010-11 to help maintain the very high standards of legal services provided in Victoria.

Michael McGarvieLegal Services Commissioner

Significant achievements and events 5

Significant achievements and events

Michael McGarvie was appointed Legal Services Commissioner following the resignation of the previous Commissioner, Victoria Marles. Ms Marles was Commissioner between December 2005 and October 2009. Mr McGarvie was Acting Commissioner from October 2009 until he was officially appointed to the role on 22 December 2009.

The Legal Services Commissioner worked with staff from Ombudsman Victoria to improve the complaints service. The Ombudsman provided many recommendations around reducing delays in complaint handling and improving communication with lawyers and consumers. The Legal Services Commissioner implemented a range of initiatives in response to these recommendations. The Ombudsman has confirmed that the Legal Services Commissioner’s response is appropriately addressing the concerns previously expressed.

The Legal Services Commissioner adopted a new process for dealing with complaints. The Legal Services Commissioner reviewed the complaints process and determined that service related issues could be resolved through informal dispute resolution. This new approach will enable the Legal Services Commissioner to help consumers and lawyers resolve less complex issues, while allocating more time and resources towards dealing with serious disciplinary matters. See page 11 for more information.

Two new teams were established in the complaints and investigations unit. The Rapid Resolution Team was established to deal with complaints that raise service related issues such as miscommunication or delays. Another project team was established to deal with older complaints that had already been received by the office and were being formally investigated, but would have leant themselves to being resolved through the same process being used by the Rapid Resolution Team. See page 11 for more information.

The Legal Services Commissioner received 2,211 complaints. Half of the complaints were classified as only raising a possible disciplinary issue, 25% were straight civil disputes and 25% involved both a civil and disciplinary issue. See page 9 for more information.

The Legal Services Commissioner delivered 24 ethics workshops to 918 legal practitioners. See page 19 for more information.

The Legal Services Commissioner conducted 10 outreach visits through the Community Outreach Program. See page 21 for more information.

Legal Services Commissioner staff met with representatives from 81 community support groups to provide information about the complaints regime to consumers. See page 21 for more information.

The Legal Services Commissioner delivered 14 lectures to over 1,000 law students at five universities. See page 20 for more information.

Legal Services Commissioner staff participated in the consultation process as part of the National Legal Profession Reform Project. The Project seeks to establish a national system for the regulation of the legal profession in Australia. The Legal Services Commissioner prepared a number of submissions in response to the reforms. See page 26 for more information.

From the pre-complaint stage until the complaint is finalised, the Legal Services Commissioner is committed to assisting persons with their complaints and keeping them informed along the way. We understand that the complaint handling process may be confusing and aim to make it as accessible and transparent as possible. This section discusses our performance in handling complaints during 2009–10. The data featured in this section is a summary of complaints handled by the Legal Services Commissioner in 2009–10. Refer to Chapter 5 for full details of complaints handled during the reporting year.

EnquiriesThe Legal Services Commissioner provides a free enquiries service to assist members of the public with preliminary enquiries. Enquiries can be made by telephone, in writing, by email or in person. As part of

this service, where needed, an interpreter can also be arranged to assist persons with making an enquiry. The enquiries service is the first important step in the complaint handling process. It is at this point that a person can be advised about the jurisdiction of the Legal Services Commissioner and the complaint handling process more generally. This may result in the person making the enquiry being provided with a complaint form and may lead to a formal complaint being lodged.

Alternatively, the enquiries service may assist the person making the enquiry to resolve their issues with their lawyer. For example, a caller may ask about their entitlement to receive their file back from their lawyer, and then may be better able to achieve this knowing when a lawyer can and cannot hold onto a file. In the course of an enquiry, a person may also be advised that the nature of their complaint

does not fall within the jurisdiction of the Legal Services Commissioner. Under these circumstances, the person will be advised about what other options may be available to help them; for example, where they can seek assistance with their complaint. This referral service assists in streamlining the complaints process while ensuring members of the public are fully informed.

Enquiry outcomesThe Legal Services Commissioner received 5,202 enquiries during 2009–10. This is slightly lower than the number of enquiries received in the previous year, although the number received in the previous year was a significant increase on earlier years due in part to the Law Institute of Victoria ceasing to offer an enquiries service. The number of complaint forms distributed through the enquiries service increased by 21%. These forms are also available on

6

01Chapter

Our performanceThis Chapter discusses the Legal Services Commissioner’s performance in carrying out our key functions during the 2009–10 reporting year.

Handling complaintsThe Legal Services Commissioner has a statutory obligation to handle complaints about legal practitioners, including disputes between clients and law practices or legal practitioners, in a timely and effective manner.

Chapter One Our performance 7

the Legal Services Commissioner’s website which also provides similar information about how to make a complaint about a lawyer.

Complaints

How does the Legal Services Commissioner deal with complaints?Complaints must be made in writing. Once a complaint is received, the complaint is assessed by the Legal Services Commissioner to determine whether we have power to handle the complaint, and how it should be handled. If it is one that the Legal Services Commissioner has power to handle, then we will usually send a copy to the lawyer to ask them to respond to the issues in the complaint, or in certain circumstances may contact the lawyer directly first. Where the Legal Services Commissioner considers that the complaint raises a civil dispute (a complaint about costs, financial loss or any genuine dispute), then the Legal Services Commissioner will usually try to assist the complainant and the lawyer to resolve the dispute.

If the complaint is about a lawyer’s behaviour, then we will consider whether the complaint raises issues

that might warrant taking disciplinary action against the lawyer. If that is the case, the Legal Services Commissioner may investigate the complaint. If the complaint involves a behavioral or servicing issue not involving serious misconduct then we will try and provide guidance, explanation or see if the issue can be resolved through discussions with the complainant and the lawyer, over the phone or in person. All complaints about a lawyer’s behaviour have traditionally been classified as a disciplinary complaint.

Types of complaints handled by the Legal Services CommissionerThe Legal Services Commissioner may receive a civil complaint (also called a civil or costs dispute) or a disciplinary complaint. Some complaints contain a combination of both, and are sometimes referred to as mixed complaints. A person who makes a complaint is not required to identify the type of complaint they are making, but they do have to be specific about what they are complaining about rather than just making general observations. Our complaint handlers critically evaluate each complaint to determine how the complaint should be handled.

Civil complaintsA civil complaint involves a civil dispute. A civil dispute is any one of the following:

• a costs dispute between a legal practitioner or law practice and client in relation to legal costs not exceeding $25,000;

• a claim that a person has suffered a pecuniary loss as a result of an act or omission by a law practice or legal practitioner (a financial loss or pecuniary loss dispute); or

• any other genuine dispute between a person and a law practice or legal practitioner.

Generally speaking, only a client of a lawyer can make a civil complaint, as opposed to a disciplinary complaint, which generally can be made by anyone.

Disciplinary complaintsA disciplinary complaint raises issues that may warrant taking disciplinary action against the lawyer, and may therefore lead to a formal disciplinary investigation. If the complaint concerns something less than serious misconduct then we may try to mediate a resolution early on.

Mediated conduct complaints are included in the figures in this Report for disciplinary complaints given the way they have historically been handled, and the figures for disciplinary complaints might better be expressed as potential disciplinary complaints.

Complaints about service issues

The Legal Services Commissioner often deals with complaints about service related issues. Examples of service related issues include:

• lawyers not responding promptly to communication;

• delays in legal matters caused by lawyers; or

• direct or impolite behaviour or language used by the lawyer.

A new method of handling these types of complaints was introduced in April 2010. It operates for cases where no serious misconduct is alleged and seem capable of resolution.

Figure 1: Enquiries received by the Legal Services Commissioner

Figure 8: Practitioners by position in an entity

5,811 (35%)

Complaint form sent

Information provided–no further

action taken

Referral to other body

No jurisdiction

2008-09

Total = 5,456

2009-10

Total = 5,202

2007-08

Total = 4,290

2,590 (50%)2,142 (40%)

1,335 (31%)

1,666 (32%)

2,450 (44%)2,018 (47%)

899 (17%)853 (15%)

929 (21%)

47 (1%)11 (1%)8 (1%)

NO. OF ENQUIRIES

0 500 1,000 1,500 2,000 2,500 3,000


“Case StudyDisciplinary Complaint

Lawyer acting without instructions — reprimanded by Legal Services CommissionerThe lawyer in this case acted for many years for a small family company in relation to property transactions. The lawyer was both personally and professionally involved with the two directors of the company, a husband and wife partnership. The lawyer was however closer to the husband, with whom he played golf each weekend. At some point the husband and wife separated. The wife then sent a letter to the lawyer instructing him not to continue acting for the company.

By telephone, the lawyer contacted the husband about whether or not he should continue acting for the company given the wife’s instructions to him. The husband told the lawyer that he should continue with his work and also specifically instructed him to proceed with a particular conveyance he had already commenced for the company. When the lawyer queried whether this was appropriate, the husband told the lawyer that the wife was only ever a director in name.

On hearing that the lawyer had continued with a conveyance for the company, the wife made a complaint to the Legal Services Commissioner. The Legal Services Commissioner considered that the complaint raised disciplinary issues and decided to investigate the conduct of the lawyer. The investigation involved confirming the company details, seeking information from both the husband and wife in the matter, as well as obtaining an explanation from the lawyer.

The Legal Services Commissioner formed the view that the lawyer’s conduct in acting for a company without the permission of both directors involved acting for a client without instructions. This type of conduct is generally improper.The Commissioner was therefore satisfied that there was a reasonable likelihood that the Victorian Civil and Administrative Tribunal (VCAT) would find the lawyer guilty of unsatisfactory professional conduct. With the consent of the lawyer, the Commissioner decided to reprimand the lawyer (one of the alternative disciplinary actions available to the Commissioner where unsatisfactory professional conduct is found. See page 16 for more information about alternative disciplinary actions).

“Case StudyCivil Complaint (Costs Dispute)

Client unhappy that lawyer charged for phone calls and reviewing documents without indicating feesTracey wanted to make a claim in relation to an $85,000 loan she had made to her ex-husband. Tracey initially rang the lawyer with an outline of her claims and subsequently sent through an email with over 30 pages of relevant documents attached. In that email, Tracey enquired as to the costs of going ahead with the claim. The lawyer reviewed the documents and advised Tracey over the phone in relation to proceeding with the claim.

Tracey then provided a further 20 pages of information and the lawyer again advised Tracey over the phone. The lawyer sent Tracey a quote of the legal costs that would be involved in proceeding with the matter. As the lawyer did not hear back from Tracey for some time after sending the quote, he sent Tracey an account for $565.16 for the work so far completed.

Tracey believed this bill was unacceptable and informed the lawyer’s office that she would not be paying that much for what she believed was merely a discussion. Tracey was concerned that the lawyer had never indicated his fees to her over the phone or in any of their emails and that he had not correctly recorded her address.Tracey made a complaint to the Legal Services Commissioner. Tracey was advised that she would need to lodge the unpaid $565.16 with the Legal Services Commissioner before the office could handle her complaint. After doing so, the Legal Services Commissioner attempted to resolve the dispute between Tracey and the lawyer.

The lawyer could not remember specifically discussing costs with Tracey before reviewing the documents although noted that it was normal practice to do so. The parties settled their dispute by agreeing that Tracey should pay $282.58, which was half of the amount originally claimed by the lawyer.


Complaints about professional conduct

A true disciplinary complaint raises serious allegations about a lawyer’s professional conduct that, if established, would amount to unsatisfactory professional conduct or professional misconduct. Unsatisfactory professional conduct is defined to include conduct of a legal practitioner 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 legal practitioner.

Professional misconduct is more serious. It is defined to include:

• unsatisfactory professional conduct of a legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

• conduct of a legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established justify a finding that the legal practitioner is not a fit and proper person to engage in legal practice.

Complaints containing both a civil dispute and a disciplinary complaint — mixed complaintsA mixed complaint is a complaint which contains both a civil complaint and a disciplinary complaint.

New complaintsThe Legal Services Commissioner received 2,211 new complaints in 2009–10. This is approximately 6% more than the previous year. Consistent with previous years, disciplinary complaints outnumbered civil complaints in 2009–10. The ratio of civil to disciplinary complaints is not unexpected, given that any person may make a disciplinary complaint but only certain persons may make a civil complaint.

In previous years, when a complaint raised both a costs dispute and a conduct complaint the complaint was categorised as a disciplinary complaint only if the costs issue was dismissed immediately. Recording changes accompanying a new case management system suggests we have more civil complaints this year, however the variation relates more to the counting change than to a true increase.

“

Case StudyMixed Complaint

Lawyer failed to provide itemised bill and client disputed bill Maria engaged a lawyer to assist her in a negligence claim. Forty days after receiving a bill from the lawyer for $7,000 for work done on the matter, Maria requested an itemised bill so that she could determine whether or not to dispute the bill. When the itemised bill was not forthcoming within 30 days, Maria made a complaint to the Legal Services Commissioner claiming that her lawyer had failed to provide her with an itemised bill and also disputing the $7,000 bill.

The Legal Services Commissioner considered that Maria’s complaint raised both disciplinary issues (failure to provide an itemised bill) and a costs dispute. The Legal Services Commissioner asked Maria to lodge the unpaid amount of the disputed costs with the Commissioner. This is a requirement under the Legal Profession Act 2004, and failure to comply with the requirement without evidence of hardship results in dismissal of the costs dispute. The Legal Services Commissioner also sent a copy of the complaint to the lawyer for their response.

The lawyer then explained to the Legal Services Commissioner that an itemised bill had not been prepared because the request for the itemised bill was received 30 days after the bill was given to Maria. Under the Legal Profession Act 2004, a client has only 30 days to request an itemised bill.

In this case, Maria had not realised that a client was subject to a time limit in requesting an itemised bill. After this was explained to Maria, Maria decided to withdraw the disciplinary part of her complaint but continue with the costs dispute.As Maria had lodged the unpaid disputed costs with the Legal Services Commissioner, the Commissioner then attempted to resolve the costs dispute between Maria and her lawyer. This involved conveying offers of settlement between the parties. In this case, the lawyer also decided to provide Maria with an itemised bill so as to encourage a settlement of the dispute. After Maria received the itemised bill, which was higher than the original bill, Maria decided to accept the lawyer’s offer to settle the dispute and pay legal costs in the amount of $5,500.


Civil complaintsWhere the Legal Services Commissioner considers that a complaint raises a dispute about costs or financial loss or any other genuine dispute, then the Legal Services Commissioner may assist the parties to resolve the dispute. The Legal Services Commissioner may do this in one or more of the following ways:

• informal dispute resolution, which often involves communicating offers of settlement between each party over the telephone, by email, in writing, or in person;

• referring the dispute for formal mediation;

• in the case of a costs dispute, arranging for a non-binding assessment of the costs; and

• taking any other action the Legal Services Commissioner considers necessary to assist the parties to reach agreement or an outcome that is acceptable to both parties.

Where the parties are unable to reach agreement, then the Legal Services Commissioner will write to the parties and advise them of their rights to apply to VCAT to resolve the dispute. Applications must be made to VCAT within 60 days of receiving the notice.

Outcomes of civil complaintsThe Legal Services Commissioner finalised 452 civil complaints during 2009–10. Of these, the Legal Services Commissioner had power to handle only 278 of these complaints. The other 174 complaints were outside of the Commissioner’s jurisdiction, for example the complaint was made

outside of the required time limit, the complainant failed to lodge costs with the Legal Services Commissioner or the practitioner had already commenced legal proceedings against the client to recover costs.

Where the Legal Services Commissioner had power to resolve the complaint, the Commissioner helped the parties resolve the dispute in 78% of cases. All of the civil disputes resolved by the Legal Services Commissioner during the year occurred without recourse to a formal mediation process. Under the Legal Profession Act 2004, mediation

is a formal process where an independent mediator is appointed to mediate the dispute, at no cost to the parties. This service is rarely used.

Where the parties are unable to resolve the dispute with the assistance of the Legal Services Commissioner, they may apply to VCAT to determine the dispute. Unlike the Legal Services Commissioner, VCAT has power to hear and make a binding decision about the dispute, and make orders as to who should pay the costs and how much money should be paid. The Legal Services Commissioner has no role before VCAT with respect to a civil dispute.

See Figures 30, 34 and 35 in Chapter 5 for more information about new complaints

Figure 2: New complaints received

2008-09

Total = 2,057

2009-10

Total = 2,211

Civil only

Disciplinary only

Mixed

All Civil

All Disciplinary

0 500 1,000 1,500 2,000

2007-08

Total = 2,033


5,811 (35%)

568 (25%)539 (26%)

449 (22%)

1,094 (50%)1,196 (58%)1,232 (61%)

549 (25%)322 (16%)352 (17%)

1,117 (51%)861 (42%)

801 (39%)

1,643 (74%)1,518 (74%)

1,584 (78%)

NO. OF COMPLAINTS

See Figure 38 in Chapter 5 for all civil dispute outcomes

Figure 3: Civil dispute outcomes where the LSC had the jurisdiction to handle the dispute

2008-09

Total = 321

2009-10

Total = 278Dispute settled between practitioner & client

Dispute was unable to be settled & parties were advised of their

right to apply to VCAT

0 50 100 150 200 250

2007-08

Total = 305


5,811 (35%)

218 (78%)

234 (73%)216 (71%)

60 (22%)87 (27%)89 (29%)

NO. OF DISPUTES


In 22% of cases, the Legal Services Commissioner was unable to settle the civil dispute and advised the parties of their right to apply to VCAT.

One of the unique features of the civil complaint handling process is that where a person makes a complaint involving a costs dispute, that person must lodge the unpaid amount of legal costs with the Legal Services Commissioner within 28 days of making the complaint. The Legal Services Commissioner may determine that a complainant need not lodge a disputed amount, or may lodge a lesser amount, if satisfied that lodging the costs would cause the complainant undue hardship. The Legal Services Commissioner must dismiss a complaint if the complainant fails to comply with these requirements. During the year, the Legal Services Commissioner received $659,326.68 in disputed costs. This represents only a proportion of the total amount of costs in dispute, as costs may have already been paid to the lawyer or the Legal Services Commissioner may have determined that the unpaid costs need not be lodged.

Disciplinary complaints

Complaints about service issuesWhere a complaint raises service related issues, then the Legal Services Commissioner will try to resolve the complaint through informal dispute resolution, for example, through discussions between the parties over the phone or in person. This new process was introduced in April 2010.

After reviewing the existing complaints procedure, the Legal Services Commissioner determined that service related issues could be more efficiently resolved through informal dispute resolution. A new team known as the Rapid Resolution Team was established to deal with these matters. For example, where a client makes a complaint about a lawyer failing to return their calls, a member of the Rapid Resolution Team will contact the client and lawyer with the intention of resolving the matter without the need for a formal investigation.

Through this process, the Legal Services Commissioner may, for example, suggest that the lawyer respond to the client in a timelier manner or apologise to the client for the oversight. The Legal Services Commissioner also established a project team to review older existing complaints to determine whether they could be finalised through this process. This new approach has enabled the Legal Services Commissioner to help consumers and lawyers resolve less serious issues, while allocating more time and resources towards complaints which raise serious issues and do require formal investigation.

Although this process has only been in place for a short time, the Legal Services Commissioner is already seeing some positive results. A third of all complaints closed between April and June 2010 were resolved by the new Rapid Resolution Team.

Figure 4: Process for handling disciplinary complaints

Investigation of complaint

Legal Services Commissioner receives

written disciplinary complaint

LSC attempts to resolve complaint through informal dispute

resolution (i.e. complaint resolved by Rapid Resolution Team)

Summarily dismiss

complaint

Complaint Dismissed (Section 4.4.14, dismissal

of a complaint)

Unsatisfactory professional conduct

finding reasonably likely

Professional misconduct finding reasonably likely

Practitioner pays

compensation

Reprimand or caution

legal practitioner

Take no further

action

Refer to VCAT


“

“Case StudyUnrepresented party ignored by lawyer for other sideLi was involved in divorce proceedings with his former wife. Self-represented, he contacted the wife’s lawyer to discuss the case. The lawyer refused to speak to him on the basis that he was self-represented. Li tried to contact the lawyer on several more occasions; however the lawyer did not return his calls.

Li lodged a complaint with the Legal Services Commissioner, claiming the lawyer would not deal with him because he was self-represented and that the lawyer had been intimidating towards him.

A member of the Rapid Resolution Team contacted Li to discuss the complaint. During the conversation, Li decided it would be in his best interests to seek legal representation. The staff member contacted the lawyer to inform him of Li’s decision to engage a lawyer but reminded him that he cannot force representation on another party. He also reminded him that it is good practice to return the calls of the other party.

The lawyer agreed with the staff member on both points. Li was satisfied with the lawyer’s response.

“

Case StudyExpert witness chasing paymentDr Harris was approached by a lawyer to give evidence in legal proceedings. The lawyer advised Dr Harris that the case would be heard over two days; however she would only be required to give evidence on the second day. The lawyer told Dr Harris she was confident the matter would settle on the first day and that she would only be reimbursed for her time if she gave evidence. The lawyer told her the proceedings may change unexpectedly, but would notify her of any sudden changes.

The matter did in fact settle on the first day. Accordingly, the lawyer contacted Dr Harris and told her she was no longer required to give evidence on the following day. Annoyed that she had cleared her patient appointments and spent considerable time preparing

for the case, Dr Harris sent an invoice to the lawyer seeking reimbursement for her time. The lawyer refused to pay the amount on the basis that Dr Harris did not give evidence as previously discussed.

Dr Harris lodged a complaint with the Legal Services Commissioner. After discussing the matter with a member of the Rapid Resolution Team, Dr Harris said that she would withdraw the complaint if the lawyer paid the bill in full. A member of the Rapid Resolution Team said he would put the offer to the lawyer and informed her that if the lawyer declined, then she would need to initiate legal action to recover the costs.

The lawyer offered to pay only half of the bill. Dr Harris accepted the offer and this resolved her complaint.

Examples of complaints resolved by the Rapid Resolution Team

Case StudyParty trying to locate copy of will Dinesh was trying to locate a copy of his late brother’s will. He contacted the law firm that dealt with his late mother’s estate to confirm whether they had his brother’s will. Dinesh spoke to the office manager who said she would search the firm’s records. Two weeks later, Dinesh left a message for the office manager to provide him with an update on the status of her search. She did not return his call. Dinesh decided to engage a lawyer to help him find the will. The lawyer wrote to the law firm, requesting they search their records. The law firm did not respond to the lawyer’s request. Dinesh then lodged a complaint with the Legal Services Commissioner about the firm’s failure to communicate over the matter.

A member of the Rapid Resolution Team contacted the firm and relayed Dinesh’s request once again. The staff member told a lawyer at the firm that he hoped the matter could be resolved promptly and without investigation.

The lawyer responded that day and promised to look through their deeds to identify whether they had the brother’s will. A short time later, the lawyer contacted the Legal Services Commissioner and confirmed that they did not have the brother’s will. Dinesh was satisfied that his concerns had been resolved.


Complaints about professional conductWhere a complaint raises issues about the professional conduct of a lawyer, the Legal Services Commissioner may investigate the conduct of the lawyer. The Legal Services Commissioner decides the scope of the problem and the extent of the investigation. Where the Legal Services Commissioner considers that the complaint raises potentially serious issues about the lawyer’s behaviour, then the investigation may become extensive and involve seeking evidence in documents or from witnesses. The Legal Services Commissioner may undertake the investigation or can instead refer the investigation to a Prescribed Investigatory Body (PIB), which currently means either the Law Institute of Victoria or the members of the Ethics Committee of the Victorian Bar.

Where this occurs, the professional associations must report back to the Legal Services Commissioner. Decisions following an investigation are to be made by the Legal Services Commissioner.

Before a matter is delegated to the professional associations or an investigation is referred to a PIB, preliminary work is carried out by the Legal Services Commissioner. The Legal Services Commissioner is required to fund the PIBs and delegates for the work that they do on the Commissioner’s behalf. The arrangement is flexible.

During 2009–10, the Legal Services Commissioner commenced 749 investigations, 23% of which were referred to the PIBs. This is shown in Figure 5.

Exploring new investigation techniquesDuring 2009–10, the Legal Services Commissioner adopted new techniques for investigating complaints. In the past, staff conducted investigations primarily by gathering evidence through written correspondence. Relying on this in all cases however, led to delays in handling complaints. Sometimes this created a barrier to resolving the issue at the heart of the complaint.

On other occasions it led to the generation of a lot of written material which took time for everyone to consider, again sometimes straying from the real issue. In many cases this can be counter-productive, and given the resources it requires can lead to unnecessary delays in the investigations process, and often contributes to a failure to keep complainants and lawyers informed about the progress of an investigation. The Commissioner now encourages face-to-face meetings with lawyers and consumers to gather evidence and discuss issues in complaints. This has the benefit of avoiding misunderstandings and encouraging open communication. Staff are able to use different ways of keeping lawyers and consumers updated on the progress and in seeking information, by embracing different approaches. The aim is to help reduce delays in finalising complaints and bring about quicker outcomes for complainants and lawyers. The secondary effect of this contact is to improve communication and understanding between lawyers and the staff of the Legal Services Commissioner.

Engaging the assistance of junior barristers to compress workloadsSome complaints may take months to finalise particularly if there are large amounts of written information and evidence that has been gathered and needs to be considered. In 2009–10, the Commissioner engaged the

services of several junior barristers to review, summarise and analyse the information obtained in several complex complaints to assist in finalising them. This new project is likely to assist staff in determining more complaints in a shorter timeframe, leading to greater capacity in handling and progressing complaints.

Outcomes of disciplinary complaintsThe Legal Services Commissioner finalised 923 disciplinary complaints during 2009–10. In 28% of cases, the Legal Services Commissioner determined that VCAT would be unlikely to find the practitioner guilty of a disciplinary breach. In 7% of cases, the Legal Services Commissioner was satisfied that VCAT would be likely to find the practitioner guilty of a disciplinary breach. In 23% of cases, the complainant withdrew their complaint. This often happens in complaints which have been traditionally classified as disciplinary complaints but where the issue is actually service related. In these cases the complainant often no longer wishes to maintain a complaint when the issue within the complaint has been resolved. The increased focus on this in 2009–10 shows in these figures.

Figure 6 shows the main outcomes of disciplinary complaints for 2009–10 and previous years. See Figure 39in Chapter 5 for full details of disciplinary complaint outcomes.

Figure 5: Investigations commenced by the LSC and referred to PIBs

See Figures 31 and 32 in Chapter 5 for further details about investigations.

2008-09

Total = 652

2009-10

Total = 749

Investigations by LSC

Investigations referred to PIBs

0 100 200 300 400 500 600

2007-08

Total = 830


5,811 (35%)

581 (77%)528 (81%)

567 (68%)

168 (23%)124 (19%)

263 (32%)

NO. OF INVESTIGATIONS


Applications to VCATFollowing an investigation of a disciplinary complaint about the professional conduct of a lawyer, the Legal Services Commissioner is required to apply to VCAT for an order against the lawyer where the Commissioner is satisfied that VCAT would find the lawyer guilty of professional misconduct.

The Legal Services Commissioner may also apply to VCAT for an order against a lawyer where following an investigation the Legal Services Commissioner is satisfied that VCAT would find the lawyer guilty of unsatisfactory professional conduct (although there are other options to consider where this is the case, see alternative disciplinary actions on page 16).

During 2009–10, the Legal Services Commissioner made 22 applications to VCAT: 21 applications were made under the Legal Profession Act 2004; and one application was made under the old Legal Practice Act 1996. The Legal Services Commissioner made 70 applications to VCAT in 2008–09. The number of disciplinary applications has decreased because there were fewer applications in 2009–10 relating to failure to respond matters.

Under the Legal Profession Act 2004, lawyers are required to respond to the Legal Services Commissioner’s requests for information or for an explanation in relation to a complaint. The Legal Services Commissioner can make an application to VCAT against lawyers who fail to respond. Although this is an important power in the investigation process, pursuing lawyers through this avenue is a time-consuming process, and can be counter-productive. Taking a lawyer to VCAT for not answering correspondence distracts from the original purpose of the request for information.

In 2009–10, the Legal Services Commissioner adopted a new approach for dealing with lawyers who do not respond to requests, which involves organising face-to-face or phone meetings to discuss the lawyer’s concerns over responding to the complaint. In some cases, the Commissioner may contact the lawyer personally to seek their cooperation with the complaints process. This has resulted in fewer disciplinary applications to VCAT. In 2009–10, there were 15 applications involving failure to respond matters compared to 47 in 2008–09.

Outcomes of VCAT ApplicationsWhere the Legal Services Commissioner makes an application to VCAT, Counsel may be briefed to appear on behalf of the Legal Services Commissioner, or a member of staff may appear on behalf of the Legal Services Commissioner. A total of 43 applications were heard by VCAT during 2009–10. The outcomes of these applications, including the type of charges and orders made are listed in Figure 45 of Chapter 5.

There were 80 days where the Legal Services Commissioner was a party before VCAT. This involved 53 days where staff appeared for the Legal Services Commissioner, and 27 days where Counsel appeared. This includes eight days where both Senior and Junior Counsel appeared. By using the Legal Services Commissioner’s own staff, the Legal Services Commissioner is better able to efficiently and effectively handle certain matters before VCAT.

Figure 6: Main outcomes of disciplinary complaints

Refer to Figure 39 in Chapter 5 for all disciplinary complaint outcomes.

2008-09

2009-10

LSC formed view that VCAT unlikely to find practitioner guilty

of a disciplinary breach

Complainant withdrew complaint

Complaint lacked legal substance (eg. alleged conduct was not

inappropriate)

Complaint not one that the LSC has power to deal with (eg. involves

question of law for a court)

Complainant failed to provide further information

when requested

LSC formed view that complaint required no further investigation (eg.

preliminary assessment adequate)

LSC formed view that VCAT likely to find practitioner guilty of a

disciplinary breach

0 100 200 300 400 500

2007-08


5,811 (35%)

254 (28%)345 (31%)

421 (37%)

211 (23%)161 (15%)

121 (11%)

104 (11%)170 (15%)

153 (13%)

89 (9%)115 (10%)

95 (8%)

75 (8%)108 (10%)

75 (7%)

67 (7%)43 (4%)

33 (3%)

64 (7%)77 (7%)

49 (4%)


VCAT Decisions

Legal Services Commissioner v Anon VCAT [2010]Section 4.4.11 breach; Re-hearing under s 4.4.21The lawyer failed to comply with the requirement made by the Legal Services Commissioner that he provide further information about a complaint made against him. A law firm had made a complaint against the lawyer after he failed to comply with a request made for files, original documentation and monies held by the lawyer on behalf of a former client.

The lawyer continued to maintain that the Commissioner had no power of investigation in regard to the money. The lawyer eventually gave an answer to the first question stating that his law firm had never received the money and therefore the further 22 questions were inapplicable.

The lawyer was charged and found guilty of professional misconduct for failure to provide a full written explanation. VCAT found the lawyer guilty of professional misconduct. VCAT ordered the lawyer to pay a fine of $1,000 to the Legal Services Board; to provide the Commissioner with written answers to the questions asked of the respondent; and pay the applicant’s costs, fixed at $7,798.20.

Legal Services Commissioner v D’Alessandro [2009] VCAT 1129Lawyer failed to honour undertakingThe lawyer was acting on behalf of a client who was involved in a dispute with her former de facto husband in relation to the division of property. An undertaking was given by the lawyer to hold the net proceeds of the sale in trust pending the resolution of the property dispute. This undertaking was varied to an undertaking to invest the net proceeds in a joint interest bearing deposit account.

The lawyer later wrote to the firm advising that the funds would not be invested, and that there would be a disbursement of funds to his client unless one of three alternatives set out in a previous letter was met. The firm advised that there was to be no release from the undertaking. The funds were never invested in a joint interest bearing account. The funds were placed in the lawyer’s firm’s trust account. No attempt was made by the lawyer to obtain a release from the undertaking given.

The Commissioner charged the lawyer with professional misconduct for failing to honour an undertaking given by him to another legal lawyer. The lawyer pleaded guilty. The disbursement of $4,157.23 from the trust account to the lawyer’s firm by way of legal fees was considered to be an aggravating factor. The lawyer was ordered to pay a fine of $4,000 to the Legal Services Board and the Commissioner’s costs in the sum of $3,357.60.

Legal Services Commissioner v Issac Brott (Legal Practice) (Legal Practice) 2008 (VCAT)

Issac Brott v Legal Services Commissioner (Legal Practice) 2009 (Full Court of Supreme Court);

Issac Brott v Legal Services Commissioner (Legal Practice) (2010) (High Court)Lawyer prepared and signed a false and misleading letter for his client that he knew would be produced and relied on in court.The lawyer’s client was involved in a matrimonial dispute. Upon his client’s request, the lawyer prepared and signed a letter, which was produced in the Family Court.

Justice Brown of the Family Court alleged that the lawyer provided a letter to the lawyer’s client to be used in order to seek an adjournment in the Family Court which he knew would be used for this purpose and which he knew was false and misleading. The conduct the subject of the complaint occurred in November 1997.

The Legal Services Commissioner took over the investigation, and commenced proceedings against the lawyer in VCAT for misconduct in relation to the letter. The lawyer was charged with knowing the letter was false and misleading.

VCAT rejected the lawyer’s reliance on advice from Counsel, which he used to justify the letter; because, while he believed Counsel’s advice to be sound when he wrote the letter, it did not alter the fact that he knew the letter was false and misleading. VCAT noted that ‘it is a basic precept of the legal profession that lawyers owe a duty of honesty and candour to the court’. VCAT ordered that the lawyer not be permitted to apply for a practising certificate before 4 January 2014 and pay the Legal Services Commissioner’s costs.

The lawyer appealed to the Court of Appeal, which determined that VCAT did in fact find that the lawyer knew the letter was false, and chose to justify the letter with reasoning that he knew to be ‘sophistry’. The Court confirmed VCAT’s view that any breach of a lawyer’s duty to the court goes to the heart of practising as a legal lawyer.

The lawyer applied to the High Court of Australia in respect of the Court of Appeal’s characterisation of his level of knowledge about the truthfulness of the letter at the time he wrote it. On 10 March 2010, the lawyer’s application for special leave to appeal to the High Court was dismissed.


Alternative disciplinary actionsWhere the Legal Services Commissioner determines that VCAT is likely to find a lawyer guilty of unsatisfactory professional conduct, the Legal Services Commissioner may apply to VCAT for an order against the lawyer or may instead take an alternative disciplinary action against the lawyer. The decision to take an alternative disciplinary action may be based on a number of factors, including:

• the lawyer’s circumstances, including the lawyer’s health, age, years of experience, and financial situation;

• whether the lawyer acknowledges his or her error and/or has shown remorse;

• whether the lawyer made a mistake and is unlikely to repeat the conduct;

• whether the lawyer cooperated during the investigation; and

• whether the conduct is systemic in nature, and affects, or has the potential to affect a class of persons.

Alternative disciplinary actions include:

• with the consent of the lawyer, reprimand the lawyer;

• with the consent of the lawyer, caution the lawyer;

• take no further action against the lawyer if satisfied that

— the lawyer is generally competent and diligent; and

— there has been no substantiated complaint (other than the complaint that led to the investigation) about the conduct of the lawyer within the last five years;

• where the complainant has requested a compensation order, require the lawyer to pay compensation to the complainant as a condition of deciding not to apply to VCAT in respect of the lawyer.

These alternative disciplinary actions are not available where the Legal Services Commissioner determines that VCAT is likely to find a lawyer guilty of professional misconduct. Where this occurs, the Legal Services Commissioner must apply to VCAT for an order against the lawyer.

In 2009–10, the Legal Services Commissioner took 68 alternative disciplinary actions under the Legal Profession Act 2004, arising from the 64 disciplinary complaints and the 13 mixed complaints where the Legal Services Commissioner formed the view that VCAT would be likely to find a lawyer guilty of a disciplinary breach. Figure 7 shows the outcomes of the alternative disciplinary actions taken by the Legal Services Commissioner.

Mixed complaintsA mixed complaint is dealt with using the civil complaint procedure and disciplinary complaint procedure. The Legal Services Commissioner closed 418 mixed complaints in 2009–10. The Legal Services Commissioner was satisfied in 13 mixed cases that the practitioner would be likely to be found guilty of a disciplinary breach. In 127 cases, the Legal Services Commissioner formed the view that VCAT would be unlikely to find the practitioner guilty of a disciplinary breach.

See Figures 40 and 41 in Chapter 5 for further details about the outcomes of mixed complaints.

Own motion investigationsThe Legal Services Commissioner may commence an investigation on the Commissioner’s own motion. The Legal Profession Act 2004 empowers the Legal Services Commissioner to investigate the conduct of a legal practitioner “if the Commissioner has reason to believe that the conduct may amount to unsatisfactory professional conduct or professional misconduct, even though no complaint has been made about the conduct or a complaint about the conduct has been withdrawn”. The power to commence an own motion investigation is an important one. It enables the Legal Services

Figure 7: Alternative disciplinary actions taken by the Legal Services Commissioner

LSC reprimanded practitioner

Practitioner found generally competent and diligent and

so no further action

LSC cautioned practitioner

Practitioner pays compensation as a condition of LSC not making a disciplinary application to VCAT

0 5 10 15 20 25 30 35 40

2008-09

Total = 81

2009-10

Total = 68

2007-08

Total = 56


5,811 (35%)

NO. OF ALTERNATIVE DISCIPLINARY ACTIONS

3037

27

913

5

2728

20

23

4


Commissioner to investigate conduct that has not attracted a complaint but is nonetheless improper or unsatisfactory. Sometimes a client may not realise that a lawyer has acted badly and should be investigated to protect consumers. Accordingly, the own motion power is a significant consumer protection power. An own motion investigation may be initiated in any one of the following circumstances (this list is not exhaustive):

• where a disciplinary complaint is withdrawn and the Legal Services Commissioner considers that the investigation should continue;

• following receipt of a trust account investigation report from the Legal Services Board;

• following receipt of a report by a Judge about a legal practitioner’s conduct in Court;

• following identification of improper conduct of a legal practitioner in the media;

• following identification of improper conduct in an investigation by the Legal Services Commissioner into some other conduct; and

• following receipt of a report by another agency such as the Office of Public Prosecutions about a criminal prosecution of a legal practitioner.

There may be other occasions where the Legal Services Commissioner is able to initiate an own motion investigation. As to when the Legal Services Commissioner will initiate an own motion investigation, see the Legal Services Commissioner’s own motion policy at www.lsc.vic.gov.au The Legal Services Commissioner cannot, however, commence an own motion investigation without some basis for it. There is a threshold requirement that must be met. The Legal Services Commissioner must be satisfied that there is reason to believe that the legal practitioner may have engaged in professional misconduct or unsatisfactory professional conduct. And so before an own motion investigation is formally commenced the Legal Services Commissioner undertakes a preliminary investigation.

The Legal Services Commissioner commenced 37 own motion investigations during the year, as well as 10 preliminary investigations. As at 30 June 2010, there were 70 open own motion investigation files, which includes the files opened during 2009–10 as well as the files opened in previous years. Refer to Figure 33 in Chapter 5 for more information about own motion investigations.

Finalised complaintsThe Legal Services Commissioner finalised 1,796 complaints during 2009–10, which included complaints received in previous years. As indicated in Figure 8, the number of complaints finalised by the Legal Services Commissioner decreased by 5% compared with 2008–09. The number of civil complaints finalised was fairly consistent with previous years. However, the Legal Services Commissioner finalised fewer disciplinary complaints compared with 2008–09.

Time taken to finalise complaintsFigure 9 shows the time taken to finalise complaints in 2009–10 compared with the time taken in previous years. The Legal Services Commissioner closed fewer complaints within a 30 day period and also within a 31 to 90 day period compared with previous years. The new complaint handling initiatives introduced this year may see more complaints finalised between 30 and 90 days in 2010–11. More than half of the complaints were finalised in a period of more than 120 days. Initiatives such as the introduction of the Rapid Resolution Team and engaging the assistance of junior barristers to summarise evidence are likely to lead to complaints being finalised faster.

Complaints outstandingThe Legal Services Commissioner is constantly receiving and handling complaints. Accordingly, there is never a point at which all complaints are finalised and closed. Figure 10 shows the number of complaints outstanding as at 30 June 2010 by complaint type. At the end of 2009–10, there were 1,515 complaints outstanding, as compared with 1,038 complaints in the previous year.

2008-09

Total = 1,893

2009-10

Total = 1,796

Civil

Disciplinary

Mixed (Civil & Disciplinary)

0 200 400 600 800 1,000 1,200

2007-08

Total = 1,893


5,811 (35%)

452 (25%)

534 (28%)

483 (26%)

923 (51%)

1,101 (58%)

1,153 (61%)

421 (24%)

258 (14%)

257 (13%)

NO. OF COMPLAINTS

Figure 8: Complaints finalised by the Legal Services Commissioner


Figure 9: Time taken to finalise complaints

DAYS SINCE RECEIPT OF COMPLAINTTOTAL<30 31–60 61–90 91– 120 >120

Civil Dispute

2009–10 119 (26%) 76 (17%) 51 (11%) 57 (12%) 152 (34%) 455

2008–09 117 (21%) 102 (19%) 81 (15%) 60 (11%) 174 (35%) 534

2007–08 124 (25%) 76 (16%) 59 (12%) 71 (15%) 153 (31%) 483

Disciplinary

2009–10 155 (16%) 112 (12%) 97 (10%) 81 (9%) 478 (51%) 923

2008–09 242 (22%) 140 (13%) 106 (10%) 88 (8%) 525 (48%) 1,101

2007–08 347 (30%) 145 (13%) 121 (10%) 110 (10%) 430 (37%) 1,153


2009–10 37 (9%) 26 (6%) 37 (9%) 47 (11%) 271 (66%) 418

2008–09 34 (13%) 34 (13%) 33 (13%) 20 (7%) 137 (53%) 258

2007–08 27 (10%) 24 (9%) 7 (2%) 22 (9%) 177 (69%) 257

Total

2009–10 311 (17%) 214 (12%) 185 (10%) 185 (10%) 901 (50%) 1,796

2008–09 393 (21%) 276 (15%) 220 (11%) 168 (9%) 836 (44%) 1,893

2007–08 498 (26%) 245 (13%) 187 (10%) 203 (11%) 760 (40%) 1,893

The number of complaints which have not been finalised after 120 days has increased over recent years. This continuing increase has been a matter of concern to the Legal Services Commissioner.

The implementation of the new case management system impacted upon the time taken to finalise complaints, due to staff receiving detailed training on the new system. It should also be noted that there were a number of vacancies in the complaints area at the end of 2008-09 that were not filled until

the 2009–10 reporting period. This affected the complaints figures as it took some time for new staff to learn the complaint handling processes and procedures.

Another factor is the increasing numbers of new complaints received. However the major cause of the increase has been the large amount of complaints which have become the subject of a full disciplinary investigation. These can be both time consuming, and lead to no real outcome for complainants where the issue complained of is more a service related issue.

The establishment of the Rapid Resolution Team and other initiatives are working to free up time to focus on the more limited number of serious matters which do require a full investigation, which in turn should also allow these complaints to be finalised faster.

Replacement of the case management systemThe successful implementation of a new case management system for the office of the Legal Services Commissioner was undertaken in 2009–10. As the case management system is the primary and central source of case data, it was a requirement that any replacement system provide up-to-date software technology but also be built to ensure that legislative compliance, both current and future, is able to be easily managed.

On 30 August 2009, all existing data was successfully migrated into the new system, which has been colloquially named CHAD (“Case Handling Application and Database”) and the system went “live”. The project came in on budget but over the timeline by approximately eight weeks. CHAD is meeting the requirements for acceptance by the Legal Services Commissioner and future enhancements and development are under consideration.

Figure 10: No. of outstanding complaints

2008-09

Total = 1,0382009-10

Total = 1,515

Civil

Disciplinary


0 200 400 600 800 1,000

2007-08

Total = 844

241

103

92

893

680

495

381

255

257

NO. OF COMPLAINTS

See Figure 44 in Chapter 5 for more details about complaints outstanding.


The Legal Services Commissioner has a dynamic education program, which promotes engagement with a diverse range of consumers and lawyers across Victoria. The Education and Outreach Adviser is responsible for coordinating this program.

Educating the legal profession

Educating lawyers on legal ethicsThe Legal Services Commissioner aims to improve the standard of legal services provided in Victoria. To achieve this, the Legal Services Commissioner conducts ethics workshops which aim to educate lawyers on appropriate standards of professional conduct. As a group, participants must determine the appropriate course of action in a range of scenarios that they may encounter in everyday practice. Legal Services Commissioner staff facilitate the discussions and advise participants on the acceptable outcomes in each scenario.

The workshops also enable the Commissioner to provide feedback to lawyers on key issues that have been identified through complaint handling. Victorian lawyers must undertake a minimum of ten hours of continuing professional development (CPD) training each year. One hour must involve training on the topic of legal ethics. Lawyers can satisfy this CPD requirement by attending the Legal Services Commissioner’s ethics workshops.

In 2009–10, the Legal Services Commissioner delivered 24 ethics workshops to approximately 918

legal practitioners throughout Victoria. Five of the 24 workshops were conducted in regional areas, including Bendigo, Echuca, Mildura, Warragul and Wonthaggi. A further four workshops were convened in metropolitan Melbourne, including Coburg, Greensborough, Ringwood and Werribee. The Legal Services Commissioner delivered a further 15 workshops for the following organisations:

• Australian Corporate Lawyers’ Association (two separate workshops)

• Deakin University

• DLA Phillips Fox (four separate workshops)

• Eastern Suburbs Law Association

• Geelong Law Association

• Gippsland Law Association

• Legalwise Seminars PTY LTD (two separate workshops)

• Northern Suburbs Law Association

• Southern Solicitors Group

• Whittlesea Community Legal Centre

Educating law students on legal ethicsThe Legal Services Commissioner acknowledges the important role which tertiary providers play in shaping the future of the legal profession in Victoria. The Legal Services Commissioner works with Victorian universities and training institutions to lecture undergraduate and postgraduate students, and graduates enrolled in practical legal training courses, on regulation of the legal profession in Victoria, the ethical responsibility of lawyers and common issues which feature in complaints. The lectures enable the Legal Services Commissioner to educate law students on ethical conduct before they commence engaging in legal practice.

Education

Two of the Legal Services Commissioner’s statutory objectives involve:• educating the legal profession about issues of concern to the profession

and to consumers of legal services; and• educating the community about legal issues and the rights and obligations

that flow from the client-practitioner relationship.


5,811 (35%)

2008-092007-08

30

25

20

15

10

52009-10

10

15

24

YEAR

Figure 11: No. of ethics workshops delivered


In 2009–10, Legal Services Commissioner staff delivered 14 lectures to over 1,000 law students at Deakin University, LaTrobe University, Monash University, Victoria University and the University of Melbourne. In November 2009 and June 2010, staff presented to trainee lawyers at the Leo Cussen Institute on the impact of heavy workloads and stress on work performance and ethical conduct.

Educating lawyers through public speaking opportunitiesLegal Services Commissioner staff presented at 11 legal conferences and seminars during 2009–10 as follows.

In July 2009, the former Commissioner, Victoria Marles, delivered the keynote address at the 4th Annual Family Law Residential conference convened by the Law Institute of Victoria and the Victorian Bar. Ms Marles highlighted some of the key issues identified through the Commissioner’s Family Law Round Table, including the need for a greater understanding of collaborative law among the profession and the need for better use of referral pathways by family lawyers, particularly where issues such as grief, domestic violence and financial hardship are involved.

In July 2009, a staff member presented at the Focus on Family Law Conference convened by Legalwise Seminars. The presentation outlined issues in complaints in the area of family law and again highlighted some of the outcomes from the Family Law Round Table.

In July 2009, a staff member presented to a community lawyer training program convened by the Federation of Community Legal Centres. The presentation covered common issues in complaints, with a particular focus on conflicts of interest.

In October 2009, the former Commissioner, Victoria Marles, delivered the keynote address at the Federation of Community Legal Centres Annual General Meeting.

In November 2009, a staff member presented to the Victorian Bar Readers Course on the regulatory system in Victoria and provided insight into complaints about barristers. The new Commissioner, Michael McGarvie, addressed the 2010 intake of the Readers Course in March on this same topic.

In March 2010, the Commissioner addressed the monthly meeting of the Southern Solicitors Group on the Legal Services Commissioner’s new approach for dealing with complaints.

In March 2010, the Commissioner presented to the Legal Ethics Teachers’ Network Seminar on Ethics and National Reform at the Monash University Law Chambers where he spoke on the ethics of complaint handling as well as sharing some preliminary thoughts on the national reforms.


5,811 (35%)

2008-092007-08

16

14

12

10

8

6

4

2

02009-10

11

9

14

YEAR

Figure 12: No. of lectures delivered to law students


Educating the community

Raising awareness of the complaint handling regime among the Victorian communityThe Legal Services Commissioner is responsible for educating the community on their rights and responsibilities when working with lawyers and the process for making a complaint with the Legal Services Commissioner. The Legal Services Commissioner distributes information through its Community Outreach Program. This Program enables the Legal Services Commissioner to engage with a wide range of community support groups in regional Victoria and metropolitan Melbourne who have direct contact with consumers. Staff provide information on the rights of the consumer in the client-lawyer relationship and the process for lodging a complaint with the Legal Services Commissioner. The office of the Legal Services Commissioner conducted 10 outreach visits in 2009–10; six of which were

to regional locations. Figure 13 shows the towns and suburbs which the office of the Legal Services Commissioner visited in 2009–10 and in previous years.

Legal Services Commissioner staff met with representatives from 81 community support groups across metropolitan Melbourne and regional Victoria. The Commissioner engages with a diverse range of groups including crisis services, health services, youth services, indigenous cooperatives, consumer advocacy services, neighbourhood houses and government bodies. Organisations that staff met with include:

• Amile Mental Health Advocacy, Werribee

• Anglicare Child First program, Croydon

• Bass Coast Community Health Service, Wonthaggi

• Bendigo and District Aboriginal Cooperative, Bendigo

• Berry Street Bushfire Recovery Project, Seymour

• Jesuit Social Services Collingwood Community Information Centre, Collingwood

• Court Network, Mildura

• Department of Human Services: Disability Services, Melbourne

• Eastern Domestic Violence Outreach Service, Ringwood

• Inverloch Community House, Inverloch

• Mildura Mallee Family Care, Mildura

• Njernda Aboriginal Service, Echuca

• South Gippsland Citizens Advice Bureau, Leongatha

• St Luke’s Victim Assistance Counselling Program, Bendigo

• Westgate Migrant Resource Centre, Altona

Frankston

Wonthaggi

DandenongCoburg

Werribee

GreensboroughRingwood

Warragul

Melton

WangarattaShepparton

Seymour

Bendigo

Bairnsdale

TraralgonGeelong

Stawell

Horsham

Mildura

Warrnambool

WodongaEchuca

2008–092009–10

2007–08

TOWNS AND SUBURBS VISITED

Figure 13: Outreach visits conducted by the Legal Services Commissioner


Feedback on the relationship between consumers and lawyersThe Legal Services Commissioner gathers feedback from community groups on the overall relationship between legal practitioners and consumers in the local communities. This feedback is used to guide lawyers and consumers on ways of developing and maintaining positive client-lawyer relationships. During 2009–10, local community groups raised the following concerns with the Legal Services Commissioner:

• Powers of attorney are often poorly explained to clients;

• Conflicts of interest exist in rural areas due to limited access to legal services;

• Some lawyers do not explain legal terms to their clients;

• Lawyers need to understand the issue of family violence, in particular the effects on female clients;

• Some lawyers do not really understand consent agreements in family law matters;

• Some lawyers fail to adequately explain legal costs;

• Many lawyers are failing to manage client expectations; and

• Some lawyers have a lack of understanding of cultural issues, particularly towards indigenous clients and migrant clients.

Community groups also provided positive feedback on the client-lawyer relationship. For example, many groups praised the time, effort and quality of work performed by local lawyers. Some groups commended the work of Community Legal Centre lawyers in regional areas, particularly the Loddon Campaspe Community Legal Service and the Advocacy and Rights Centre in Bendigo, the Victorian Aboriginal Legal Service lawyers in Swan Hill and Mildura and Legal Aid lawyers in many regional centres, including Echuca.

Distributing information through Members of ParliamentInformation is also distributed through the electorate offices of Members of Parliament, both federal and state, throughout Victoria. Members of Parliament often receive enquiries from local constituents about working with lawyers. During 2009–10, staff from the Legal Services Commissioner distributed information packs to 33 electorate offices in rural and metropolitan areas. The Commissioner also met with the Attorney-General in February 2010, State Shadow Attorney-General, Robert Clarke MP in March 2010 and addressed a meeting of the Coburg West ALP Branch in May 2010 on the role and functions of the Legal Services Commissioner.

Engagement with community legal servicesThe Legal Services Commissioner works with community legal services to provide information to consumers on their rights in the client-lawyer relationship. Community legal services also provide feedback on any issues that their clients may have encountered when working with lawyers. In 2009–10, the Legal Services Commissioner met with representatives from the following Community Legal Centres:

• Advocacy and Rights Centre Bendigo, incorporating the Loddon Campaspe Community Legal Centre

• Moreland Community Legal Centre

• Murray Mallee Community Legal Service

• Springvale Monash Legal Service

• Whittlesea Community Legal Service

• Wyndham Legal Service

Specialist legal servicesSpecialist legal services provide legal assistance to particular groups within the community. During 2009–10, Legal Services Commissioner staff met with representatives from the following specialist legal services:

• Aboriginal Family Violence Prevention and Legal Service, Mildura

• Family Mediation Centre, Ringwood

• Mental Health Legal Centre, Melbourne

• Muslim Legal Service Victoria, Coburg

• Seniors Rights Victoria, Melbourne

• Victorian Aboriginal Legal Service, Swan Hill

Other community engagement activitiesDuring 2009–10, the Legal Services Commissioner participated in a range of other activities to raise awareness of the complaints regime among the Victorian community:

• Law Week 2010

During Law Week 2010, the Legal Services Commissioner worked with the Victorian Law Foundation to disseminate copies of its publications to over 130 community libraries across Victoria. Brochures were also provided to the Advocacy and Rights Centre, Bendigo for inclusion in 500 information packs for their Law Week event.

• Victoria Law Foundation website

The Legal Services Commissioner included copies of its publications on Victoria Law Foundation’s new website Victoria Law. The website operates as a portal, providing access to a range of legal information and publications at one central location.


• Telstra Business Centre Shepparton Business Solutions Expo 2010

The Legal Services Commissioner provided a range of brochures to the Shepparton Chamber of Commerce and Industry for a community and business expo held in April 2010.

Publications for consumersThe Legal Services Commissioner produces a range of publications which outline the rights and obligations of consumers in the client-lawyer relationship as well as the process for lodging a complaint with the Legal Services Commissioner.

These publications include:

• Working with your lawyer (available in 10 other languages including Arabic, Chinese, Croatian, Greek, Italian, Macedonian, Serbian, Spanish, Turkish and Vietnamese)

• Do you have a problem with your lawyer?

• Are you making a complaint about legal costs?

• Have you suffered a financial loss because of your lawyer?

• Legal costs: your right to know

• Your right to challenge legal costs

• Dealing with cost disputes in family law matters

• Mediations

• Handling disciplinary complaints

• Negligence and complaints

During 2009–10, the Legal Services Commissioner updated three brochures and initiated a review of the community’s need for material produced in languages other than English. Publications are distributed through a variety of forums including the information packs distributed to community groups through the Community Outreach Program. 100 packs were distributed in 2009–10. Some groups contact the Legal Services Commissioner directly for

copies. During 2009–10, the Legal Services Commissioner received 30 requests for publications from groups such as community legal centres, local politicians, local government councils and community information centres. The Legal Services Commissioner also distributes publications to Community Legal Centres and Victoria Legal Aid offices. During 2009–10, the Legal Services Commissioner distributed publications to 62 community legal centres and 15 Victoria Legal Aid offices.

For copies of any of the above publications, contact the Legal Services Commissioner’s office, or see our website www.lsc.vic.gov.au


The Legal Services Commissioner has a small team that undertakes research, prepares policies and procedures, assists with major projects and supports the education functions through the drafting and development of presentations and ethics workshops.This year a key focus has been on the draft National Law and proposed changes to the regulatory regime, which is dealt with separately on page 26. The research and policy team consists of a Senior Policy Officer and two research assistants (both of whom are law students who work one day a week). Depending on the issue, other staff also assist with policy and research matters.

In–house research requestsA number of research tasks were undertaken by the research and policy team in response to specific requests from complaint handlers. The research topics included the following:

• Identification of the rules relevant to probate and estate issues

• Disciplinary ramifications of breaches of employment contract

• Orders relevant to disqualified legal practice

• VCAT’s power to award costs

• Review of Fair Trading Act cases involving lawyers

• Comparison with regulation of medical profession

New case studiesIn July 2009, all of the complaint handlers attended a one day brainstorming session to develop new case studies for the ethics workshops delivered as part of the education program. Sixteen new case studies were created, including case studies relevant to corporate lawyers. The case studies were then discussed and trialled among staff, before being launched at the ethics workshop in Mildura in October 2009.

Watching brief: New regulatory regime in England and WalesGiven the proposed national reforms discussions occurring in Australia, the Legal Services Commissioner has taken a keen interest in the reforms happening to the regulatory regime in England and Wales. The Legal Services Commissioner has also made contact with the office of the new Legal Ombudsman in England.

The Legal Services Commissioner employs a Commmunications Adviser who is responsible for coordinating the communication activities for the office.Work performed by the Communications Adviser includes producing publications and materials, maintaining the website and dealing with media enquiries.

Developing a new websiteDuring the year, the Communications Adviser progressed work on the development of a new website. The

new website will provide information about the role and functions of the office in a user-friendly format and will replace the current website that has been in place since 2006. The new website is anticipated to go live in 2010–11.

Review of public documentsDuring 2009–10, the Communications Adviser revised three brochures, including Working with your Lawyer, Do you have a problem with your lawyer and Have you suffered a financial loss because of your lawyer? (previously titled Are you claiming you have lost money because of your lawyer?) These brochures are available on the Legal Services Commissioner’s

website at www.lsc.vic.gov.au The office of the Legal Services Commissioner also commenced a revision of its complaint form with a view to updating and modernising the form, which will be completed and distributed in 2010–11.

LSC NewsletterIn May 2010, the Commissioner produced his first newsletter, LSC News. The newsletter highlights the activities of the office and features tips for lawyers on maintaining high standards of conduct. The newsletter is distributed electronically and is also available on the Legal Services Commissioner’s website.

Research

Communications


The Legal Services Commissioner aims to develop and maintain positive relationships with members of the profession, interested groups and other legal regulators.

Relationships with the legal profession

Engagement with the professional associationsIn 2009–10, the Commissioner held monthly meetings with the executive staff from the Law Institute of Victoria and the Victorian Bar, the peak professional associations representing solicitors and barristers in Victoria. The professional associations provide advice on ways of educating lawyers on ethical behaviour and give feedback on any issues of concern among Victoria’s legal profession.

Engagement with suburban and regional law associationsThroughout the year, the Legal Services Commissioner increased its level of engagement with suburban and regional law associations. The law associations represent the interests of lawyers in local parts of Victoria. During the year, staff met with representatives from six local law associations, including three suburban and three regional associations. Legal Services Commissioner staff also delivered seven ethics workshops for law associations. The Commissioner met personally with some association executives, where he learnt about significant issues affecting their members. Another staff member addressed the Gippsland Law Association Annual General Meeting in May 2010 on changes to the complaint handling regime.

Representative associationsLegal Services Commissioner staff delivered two ethics workshops for the Australian Corporate Lawyers Association in October and

November 2009. The Commissioner also attended the Victorian State Conference Dinner of the Australian Lawyers Alliance in May 2010.

Meetings with large and mid-tier law firmsIn April 2010, the Commissioner commenced a series of meetings with the Managing Partners and CEOs from a number of mid-tier and large law firms. Lawyers from these firms rarely feature in complaints to the Legal Services Commissioner. Accordingly, the Commissioner wanted to learn about the issues facing these lawyers and how they deal with client dissatisfaction. Between April and June 2010, the Commissioner and some of his senior staff met with Partners from Baker & McKenzie, Blake Dawson, Clayton Utz, Macpherson+Kelley and Middletons. These meetings have been successful, and the Commissioner will continue with this initiative in 2010–11.

Relationships with other legal regulators

Meetings with interstate legal regulatorsIn 2009–10, the Commissioner participated in monthly telephone conferences with the New South Wales Legal Services Commissioner, Queensland Legal Services Commissioner and CEO of the Western Australia (WA) Legal Practice Board. These meetings promote the sharing of information and ideas around important legal regulatory issues and complaint handling matters.

Conference of Regulatory Officers (CORO) ConferenceIn August 2009, Legal Services Commissioner staff attended the Conference of Regulatory Officers (CORO) Conference in Perth, WA. CORO is an annual conference that enables legal regulators from across Australia to meet and discuss issues that are relevant to legal regulation. The WA Legal Practice Board hosted the Conference, which covered a range of topics including over-regulation of the

legal profession, alternative business structures and the legal regulatory model in the UK. At the conclusion of the Conference, Victoria was nominated as the host for the 2010 Conference.

The 2010 CORO Conference will be jointly hosted by the Legal Services Commissioner, Legal Services Board and Law Institute of Victoria. During 2009–10, staff commenced planning for the Conference, which included identifying topics and speakers. The Conference will be held in August 2010 and is expected to be attended by 70 people from a range of legal regulatory agencies. The Conference will cover a range of topics, including suitability, fitness and propriety, continuing legal education, the regulation of legal outsourcing and the national legal profession reforms.

Working with the Legal Services BoardThe Legal Services Board is the peak regulator of the legal profession in Victoria. The Board is responsible for issuing and renewing practising certificates, maintaining the register of legal practitioners and law practices and the register of disciplinary action, administering funds under the Legal Profession Act 2004 and investigating and determining claims against the Fidelity Fund. The Board and Commissioner are separate entities, each performing their own unique functions; however the Commissioner, Michael McGarvie, is also the CEO of the Board. The two agencies often share information to assist with the performance of specific regulatory tasks. For example, information gathered by the Legal Services Commissioner through its complaint handling role may assist the Board in determining fitness and propriety matters, renewing practising certificates and carrying out trust account investigations. During the year, Legal Services Commissioner and Board staff focused on improving the protocols for the disclosure of relevant information between the two agencies to eliminate unnecessary delays and enhance the operations of both organisations. This has led to faster outcomes in matters for both the Board and Commissioner.

Building and maintaining relationships


The Legal Services Commissioner believes it is important to identify and respond to any issues which are relevant to complaint handling and legal regulation. Below are some examples of the Legal Services Commissioner’s activities in responding to emerging issues identified in the 2009–10 reporting year.

National Legal Profession Reform ProjectThroughout 2009–10, there have been numerous discussions and opportunities for submissions about the proposed national regulatory structure for the regulation of lawyers in Australia. This became a major focus for our office when the draft National Law was released in May 2010 for public consultation.

Chapter 5 of the draft National Law is the chapter about complaints and discipline, and most relevant to the work of the Legal Services Commissioner. The Senior Policy Officer ran five internal workshop sessions about Chapter 5, the investigation powers in Chapter 7 and general provisions about the proposed National Legal Services Ombudsman to allow staff to closely consider and comment on the proposed reforms. In June 2010, the Acting Director, Investigations attended the Consumer Consultation Panel discussion for complaint handling staff convened by the National Legal Profession Reform Taskforce. This provided another opportunity for comments to be made on the important topics of complaints and dispute resolution; legal costs; and consumer participation at the policy level.

Round table forumsThe Commissioner convenes regular round table forums to identify ways of addressing key issues identified in complaint handling. Outcomes from the Commissioner’s round table forums are discussed below.

2010 Probate and Estate Round TableIn June 2010, the Legal Services Commissioner convened a round table forum to explore the issues surrounding complaints about lawyers in probate and estate matters. Each year, 11% of complaints received by the Legal Services Commissioner relate to probate and estate. Many of these complaints relate to issues of delay, overcharging, negligent case handling and poor communication. The Commissioner invited representatives from the County Court; Supreme Court; professional associations, and consumer support groups as well as specialist probate and estate practitioners to participate in the round table discussions. Some of the issues that emerged through the discussions included commissions and legal fees charged by solicitor executors, delays and communication with clients. A summary document outlining the discussions will be available in 2010–11.

2009 Debt Collection Round TableIn 2008–09, the Legal Services Commissioner convened a round table forum to explore the issues surrounding complaints about lawyers relating to debt collection. One of the key issues that emerged at the forum was the restrictions on the pursuit of statute-barred debts. To raise awareness of this issue among Victorian lawyers, a paper was prepared by one of the Commissioner’s research assistants outlining the issues surrounding statute-barred debts. This paper was published as a feature article in the April 2010 edition of the Law Institute Journal. The Summary of the 2009 Debt Collection Round Table was released in August 2009 and can be downloaded from the Publications page of the website at www.lsc.vic.gov.au

2008 Family Law Round TableFollowing the release of the Report on the 2008 Family Law Round Table in November 2008, the Legal Services Commissioner was invited to deliver the keynote address at the 4th Family Law Residential convened by the Law Institute of Victoria and Victorian Bar in July 2009. The Report on the 2008 Family Law Round Table can be downloaded from the Publications page of the website at www.lsc.vic.gov.au

Responding to emerging issues

27

ChapterHuman resourcesThe Legal Services Commissioner is committed to providing a safe and positive work environment for staff. The Legal Services Commissioner recognises the importance of promoting a dynamic and progressive work place that encourages continual learning and development and opportunities for career advancement and progression.

02


ManagerHuman Resources

Communications Adviser

Senior Policy Officer

Manager, Complaints & Investigations

Manager, Complaints & Investigations

Manager, Administration Complaint Support Services

Coordinator, Case Management System

Complex Complaints Adviser

Manager Projects & Governance

Manager Grants

Manager Finance & Investment

General Counsel

Legal Services Commissioner functions

Legal Services Board functions

Legal Services Commissioner &Legal Services Board functions

Manager Compliance

Manager Policy


CEO, Legal Services Board

Russell DailyActing Director

INVESTIGATIONSLegal Services Commissioner

Ellie LucasActing Director

LEGAL & POLICY Legal Services Board

Diana GillespieDirector

CORPORATE & GOVERNANCE Legal Services Board


Nitsa KarahaliosDirector

REGULATORY COORDINATIONLegal Services Board


ManagerCorporate Services

Figure 14: Organisational structure and employment arrangements for the Legal Services Commissioner and the Legal Services Board as at 30 June 2010

Organisational structure of the Legal Services Commissioner and Legal Services BoardThe Legal Services Commissioner and the Legal Services Board are separate agencies, each performing their own unique functions. However

the Commissioner, Michael McGarvie, is also the Chief Executive Officer of the Legal Services Board. Section 6.4.1 of the Legal Profession Act 2004 prescribes that the Legal Services Commissioner is the employer of staff for both the Legal Services Commissioner and the Legal Services Board. The staffing arrangements for the Legal Services Commissioner

and the Legal Services Board are illustrated in Figure 14 below. Note that some staff work for both agencies. Staff are employed under Part 3 of the Public Administration Act 2004.

The Legal Services Commissioner is the employer for both organisations.

Chapter Two Human resources 29

New position: Director, Regulatory CoordinationDuring the year, a new position was created to assist with the delivery of sound and timely advice to both the Legal Services Commissioner and the Legal Services Board and to represent the Commissioner and Chief Executive Officer of the Legal Services Board internally and externally. A focus of the position is co-ordinating projects and work occurring across the Legal Services Commissioner and the Legal Services Board, as well as with work delegated to the professional associations and relevant stakeholders. The position is the Director, Regulatory Coordination.

Staff employed by each agencyFigure 15 shows the number of staff employed by each agency and the number of staff who perform functions for both agencies. The numbers are given as to headcount (HC) and full time equivalent (FTE). Staff who perform work for both the Legal Services Commissioner and Legal Services Board occupy roles such as human resources, financial management, IT support and communications.

Full time equivalent (FTE) numbers have been rounded to the nearest whole number. This rounding may result in small inconsistencies in the figures featured in this chapter.

Figure 15: Number of staff employed by the Legal Services Commissioner

FULL TIME EQUIVALENT

2009-10




and Legal Services Board functions

0 5 10 15 20 25 30 35 40

2008-09

3036

HEAD COUNT

2118

1221




and Legal Services Board functions

0 5 10 15 20 25 30 35 40

2430

2118

1221


Organisational chart of the office of the Legal Services CommissionerFigure 16 shows the organisational structure of the staff who work on functions performed by the Legal Services Commissioner. This chart excludes the functions performed by the Legal Services Board. The organisational chart of the Legal Services Board is available in the Board’s 2009–10 Annual Report, which is available online at www.lsb.vic.gov.au

Reorganisation of staff in the complaints and investigations areaIn 2009–10, the complaints and investigations unit went through a reorganisation of tasks and activities resulting in the movement of some staff to different work tasks and responsibilities. The reorganisation was consistent with the outcomes of some consultative processes, issues identified by the Victorian Ombudsman and discussions with staff and management.

EducationPolicyResearch

ComplaintsEnquiriesRapid ResolutionsDispute Resolution

ComplaintsParalegals

Administration SupportReception

Senior Policy Officer

Manager Complaints

& Investigations

Manager Complaints

& Investigations

Manager, Administration

Complaint Support Services

Complex Complaints

Adviser

Coordinator Case

Management System


Russell DailyActing Director

INVESTIGATIONS

Figure 16: Organisational chart of the office of the Legal Services Commissioner


Workforce data and staffing trendsFigures 17 and 18 show the profile of the workforce employed by the Legal Services Commissioner for both the Legal Services Commissioner and Legal Services Board as at 30 June 2010.

*Full time equivalent (FTE) numbers have been rounded to the nearest whole number. In some columns this rounding results in small inconsistencies between groupings. For example, the rounding of FTE numbers to the nearest whole number has resulted in slight variances between FTE numbers in Figure 18, and FTE numbers dissected by gender, age, and classification (as shown in Figure 19).

The number of staff employed by the Legal Services Commissioner increased in the 2009–10 reporting period. This was due to the introduction of the new rapid resolution complaint handling processes, which required the employment of new staff to undertake these activities. The increase is also due to a number of vacancies at 30 June 2009 that were filled in the 2009–10 reporting year.

FIgure 17: Five-year staffing trend (headcount)

Figure 18: Profile of ongoing employees and fixed term and casual for 2009–10

20072006

80

70

60

50

40

30

20

10

02008 2009 2010

32

52

63 63

YEAR

HEA

DCO

UN

T

77

June 2009June 2010

Number (headcount)

Fulltime (headcount)

Part time (headcount)

FTE* (rounded)

FTE* (rounded)

0 10 20 30 40 50 60 70 80

66

55

54

46

10

61

52

11

5

9

TOTAL

ONGOING EMPLOYEES

FIXED TERM & CASUAL


Executive officer dataAn executive officer is defined as a person employed by a public service body Head or other executive under Part 3, Division 5 of the Public Administration Act 2004. All figures reflect employment levels as at 30 June 2010. ‘Ongoing’ executives are executives who are responsible for functions or outputs that are expected to be ongoing at the reporting date. As at 30 June 2010 there was one vacant executive position. There were no ‘Special Projects’ executives employed by the Legal Services Commissioner during 2009–10. Figures 20 and 21 disclose details for the executive officers employed by the Legal Services Commissioner for 2009–10.

The number of executives in this report of operations is based on the number of executive positions that are occupied at the end of the financial year. Note 18 in the Financial Report lists the actual number of and amount of remuneration paid to executive officers over the course of the reporting period. The Financial Report Note 18 does not distinguish between executive levels, nor does it

disclose separations, vacant positions or executives whose remuneration is below $100,000. Separations are those executives who received more than $100,000 in the financial year and have left the employment of the Legal Services Commissioner during the year. To assist readers, these two disclosures are reconciled in Figure 21.

Figure 19: Employees of the Legal Services Commissioner

30 JUNE 2010 30 JUNE 2009

ONGOINGFIXED TERM

& CASUAL ONGOINGFIXED TERM

& CASUAL NUMBER

(HEADCOUNT)FTE*

(ROUNDED)FTE*

(ROUNDED)NUMBER

(HEADCOUNT)FTE*

(ROUNDED)FTE*

(ROUNDED)Gender

Male 11 10 4 8 8 1

Female 55 53 5 47 44 4

Total 66 63 9 55 52 5

Age

Under 25 0 0 1 1 1 0

25–34 24 23 3 16 16 2

35–44 20 19 0 18 16 2

45–54 18 17 2 16 15 1

55–64 4 4 1 4 4 0

Over 64 0 0 2 0 0 0

Total 66 63 9 55 52 5

Classification

VPS 1 0 0 0 0 0 0

VPS 2 3 3 2 7 7 1

VPS 3 15 14 1 9 9 0

VPS 4 8 8 1 6 6 0

VPS 5 23 21 4 16 14 4

VPS 6 14 14 1 13 12 1

STS 1 1 0 1 1 0

Executives 1 1 2 2 2 0

Other# 1 1 0 1 1 0

TOTAL 66 63 11 55 52 6

#Employee reported as ‘Other’ is the Legal Services Commissioner, Michael McGarvie, who is a statutory office holder.

Figure 20: Number of executive officers classified as ‘ongoing’

2009–10 2008–09MALE FEMALE MALE FEMALE

EO–1 0 0 0 0

EO–2 0 0 0 0

EO–3 0 1 0 2


Staff training and professional developmentThe Legal Services Commissioner places a high value on strengthening staff knowledge and skills. Practical training and ongoing professional development is integral to the Commissioner’s operations. In 2009–10, staff participated in over 500 hours of training on the following topics:

• Understanding section 4.4.11 of the Legal Profession Act 2004 – failure to respond to the Commissioner.

• Summary dismissal of complaints by the Commissioner.

• Legal ethics.

• Observing human rights in complaint handling.

• Respecting privacy in complaints handling.

• Handling complaints in the building and construction industry, presented by Building Commission Victoria.

• Managing risk in legal practice, presented by the Legal Practitioners Liability Committee.

• Handling complaints against members of the police force, presented by Victoria Police.

• Investigating lawyers’ trust accounts, presented by the Law Institute of Victoria.

• Changes to the Evidence Act 2008, presented by the Office of Public Prosecutions.

• Managing difficult behaviour.

• Gathering evidence.

• Plain English writing in legal correspondence.

• Advocacy skills for VCAT.

• Negotiation skills.

People Matter Survey 2009The Legal Services Commissioner participated in the Victorian Public Service People Matter Survey in August 2009. The survey measures the perceptions of employees on the application of values and employment principles in the workplace. One initiative that emerged through the survey was the establishment of a Portfolio Group that is responsible for identifying and implementing operational improvements, systems flaws and cultural characteristics across both organisations. This group is comprised of senior staff from the offices of both the Legal Services Commissioner and Legal Services Board, who meet regularly to discuss performance issues in each agency.

Performance, Progression and Development PlansIn consultation with management, all staff prepared detailed Performance, Progression and Development Plans (PPDPs) during 2009–10. Feedback and review meetings were conducted every six months to assess employee progress and performance in achieving the defined objectives.

During 2009–10, the Human Resources Team worked with an external software company to develop and implement an online performance management system. The new system known as the Performance, Development and Planning System will automate the performance management process thereby reducing the time taken to complete PPDPs. It also enables managers and staff to monitor, edit and update plans regularly and in line with the workflow of the organisation. The new system will be implemented in July 2010.

Occupational Health and SafetyThe Legal Services Commissioner is committed to occupational health and safety compliance, as well as the general health and wellbeing of staff occupying the premises. Issues relating to the maintenance of a safe workplace and practices are reported and considered through an active Occupational Health and Safety (OH&S) Committee in accordance with the legislative requirements and internal procedures.

The Committee is comprised of representatives from each work area who actively communicate with staff and management to identify potential issues relating to work processes and facilities, and respond to any safety concerns raised. The Committee met six times during 2009–10. The initiatives of the Committee include ergonomic assessments, lighting assessments, and improvements to the office and work areas. As part of our commitment to maintaining a safe and healthy work environment, all new staff receive an ergonomic assessment as part of the routine induction process.

The Committee conducted OH&S week in October 2009, which coincided with OH&S week in Victoria. A range of activities were arranged, including stretching exercises at staff workstations, Tai Chi, lunchtime walks, OH&S quizzes and a healthy breakfast for all staff. There were no reported OH&S related incidents in the reporting year.

Figure 21: Reconciliation of executive numbers

CATEGORY 2009–10 2008–09

ADD

Executives with remuneration over $100,000 1 2

Vacancies 1 0Executives employed with a total remuneration below $100,000 0 0

Accountable Officer (Legal Services Commissioner) 1 1

LESS Separations - 1 0

Total executive numbers as at 30 June 2010 2 3


Merit, equity and diversity principles for recruitment and conductThe Legal Service Commissioner is committed to applying merit and equity principles to ensure that applicants for employment are assessed and evaluated fairly and equitably on the basis of the key selection criteria and other accountabilities without discrimination. The Legal Services Commissioner recruited for a number of roles during the year applying the principles of merit and equity, ensuring that we attract and retain the best people and strive to be an employer of choice. During 2009–10, 27 positions were advertised in which selection was made on applying merit and equity principles in line with the standards of the State Services Authority. No selection grievances were lodged this year.

Public administration values and employment principlesThe Public Administration Act 2004 abolished the Office of Commissioner for Public Employment and established the State Services Authority. Notwithstanding, the Legal Services Commissioner continues to implement the previous directions of the Commissioner for Public Employment with respect to upholding public sector conduct, managing and valuing diversity, managing underperformance, reviewing personal grievances and selecting on merit. The Legal Services Commissioner demonstrated compliance with the Public Sector Values and employment principles through a range of initiatives identified in response to the People Matter Survey. The Legal Services Commissioner conducted focus groups and information sessions to seek staff feedback on short and long term initiatives to improve staff satisfaction and organisational efficiencies.

35

ChapterGovernanceAs a statutory authority, the Legal Services Commissioner aims to administer and promote public governance principles. This chapter includes compliance statements, which are published to demonstrate the Legal Services Commissioner’s commitment to transparency and accountability as a public sector agency in 2009–10.

03

Freedom of InformationThe Legal Services Commissioner is subject to the Freedom of Information Act 1982 (the FOI Act).

The FOI Act provides every person with a legally enforceable right to access documents in the possession of an agency, subject to certain exceptions. Because of the sensitive nature of the majority of documents held by the Legal Services Commissioner, an exemption often applies to preclude access.

Requests received and requests processed during the yearDuring the period 1 July 2009 to 30 June 2010, the Legal Services Commissioner received three new valid requests under the FOI Act. All of these requests were processed during the year; one request was granted in part and two were denied in full. There was one further request processed that was reported as outstanding at 30 June 2009. This request was granted in part.

Three internal reviews were processed in the period 2009–10. The original decision was confirmed in all three matters.

Applications to VCAT during the yearWhere the Legal Services Commissioner refuses to provide access to a document requested under the FOI Act, a person may apply to the Victorian Civil and Administrative Tribunal for review of the decision. There was one VCAT appeal lodged in the period 2009–10 from a decision relating to access. At 30 June 2010 this matter was yet to be finalised.

It was reported in 2008–09 that there were three outstanding requests at 30 June 2009. This was incorrect. At 30 June 2009 there was one outstanding request and two outstanding internal reviews.

Making a requestA request for access to documents made pursuant to the FOI Act must be:

• in writing (and provide such information as is reasonably necessary to enable identification of the relevant documents); and

• accompanied by the prescribed application fee.

Requests for documents in the possession of the Legal Services Commissioner should be addressed to:

Legal Services CommissionerLevel 9, 330 Collins StreetMELBOURNE VIC 3000

Access charges may also apply once documents have been processed and a decision on access made; for example photocopying and search and retrieval charges.

Further information regarding Freedom of Information can be found on FOI Online at www.foi.vic.gov.au

Building Act 1993The Legal Services Commissioner does not own or control any government buildings and consequently is exempt from notifying its compliance with the building and maintenance provisions of the Building Act 1993.

Whistleblowers Protection Act 2001The Whistleblowers Protection Act 2001 encourages and assists people making disclosures of improper conduct by public service officers and public bodies. It provides


protection to people who make disclosures in accordance with the Act and establishes a system for the matters disclosed to be investigated and rectifying action to be taken. Procedures have been developed to deal with disclosures made under the Whistleblowers Protection Act to the Legal Services Commissioner (consistent with Ombudsman Victoria’s model procedures). The procedures can be obtained from the Legal Services Commissioner’s website www.lsc.vic.gov.au. The Legal Services Commissioner received one purported disclosure under the Whistleblowers Protection Act 2001 during the year. The disclosure was referred to the State Ombudsman, who determined that it did not meet the requirements for a protected disclosure under the Whistleblowers Protection Act.

DisclosuresDisclosures of improper conduct or detrimental action by the Legal Services Commissioner may be made to:

The Director, InvestigationsTel: 03 9679 8001Fax: 03 9679 8101Email: [email protected]

Alternatively disclosures may be made directly to the Ombudsman.

Ombudsman VictoriaLevel 9, 459 Collins Street (North Tower)Melbourne VIC 3000Tel: 03 9613 6222Toll Free: 1800 806 314www.ombudsman.vic.gov.auEmail: [email protected]

National Competition PolicyIn 1995, all Australian Governments (Federal, State and Territory) agreed to review and, where appropriate, reform all existing legislative restrictions on competition. Under the National Competition Policy, the guiding legislative principle is that legislation, including future legislative proposals, should not restrict competition unless it can be demonstrated that:

• the benefits of the restriction to the community as a whole outweigh the costs; and

• the objectives of the legislation can only be achieved by restricting competition.

The Legal Services Commissioner continues to comply with the requirements of the National Competition Policy.

Victorian Industry Participation PolicyIn October 2003, the Victorian Parliament passed the Victorian Industry Participation Policy Act 2003, which requires public bodies and departments to report on the implementation of the Victorian Industry Participation Policy (VIPP). Departments and public bodies are required to apply VIPP in all tenders over $3 million in metropolitan Melbourne, and $1 million in regional Victoria.

For the reporting period, the Legal Services Commissioner did not commence any contracts to which the VIPP applies.

ConsultanciesDetails of consultancies over $100,000The Legal Services Commissioner did not engage any consultancies where the cost of the engagement was $100,000 or above during the 2009–10 reporting year.

Details of consultancies under $100,000During 2009–10, the Legal Services Commissioner appointed 7 consultancies valued at less than $100,000 each. The total value of these consultancies was $17,068. Total approved project fees and expenditure for 2009–10 excludes GST.

Summary of financial activity in 2009–10

Five year financial summary Figure 22 provides a summary of the Legal Services Commissioner’s financial activity for the past five years. The data for the 2005–06 reporting period is only partial and accounts for less than seven months operation. Full details of the Legal Services Commissioner’s financial activity can be found on page 42 of this report.

Figure 22: Five year summary of financial operations

2009–10 2008–09 2007–08 2006–07 12/12/2005–06Revenue from Funding $7,000,805 $6,330,360 $6,576,200 $5,350,000 $2,950,000

Other Revenue $3,207,293 $3,015,436 $2,905,153 $1,218,923 $422,046

Total Revenue $10,208,098 $9,345,796 $9,481,353 $6,568,923 $3,372,046

Total Expenditure $10,230,644 $9,300,774 $8,417,543 $6,955,922 $3,116,235

Net Result ($22,546) $45,022 $1,063,810 -$386,999 $255,811

Net Cash Flow from operating activities $895,306 ($295,312) $1,350,813 $25,975 $731,597

Total Assets $2,985,114 $3,050,691 $2,524,595 $1,372,924 $251,584

Total Liabilities $2,000,650 $2,043,680 $1,562,607 $1,474,746 $222,219

Chapter Three Governance 37

During 2009–10, the Legal Services Commissioner’s financial result from ordinary activity was affected by the following:

FundingThe Legal Services Commissioner received an additional $670,445 in funding from the Legal Services Board in 2009–10. This was due to increased levels of operational activity in the operations of the Legal Services Commissioner and the cash flow needs of the organisation. The funding levels were consistent with budget allocations that were approved by the Attorney-General.

Employee benefitsEmployee benefits costs for 2009–10, as set out in the attached financial statements, was $7.152 million in comparison to $5.732 million in 2008–09. The increase was due to a number of factors including:

• The Legal Services Commissioner was under-resourced in 2008–09 and unable to fill a number of staff vacancies. All positions were successfully filled in 2009–10.

• The Legal Services Commissioner brought back in-house some complaints case management activities which had been previously outsourced to the Law Institute. This resulted in lower payments to the Law Institute of $735,000 in 2009–10 compared to $1.381 million in 2008–09.

• The gross expense of $7.152 million includes $3.085 million recharged to the Legal Services Board for staff employed by the Legal Services Commissioner who are either wholly or partly engaged on Board activities. The amount recharged increased by $347,000 on 2008–09.

DepreciationDepreciation costs for 2009–10 were $229,548 compared with $27,198 in 2008–09. The additional costs were incurred due to the August 2009 commission of the complaints case management computer system. The depreciation represented development costs that had been accumulated in prior years.

Additional information available on requestThe Legal Services Commissioner maintains further information which is available to the relevant Ministers, the Members of Parliament and the public on request (subject to freedom of information requirements, if applicable). This includes:

• a statement that declarations of pecuniary interests have been duly completed by all relevant officers;

• details of shares held by a senior officer as nominee or held beneficially in a statutory authority or subsidiary;

• details of publications produced by the entity about itself, and how these can be obtained;

• details of changes in prices, fees, charges, rates and levies charged;

• details of any major external reviews carried out;

• details of major research and development activities undertaken;

• details of overseas visits undertaken including a summary of the objectives and outcomes of each visit;

• details of major promotional, public relations and marketing activities undertaken to develop community awareness of services;

• details of assessments and measures undertaken to improve the occupational health and safety of employees;

• a general statement on industrial relations and details of time lost through industrial accidents and disputes; and

• a list of major committees sponsored, the purposes of each committee and the extent to which the purposes have been achieved.

Audit Committee

ChairpersonMr John Coates

Members Mr Nick Daicos Ms Mary Beth Bauer

The membership of the Legal Services Commissioner’s Audit Committee is composed of three people from external organisations, each of which has extensive experience in financial management.

Ms Marie Turner resigned as Chairperson of the Committee at the end of 2009. Mr John Coates an existing member of the Committee replaced Ms Turner as Chairperson.

Ms Mary Beth Bauer joined the Committee on 21 April 2010.

The committee met six times during 2009–10. The Committee reviews reports of audits conducted by the external and internal auditors, assesses the management of risk, and determines the adequacy of the Legal Services Commissioner’s financial and accounting controls and administrative processes.


Office based environmental impacts

The Legal Services Commissioner has a committee called the Green Team who monitor and review office-based environmental issues. The committee reviews the usage of energy and consumables around the office, raises the profile of environmental issues among staff, coordinates environmental assessments and advises on policies and procedures for improving the efficiency of resource use.

The following data relates to the environmental impacts of both Legal Services Commissioner and Legal Services Board staff.

Resource Smart Government programIn July 2009 the Legal Services Commissioner signed up with Sustainability Victoria to develop

an environmental management plan (EMP). An EMP is a document which will assist the Commissioner to identify and manage the environmental impacts which stem from all business activities.

Commissioner staff attended a series of workshops and coaching sessions through Sustainability Victoria’s ResourceSmart Government program. These sessions guided staff in the preparation of an holistic strategy to establish, evaluate and address the environmental impacts generated by the activities of the organisation.

Each of the Commissioner’s business areas were assessed to show how and where energy was used and resources consumed. The resulting plan complements the current environmental disclosure reporting in this and previous annual reports, while providing enhanced guidance for reducing impacts across the organisation.

The task of monitoring the implementation and evaluation of the EMP has been allocated to the

Green Team. The EMS developed by the Commissioner was launched in July 2010. The initial plan covers the 2010–11 reporting year. A second two-year plan will be developed and implemented towards the end of the 2010–11 year and will cover the 2011–13 reporting period. From then, plans will be developed on a biennial basis.

Targets for reducing environmental impacts have been established and adopted by the Commissioner. Each target relates to baseline measurements established in 2007–08.

Energy consumptionThe energy usage data for 2009–10 per full time equivalent (FTE) decreased by approximately 9% on the previous year. This demonstrates that policies previously implemented by the Legal Services Commissioner, such as turning lights off and shutting down computers and printers after hours is having a measurable impact on energy consumption in the office.


Gas consumption is not separately metered and usage is incorporated into the office lease. Therefore data on gas consumption for the Legal Services Commissioner’s offices is not available.

2009–10 achievements• In 2009–10, the Commissioner

established a target of purchasing a minimum of 10% green power for office requirements. In November 2009 the Commissioner signed on to purchase 50% of the office’s energy needs from renewable energy sources. Green power therefore accounted for 23.33% of the offices’ energy use for the year, and contributed to a reduction in greenhouse gas emissions of more than 55 tonnes of carbon over the 2009–10 reporting year.

• During the year a second energy assessment was undertaken for the office using a new consultant, Great Forests. The resulting report provided a series of important initiatives for reducing energy usage, including delamping in specific areas, the upgrading of equipment to new energy efficient models and recommendations for the more efficient cooling of IT infrastructure. Each of these recommendations is being investigated by the Green Team and management to achieve greater energy savings across the organisation.

2010–11 Target• Reduce our greenhouse gas

emissions by 20% by June 2011, compared with the 2007–08 baseline

Waste generationThe Legal Services Commissioner undertakes an annual assessment of all waste streams to monitor the levels of waste generated by its operations and staff.

The 2009–10 waste assessment, also carried out by Great Forests, identified an increase in the amount of waste sent to landfill from the previous year. The specific waste types which increased were food waste and cardboard.

It should be noted that the waste assessments are a snapshot of the office waste generation at a single point in time, extrapolated to represent a typical year. The

results may therefore be skewed by individual events captured on the date of assessment. Nonetheless, the Commissioner has made waste management a significant focus of the new EMP with several new initiatives being implemented and investigated from 2010–11 to further reduce waste sent to landfill. Further reductions in volumes of waste generated per FTE are expected to be recorded in future waste assessments.

As the Legal Services Commissioner has limited waste management facilities available through the existing office tenancy agreement, a renewed attempt to secure a commingled recycling service for the office will be made through negotiation with building management.

The Commissioner continues to attempt to reduce waste generation through the contracting of a not-for-profit recycling service, Green Collect.

Figure 23: Energy consumption

ELECTRICITY NATURAL GAS GREEN POWER2009–10 2008–09 2009–10 2008–09 2009–10 2008–09

Total energy usage segmented by primary source (MJ) 638,892 593,244 N/A N/A 149,065.2 0

Greenhouse gas emissions associated with energy use, segmented by primary source and offsets (tonnes) 182.26 215.87 N/A N/A 72.25 0

Percentage of electricity purchased as Green Power* 23.33 0

Units of energy used per FTE (MJ/FTE) 9,443 10,388

Units of energy used per unit of office area (MJ/m2) 431 400

* Purchase of 50% green power commenced on 30.11.09, thus less than 50% usage is recorded

5,811 (35%)

15

12

9

6

3

0

YEAR

KG

s

2008-09

9.5

2009-10

12.3

2007-08

10.9

Figure 24: Daily waste sent to landfill


This service recycles small computer components and peripherals, CDs, DVDs, floppy disks, used printer cartridges, rechargeable batteries, old mobile telephones and their batteries and corks. Staff are also encouraged to bring these items in from home to use this recycling facility.

2009–10 achievements• The Legal Services Commissioner

committed to reduce waste generation. While some progress has been made towards this target, work will continue towards achieving this goal.

• A waste assessment was undertaken for the office which provided a series of initiatives for reducing waste, including installing a bokashi bin in each kitchen, purchasing keep cups for staff and implementing recycling programs in conjunction with other building tenants. Each of these recommendations is being investigated by the Green Team and management to achieve greater energy savings across the organisation.

2010–11 Targets• Reduce waste to landfill by 15%

by June 2011, compared with the 2007–08 baseline.

• Increase proportion of waste recycled to 80% by June 2011, compared with the 2007–08 baseline.

Paper consumptionThe Legal Services Commissioner recorded a 7% decrease in total paper consumption across 2009–10. This is a significant achievement in light of the highly variable nature of the Commissioner’s complaints handling activities and the continued increase in the number of education and outreach activities undertaken throughout the year.

Figure 25 shows a reduction in the purchase of 50–75% recycled content paper, and the increase in the figures for 0–50% recycled paper content. This is not due to the change in paper purchased, but to the supplier changing the information on recycled content for the purchased product. The supplier now rates the paper purchased at 30% recycled content. This is the second consecutive year that the supplier has changed the figures. New product with a higher recycled content will be investigated in the coming year.

The vast majority of the Commissioner’s paper and cardboard waste is recycled through a secure paper recycling contractor, although a small percentage of cardboard is put out for collection by the office cleaners when volumes are too great to be handled by the secure recycling contractor.

Other work to reduce paper consumption in the office includes double sided printing where possible. Options for using electronic documents instead of paper documents is also being encouraged in several instances of Commissioner and Board business. It is expected that changes to how some documents are distributed to their recipients will result in savings in paper usage.

2009–10 achievements• The previous year’s target set by the

Commissioner involved phasing out all printers which are not capable of printing double sided. Progress towards this target will continue as old printers are replaced with more current models.

2010–11 Targets• Reduce paper consumption by 10%

by June 2011, compared with the 2007–08 baseline.

• Increase the use of recycled paper consumption by 10% by June 2011, compared with the 2007–08 baseline.

Water consumptionThe offices of the Legal Services Commissioner are leased and water consumption for kitchens and bathrooms is included within the lease contract. Therefore no data on water consumption is available for reporting.

However the office is able to gauge the rate of flow for running taps. Peak flow has been measured at 7 litres per minute, which equates to a four star water efficiency labelling standards (WELS) rating. Additionally all taps have been fitted with aerators which allow a lower flow to have a greater volume when washing dishes and hands, thereby helping to reduce water use.

The Legal Services Commissioner has also replaced two less efficient dishwashers owing to breakdowns during 2009–10, and a new unit was purchased for a new kitchen in the expanded office area. The three new models purchased all had a WELS rating of 4 stars for water efficiency.

Figure 25: Paper consumption

INDICATOR 2009–10 2008–09Total units of copy paper used (A4 reams) 2079 1,887

Units of copy paper used per FTE (A4 reams/FTE)* 30.7 33.0

Percentage of 75–100% recycled content copy paper purchased (%) 0.0 0.0%



* Full time equivalents as at 30/6/10


Transport useThe Legal Services Commissioner does not operate a fleet of vehicles for business use. Instead, where transport is required for staff to attend meetings or events, public transport is the preferred option of travel. The Legal Services Commissioner provides public transport tickets and taxi vouchers for staff use.

For areas beyond the normal reach of public transport or the use of taxis, vehicles are hired through the State Government Vehicle Pool. Hire charges include the purchase of carbon offsets for each journey. Carbon offsets from the Vehicle Pool are managed by the Department of Sustainability and Environment.

The Legal Services Commissioner has a travel policy which includes the purchase of carbon credits for all air travel undertaken.

2009–10 achievements• The Commissioner continued

to promote the use of public transport to destinations throughout Victoria. In 2009–10 staff used public transport to travel between Melbourne and Swan Hill, Mildura, Wonthaggi, Bendigo and Seymour for regional events, and to numerous suburban locations for meetings, presentations and workshops in metropolitan areas.

2010–11 Target• To continue to promote the use of

public transport to destinations throughout Victoria.

Greenhouse gas emissionsBelow is a summary of the greenhouse gas emissions of the Legal Services Commissioner for the 2009–10 year, based on energy consumption, transport used and waste generated.

2009–10 achievements• In the 2009–10 report the Legal

Services Commissioner committed to reduce the greenhouse emissions of the Legal Services Commissioner by 5% by 2011. With the purchase of green power for 50% of the office’s needs through purchase of green power, a reduction of over 14.3% of greenhouse gases has already been achieved.

2010–11 Target• Reduce our greenhouse gas

emissions by 20% by June 2011, compared with the 2007–08 baseline.

Figure 26: Travel

INDICATOR 2009–10 2008–09Total distance travelled by aeroplane (km) 31,836 29,320

Total distance travelled by car (km) 2,799 N/A

Percentage of employees regularly ( 75 per cent of work attendance days) using public transport, cycling, walking, or car pooling to and from work or working from home. 96.10 96.97

Figure 27: Table Greenhouse gas emissions

INDICATOR 2009–10 2008–09Total greenhouse gas emissions associated with energy use (t CO2–e) 182.26 215.87

Total greenhouse gas emissions associated with vehicle fleet (t CO2–e) 0 0

Total greenhouse gas emissions associated with vehicle hire (t CO2–e) Not recorded Not recorded

Total greenhouse gas emissions associated with air travel (t CO2–e) (approximate) 9.80 9.05

Total greenhouse gas emissions associated with waste production (t CO2 e) 2.91 2.66

Greenhouse gas emissions offsets purchased (t CO2–e)* Not available 0

*Offsets are purchased through the State Government Vehicle Pool for all vehicles hired, and these offsets are administered by the Department of Sustainability and Environment, thus are not reported here. The Commissioner also has a policy of purchasing greenhouse gas offsets for all air travel taken, however the carbon credits for this method of travel were not available from the booking agent.

42

Chapter04

Financial statements

Chapter Four Financial statements 43 43

Accountable Officer’s and Chief Finance and Accounting Officer’s Declaration 44

Statement of comprehensive income 45

Balance sheet 46

Statement of changes in equity 47

Statement of cash flows 48

Notes to the financial statements 49 1 Summary of significant accounting policies 49 2 Income from transactions 59 3 Expenses from transactions 60 4 Cash and deposits 62 5 Receivables 62 6 Plant and equipment 63 7 Intangible Assets 64 8 Payables 64 9 Borrowings 64 10 Provisions 65 11 Superannuation (employee contributions) 66 12 Commitments for expenditure 67 13 Contingent assets and contingent liabilities 67 14 Financial instruments 67 15 Reserves and retained earnings 71 16 Ex-gratia payments 71 17 Responsible persons 71 18 Remuneration of executives 72 19 Related party transactions 72 20 Remuneration of auditors 72 21 Subsequent events 72 22 Glossary of terms 73

Contents

This financial report covers the Legal Services Commissioner as an individual entity and is presented in Australian currency.Legal Services Commissioner is a not-for-profit government agency of the state of Victoria. The Legal Services Commissioner was established pursuant to the Legal Profession Act 2004. Its principal address is Level 9, 330 Collins Street Melbourne.

A description of the nature of the Commissioner’s operations and its principal activities is included in the report of operations on pages 2 to 41 which does not form part of this financial report.

For queries in relation to our reporting please call 1300 796 344, email [email protected] or see our website www.lsc.vic.gov.au


Legal Services Comml.,.ioner Directors· report

30 June2010

Accountable Officer's and Chief Finance and Accounting Ofllcer 's declaration

We certify that the attached financial report for the Legal Services Commi!>Sioner has been prepared in accordance with Standing Dlredion 4,2 of the Financi81 MBnagement Act 1994, applicable Financial Reporting Direcbons, Australian Accounting Standards, Including Interpretations. and other mandatory professional reporting req~irements

We furtlu;tr state that. In our opinion, tile information set out In the comprehensive operating statement. balance sheet, statement of changes In equity, cash !low sl<!tement and notes forming ~n of the financi<~l statements. pre$ents fatrly the financial transactlo_ns during the year ended SO June 2010 and financial position of the legal Sel\lices Commissioner at 30 June 2010

We are not aware. of any circumstance which would render any partlculltrs Included in the financial report 10 be misleading or Inaccurate.

We authorise the attached financial statements for issue on the 7"' Septembu 2010

M McGarvie Commissioner

legal Services Commissioner ':l:'lbourne 7 September 2010

D Giliespie Chtef Finance and Accounting Officer Legal Services Commissioner Melbourne 7"' September 201 0

-2·

Chapter Four Financial statements 45

Statement of comprehensive incomeFor the year ended 30 June 2010

2010 2009

NOTES $ $

Income from transactions

Legal Services Board (LSB) contributions 2(a) 10,086,106 9,068,287

Interest 2(b) 24,163 57,930

Other income 2(c) 97,829 219,579

Total income from transactions 10,208,098 9,345,796

Expenses from transactions

Depreciation and amortisation expense 3 (a) (229,548) (27,198)

Employee benefits 3 (b) (7,151,859) (5,732,257)

Consultants and legal expenses 3 (c) (858,514) (1,048,753)

Supplies and services 3 (d) (794,087) (1,434,949)

Other operating expenses 3 (e) (1,191,228) (1,023,196)

Total expenses from transactions (10,225,236) (9,266,353)

Net result from transactions (net operating balance) (17,138) 79,443

Other economic flows — included in net result

Gain (loss) from the revaluation of the long service leave provision due to changes in the present value of the discount rate (12,159) (32,506)

Gain (loss) on disposal of assets 6,751 (1,915)

Total other economic flows included in net result (5,408) (34,421)

Net result (22,546) 45,022

Other economic flows other non owner changes in equity – –

Comprehensive result (22,546) 45,022

The comprehensive operating statement should be read in conjunction with the accompanying notes included on pages 49 to 73.


Balance sheetAs at 30 June 2010

2010 2009

NOTES $ $

Assets

Financial assets

Cash and deposits 4,14 1,439,877 1,036,953

Receivables 5,14 407,778 1,186,969

Total financial assets 1,847,655 2,223,922

Non-financial assets

Non financial assets classified as held for sale – 8,030

Plant and equipment 6 139,981 119,867

Intangible assets 7 924,215 666,638

Prepayments 73,263 32,234

Total non-financial assets 1,137,459 826,769

Total assets 2,985,114 3,050,691

Liabilities

Payables 8 893,698 1,129,678

Borrowings 9 50,084 43,258

Provisions 10 1,056,868 870,745

Total liabilities 2,000,650 2,043,681

Net assets 984,464 1,007,010

Equity

Contributed capital 29,366 29,366

Accumulated surplus 15 955,098 977,644

Net worth 984,464 1,007,010

Commitments for expenditure 12

Contingent assets and contingent liabilities 13

The above balance sheet should be read in conjunction with the accompanying notes included on pages 49 to 73.


Statement of changes in equityFor the financial year ended 30 June 2010

CHANGES DUE TO

2010Equity at

1 July 2009

Total comprehensive

result

Transactions with owners in

their capacity as owners

Equity at 30 June 2010

$ $ $ $

Accumulated surplus 977,644 (22,546) – 955,098

Contributions by owners 29,366 – – 29,366

Total equity at end of the financial year 1,007,010 (22,546) – 984,464

CHANGES DUE TO

2009Equity at

1 July 2008

Total Comprehensive

result

Transactions with owners in

their capacity as owners

Equity at 30 June 2009

$ $ $ $

Accumulated surplus 932,624 45,020 – 977,644

Contributions by owners 29,366 – – 29,366

Total equity at end of the financial year 961,990 45,020 – 1,007,010

The statement of changes in equity should be read in conjunction with the accompanying notes included on pages 49 to 73.


Cash flow statementFor the financial year ended 30 June 2010

2010 2009

NOTES $ $

Cash flows from operating activities

Receipts from transactions with LSB 11,020,739 8,215,686

Other income 97,829 384,229

Goods and Services Tax recovered from ATO 135,692 259,096

Interest received 24,163 57,930

Total receipts 11,278,423 8,916,941

Payments

Payments to suppliers and employees (10,383,116) (9,212,253)

Total payments (10,383,116) (9,212,253)

Net cash flows from/(used in) operating activities 4 895,306 (295,312)

Cash flows from investing activities

Payments for non financial assets (531,851) (628,281)

Proceeds from sale of non-financial assets 32,642 32,192

Net cash flows from/(used in) investing activities (499,209) (596,089)

Cash flows from financing activities

Payments for financing lease 6,826 (46,508)

Net cash flows from/(used in) financing activities 6,826 (46,508)

Net increase (decrease) in cash and cash equivalents 402,923 (937,909)

Cash and cash equivalents at beginning of the financial year 1,036,953 1,974,862

Cash and cash equivalents at end of financial year 1,439,876 1,036,953

The cash flow statement should be read in conjunction with the accompanying notes included on pages 49 to 73.


Notes to the financial statements30 June 2010

1 – Summary of significant accounting policies

The annual financial statements represent the audited general purpose financial statements for the Legal Services Commissioner. To gain a better understanding of the terminology used in this report, a glossary of terms can be found in note 22.

A. Statement of Compliance

These financial statements have been prepared in accordance with the Financial Management Act 1994 and applicable Australian Accounting Standards, including interpretations (AASs). AASs include Australian equivalents to International Financial Reporting Standards.

Where applicable, those paragraphs of the AASs applicable to not for profit entities have been applied.

B. Basis of accounting preparation and measurement

The accrual basis of accounting has been applied in the preparation of these financial statements whereby assets, liabilities, equity, income and expenses are recognised in the reporting period to which they relate, regardless of when cash is received or paid.

These financial statements are presented in Australian dollars, the functional and presentation currency of the Legal Services Commissioner.

In the application of AASs, management is required to make judgements, estimates and assumptions about carrying values of assets and liabilities that are not readily apparent from other sources. The estimates and associated assumptions are based on historical experience and various other factors that are believed to be reasonable under the circumstances, the results of which form the basis of making the judgements. Actual results may differ from these estimates.

The estimates and underlying assumptions are reviewed on an ongoing basis. Revisions to accounting estimates are recognised in the period in which the estimate is revised if the revision affects only that period or in the period of the revision, and future periods if the revision affects both current and future periods. Judgements made by management in the application of AASs that have significant effects on the financial statements and estimates, with a risk of material adjustments in the subsequent reporting period, are disclosed throughout the notes to the financial statements.

The report has been prepared in accordance with the historical cost convention except for:

• non-current physical assets which, subsequent to acquisition, are measured at a revalued amount being their fair value at the date of the revaluation less any subsequent accumulated depreciation and subsequent impairment losses. Revaluations are made with sufficient regularity

to ensure that the carrying amounts do not materially differ from their fair value;

• the fair value of an asset is generally based on its depreciated replacement value;

Historical cost is based on the fair values of the consideration given in exchange for assets.

Accounting policies are selected and applied in a manner which ensures that the resulting financial information satisfies the concepts of relevance and reliability, thereby ensuring that the substance of the underlying transactions or other events is reported.

The accounting policies set out below have ben applied in preparing the financial statements for the year ended 30 June 2010 and the comparative information presented for the year ended 30 June 2009.

C. Reporting Entity

The financial statements cover the Legal Services Commissioner as an individual reporting entity. The Legal Services Commissioner commenced on 12 December 2005 following the proclamation of the Legal Profession Act. Its principal address is:

Legal Services CommissionerLevel 9330 Collins StreetMELBOURNE VIC 3000

The Commissioner is funded from the Legal Services Board Public Purpose Fund as per Section 6.7.7 of the Legal Professional Act 2004


D. Scope and presentation of financial statements

Comprehensive operating statement

Income and expenses in the comprehensive operating statement are classified according to whether or not they arise from ‘transactions’ or ‘other economic flows’. This classification is consistent with the whole of government reporting format and is allowed under AASB 101 Presentation of financial statements.

‘Transactions’ are those economic flows that are considered to arise as a result of policy decisions, usually interactions between two entities by mutual agreement. Transactions also include flows within an entity, such as depreciation where the owner is simultaneously acting as the owner of the depreciating asset and as the consumer of the service provided by the asset. Transactions can be in kind (e.g. assets provided/given free of charge or for nominal consideration) or where the financial consideration is cash.

‘Other economic flows’ are changes arising from market re-measurements. They include gains or losses from disposal, revaluations and impairments of non-current physical and intangible assets and fair value changes of financial instruments.

The net result is equivalent to profit or loss derived in accordance with AASs.

Balance Sheet

Assets and liabilities are presented in liquidity order with assets aggregated into, financial assets and non-financial assets.

Current and non-current assets and liabilities (those expected to be recovered or settled beyond 12 months) are disclosed in the notes, where relevant.

Statement of changes in equity

The statement of changes in equity presents reconciliations of equity opening balance at the beginning of the reporting period to the closing balance at the end of the reporting period.

Cash flow statement

Cash flows are classified according to whether or not they arise from operating activities, investing activities or financing activities. This classification is consistent with requirements under AASB 107 Statement of cash flows.

E. Income from transactions

Income is recognised to the extent that it is probable that the economic benefits will flow to the entity and the income can be reliably measured.

Interest income

Interest income includes unwinding over time of discounts on financial assets and interest received on bank and other investments.

Interest income is recognised on a time proportionate basis that takes into account the effective yield on the financial asset.

Net realised and unrealised gains and losses on the revaluation of investments do not form part of income from transactions, but are reported from other economic flows in the net result forming part of the total change in net worth in the comprehensive result.

Funding from the Legal Services Board

The Legal Profession Act 2004 section 6.7.7 states that the Legal Services Commissioner must be paid such amount as determined by the Board to meet the expenses of, and discharge the liabilities incurred by, the Commissioner in performing functions under this Act during the year.

All income received by the Legal Services Commissioner is paid into the Operating Account with the exception of Disputed Costs which are paid into a separate account.

Other gains/(losses) from other economic flows

Other gains/(losses) from other economic flows include the gains or losses from reclassifications of amounts from reserves and/or accumulated surplus to net result, and from the revaluation of the present value of the long service leave liability due to changes in the bond interest rates.

F. Expenses from transactions

Expenses are recognised as they are incurred and reported in the financial year to which they relate.

1 – Summary of significant accounting policies (continued)


Employee expenses

Employee expenses include superannuation expenses which are reported differently depending upon whether employees are members of defined benefit or defined contribution plans. In relation to defined contribution (i.e. accumulation) superannuation plans, the associated expense is simply the employer contributions that are paid or payable in respect of employees who are members of these plans during the reporting period. Employer superannuation expenses in relation to employees who are members of defined benefit superannuation plans are described below.

Superannuation

The amount recognised in the comprehensive operating statement in relation to employer contributions for members of defined benefit superannuation plans is simply the employer contributions that are paid or payable to these plans during the reporting period. The level of these contributions will vary depending upon the relevant rules of each plan, and is based upon actuarial advice.

The Department of Treasury and Finance (DTF) in their Annual Financial Statements, recognise on behalf of the State as the sponsoring employer, the net defined benefit

cost related to members of the plans. Refer to DTF’s Annual Financial Statements for more detailed disclosures in relation to these plans.

Contributions to defined contribution plans are expensed when incurred.

Depreciation and amortisation

All plant and equipment and other non-current physical assets that have a limited useful life are depreciated. Depreciation is generally calculated on a straight-line basis, at rates that allocate the asset’s value, less any estimated residual value, over its estimated useful life.

Intangible produced assets with finite useful lives are amortised as an expense from transactions on a systematic (typically straight line) basis over the asset’s useful life. Amortisation begins when the asset is available for use, that is, when it is in the location and condition necessary for it to be capable of operating in the manner intended by management. The amortisation period and the amortisation method for an intangible asset with a finite useful life are reviewed at least at the end of each annual reporting period.

The following are typical estimated useful lives for the different asset classes for both current and prior years:

Supplies and services

Supplies and services generally represent the day-to-day running costs, including maintenance costs, incurred in the normal operation of the Commissioner. These items are recognised as an expense in the reporting period in which they are incurred.

Recharge of services

The Legal Services Board (LSB) to the Legal Services Commissioner (LSC)

Expenses incurred by the Board for occupancy, depreciation and other relevant operating costs have been proportioned before being expensed and are charged directly to the LSB and LSC.

Legal Services Commissioner to Legal Services Board

Under section 6.4.1 of the Legal Professions Act 2004, staff supporting the activities of the Board is classified as employees of the Legal Services Commissioner, who employs all staff under Part 3 of the Public Sector Management and Employment Act 1998.

The LSC recharges staff salaries and on costs to the Legal Services Board for those staff undertaking Board functions.

2010 2009

Motor vehicles 3 years 3 years

Computer equipment 3 to 5 years 3 to 5 years

Office furniture 5 to 10 years 5 to 10 years

Intangibles 5 years 5 years



Other operating expenses

Other operating expenses generally represent the day to day running costs incurred in normal operations.

Bad and doubtful debts

Bad and doubtful debts are assessed on a regular basis. Those bad debts considered as written off by mutual consent are classified as a transaction expense. Those written off unilaterally and the allowance for doubtful receivables are classified as other economic flows.

Other economic flows included in the net result

Other economic flows measure the change in volume or value of assets or liabilities that do not result from transactions.

Impairment of non-financial assets

Intangible assets with indefinite useful lives (and intangible assets not yet available for use) are tested annually for impairment (i.e. as to whether their carrying value exceeds their recoverable amount, and so require write-downs) and whenever there is an indication that the asset may be impaired.

All other assets are assessed annually for indications of impairment, except for financial assets.

If there is an indication of impairment, the assets concerned are tested as to whether their carrying value exceeds their possible recoverable amount.

Where an asset’s carrying value exceeds its recoverable amount, the difference is written off as another economic flow, except to the extent that the write down can be debited to an asset revaluation surplus amount applicable to that class of asset.

It is deemed that, in the event of the loss of an asset, the future economic benefits arising from the use of the asset will be replaced unless a specific decision to the contrary has been made. The recoverable amount for most assets is measured at the higher of depreciated replacement cost and fair value less costs to sell. Recoverable amount for assets held primarily to generate net cash inflows is measured at the higher of the present value of future cash flows expected to be obtained from the asset and fair value less costs to sell.

Net gain/(loss) on financial instruments

Net gain/(loss) on financial instruments includes:

• realised and unrealised gains and losses from revaluations of financial instruments that are designated at fair value through profit or loss or held-for-trading;

• impairment and reversal of impairment for financial instruments at amortised cost; and

• disposals of financial assets.

Revaluations of financial instruments

The revaluation gain/(loss) on financial instruments at fair value excludes dividends or interest earned on financial assets, which is reported as part of income from transactions.

Other gains/(losses) from other economic flows

Other gains/(losses) from other economic flows include gains or losses from the revaluation of the present value of the long service liability due to changes in the bond interest rates.

G. Financial assets

Cash and deposits

Cash and deposits, including cash equivalents, comprise cash on hand and cash at bank, deposits at call and highly liquid investments with an original maturity of three months or less, which are held for the purpose of meeting short term cash commitments rather then for investment purposes, and which are readily convertible to known amounts of cash and are subject to an insignificant risk of changes in value.

Receivables

Receivables consist predominately of amounts owing from the Legal Services Board, debtors in relation to goods and services, accrued income and GST input tax credits recoverable.

Receivables are recognised at fair value.

A provision for doubtful receivables is made when there is objective evidence that the debts may not be collected and bad debts are written off when identified (refer to Impairment of financial asset below).

Investments and other financial assets

Investments are recognised and de-recognised on trade date where purchase or sale of an investment is



under a contract whose terms require delivery of the investment within the timeframe established by the market concerned, and are initially measured at fair value, net of transaction costs.

Investments are classified as loans and receivables.

The classification depends on the purpose for which the investments were acquired. Management determines the classification of its investments at initial recognition.

Impairment of financial assets

The LSC assesses at the end of each reporting period whether there is objective evidence that a financial asset or group of financial assets is impaired. All financial assets, except those measured at fair value through profit or loss, are subject to annual review for impairment.

Bad and doubtful debts for financial assets are assessed on a regular basis. Those bad debts considered as written off by mutual consent are classified as a transaction expense. The bad debts not written off by mutual consent and allowance for doubtful receivables are classified as ‘other economic flows’.

In assessing impairment of statutory (non-contractual) financial assets which are not financial instruments, the Legal Services Commissioner applies professional judgement in assessing materiality and using estimates, averages and computational shortcuts in accordance with AASB 136 Impairment of assets.

H. Non-financial assets

Non-financial assets classified as held-for-sale

Non-financial assets classified as held for sale are measured at the lower of carrying amount and fair value less costs to sell, and are not subject to depreciation.

Non-financial assets are treated as current and classified as held for sale if their carrying amount will be recovered through a sale transaction rather then through continuing use. This condition is regarded as met only when the sale is highly probable and the asset’s sale is expected to be completed within 12 months from the date of classification.

Plant and equipment

All non-current physical assets are measured initially at cost and subsequently revalued at fair value less accumulated depreciation and impairment.

Revaluations of non-current physical assets

Non-current physical assets are measured at fair value in accordance with FRD 103D Non-current physical assets issued by the Minister of Finance.

Revaluation increases or decreases arise from differences between an asset’s carrying value and fair value.

Net revaluation increases (where the carrying amount of a class of assets is increased as a result of a revaluation) are recognised in other comprehensive income and accumulated in equity under the revaluation surplus, except that the net revaluation reserve increase shall be recognised in the net result to the extent that it reverses a net revaluation decrease in respect

of the same class of plant and equipment previously recognised as an expense (other economic flows) in the net result.

Net revaluation decreases are recognised immediately as expenses (other economic flows) in the net result, except that the net revaluation decrease shall be recognised in other comprehensive income to the extent that a credit balance exists in the revaluation surplus in respect of the same class of plant and equipment. The net revaluation decrease recognised in other comprehensive income reduces the amount accumulated in equity under revaluation surplus.

Revaluation increases and decreases relating to individual assets within a class of plant and equipment, are offset against one another within the class but are not offset in respect of assets in different classes. Any revaluation surplus is not normally transferred to accumulated funds on de-recognition of the relevant asset.

Intangible assets

Intangible assets are initially recognised at cost. Subsequently, intangible assets with finite useful lives are carried at cost less accumulated amortisation and accumulated impairment losses. Costs incurred subsequent to initial acquisition are capitalised when it is expected that additional future economic benefits will flow to the Legal Services Commissioner.

Prepayments

Other non-financial assets include prepayments which represent payments in advance of receipt of goods and services or that part of expenditure made in one accounting period covering a term extending beyond that period.



Impairment of non-financial assets

Refer to Note 1 E Other economic flows included in net result.

I. Liabilities

Payables

Payables consist predominantly of accounts payable and other sundry liabilities. Accounts payable represent liabilities for goods and services provided to the Legal Services Commissioner prior to the end of the financial year that are unpaid, and arise when the Legal Services Commissioner becomes obliged to make future payments in respect of the purchase of these goods and services.

Other liabilities included in payables consist of disputed cost payables, accrued expenses, goods and services tax and income tax payables.

Payables are recognised at fair value.

Provisions

Provisions are recognised when the Legal Services Commissioner has a present obligation, the future sacrifice of economic benefits is probable, and the amount of the provision can be measured reliably.

The amount recognised as a provision is the best estimate of the consideration required to settle the present obligation at the end of the reporting period, taking into account the risks and uncertainties surrounding the obligation. Where a provision is measured using the cashflows estimated to settle the present obligation, its carrying amount is the present value of those cashflows.

Employee benefits

Provision is made for benefits accruing to employees in respect of wages and salaries, annual leave and long service leave for services rendered to the reporting date.

(i) Wages and salaries, annual leave and sick leave

Liabilities for wages and salaries, including non-monetary benefits, annual leave and accumulating sick leave which are expected to be settled within 12 months of the reporting period, are recognised in the provision for employee benefits. These liabilities are classified as current liabilities and measured at their nominal values.

Those liabilities that are not expected to be settled within 12 months are recognised in the provision for employee benefits as noncurrent liabilities, measured at present value of the amounts expected to be paid when the liabilities are settled using the remuneration rate expected to apply at the time of settlement.

(ii) Long service leave

Liability for long service leave (LSL) is recognised in the provision for employee benefits.

Current liabilities — unconditional LSL

is disclosed in the notes to the financial statements as a current liability even where the Legal Services Commissioner does not expect to settle the liability within 12 months because it will not have the unconditional right to defer the settlement of the entitlements should an employee take leave within 12 months.

The components of this current LSL liability are measured at:

• nominal value component that the Commissioner expects to settle within 12 months; and

• present value component that the Commissioner does not expect to settle within 12 months.

Non-current liability — conditional LSL

is disclosed as a non-current liability. There is an unconditional right to defer the settlement of the entitlement until the employee has completed the requisite years of service.

This non-current LSL liability is measured at present value. Any gain or loss following revaluation of the present value of non-current LSL liability is recognised as a transaction, except to the extent that a gain of loss arises due to changes in bond interest rates for which it is then recognised as an other economic flow (refer to Note 1 E Other economic flows include in net result).

(iii) Termination benefits

Termination benefits are payable when employment is terminated before the normal retirement date, or when an employee accepts voluntary redundancy in exchange for these benefits. The Legal Services Commissioner recognises termination benefits when it is demonstrably committed to either terminating the employment of current employees according to a detailed formal plan without possibility of withdrawal or providing termination benefits as a result of an offer made to encourage voluntary redundancy. Benefits falling due more than 12 months after balance sheet date are discounted to present value.


Employee benefits on-costs

Employee benefits on-costs such as payroll tax, workers compensation and superannuation are recognised separately from the provision for employee benefits.

J. Leases

A lease is a right to use an asset for an agreed period of time in exchange for payment.

Leases are classified at their inception as either operating or finance leases based on the economic substance of the agreement so as to reflect the risks and rewards incidental to ownership. Leases of plant and equipment are classified as finance infrastructure leases whenever the terms of the lease transfer substantially all the risks and rewards of ownership from the lessor to the lessee. All other leases are classified as operating leases.

K. Equity

Contributions by owners

Additions to net assets which have been designated as contributions by owners are recognised as contributed capital. Other transfers that are in the nature of contributions or distributions have also been designated as contributions by owners.

Transfers of net assets arising from administrative restructurings are treated as distributions to or contributions by owners.

L. Commitments

Commitments are disclosed at their nominal value and inclusive of the goods and services tax (GST) payable. In addition, where it is considered appropriate and provides additional relevant information to users, the net present values of significant individual projects are stated.

M. Contingent assets and contingent liabilities

Contingent assets and contingent liabilities are not recognised in the balance sheet, but are disclosed by way of a note and, if quantifiable, are measured at nominal value. Contingent assets and liabilities are presented inclusive of GST receivables and payables respectively.

N. Accounting for the Goods and Services Tax (GST)

Income, expenses and assets are recognised net of the amount of associated GST, unless the GST incurred is not recoverable from the taxation authority. In this case it is recognised as part of the cost of acquisition of the asset or as part of the expense.

Receivables and payables are stated inclusive of the amount of GST receivable or payable. The net amount of GST recoverable from, or payable to, the taxation authority is included with other receivables or payables in the balance sheet.

Cash flows are presented on a gross basis. The GST components of cash flows arising from investing or financing activities which are recoverable from, or payable to the taxation authority, are presented as operating cash flow.

O. Events after the reporting period

Assets, liabilities, income or expenses arise from past transactions or other past events. Where the transactions result from an agreement between the Legal Services Commissioner and other parties, the transactions are only recognised where the agreement is irrevocable at or before the end of the reporting period. Adjustments are made to amounts recognised in the financial statements for events which occur after the reporting period and before the date the financial statements are authorised for issue, where those events provide information about conditions which existed at the reporting period. Note disclosure is made about events between the end of the reporting period and the date the financial statements are authorised for issue where the events relate to conditions which arose after the reporting period and which may have a material impact on the results of subsequent reporting periods.

P. Rounding of amounts

Amounts in the financial statements have been rounded to the nearest thousand, unless otherwise stated. All totals are rounded additions of unrounded amounts; discrepancies between totals and sums of components are due to rounding. Figures in the financial statements may not equate due to rounding.


Q. AASs issued that are not yet effective

Certain new AASs have been published that are not mandatory for 30 June 2010 reporting period. DTF assesses the impact of these new standards and advises the Legal Services Commissioner of their applicability and early adoption where applicable.

As at 30 June 2010, the following standards and interpretations (applicable to the Legal Services Commissioner) had been issued but were not mandatory for the financial year ending 30 June 2010. The Legal Services Commissioner has not early adopted these standards.

STANDARD/ INTERPRETATION SUMMARY

APPLICABLE FOR ANNUAL REPORTING PERIODS BEGINNING ON

IMPACT FINANCIAL STATEMENTS

AASB 9 Financial instruments

This standard simplifies requirements for the classification and measurement of financial assets resulting from Phase 1 of the IASB's project to replace IAS 39 Financial instruments: recognition and measurement (AASB 139 financial instruments: recognition and measurement).

Beginning 1 January 2013.

Detail of impact is still being assessed.

AASB 124 Related party disclosures (Dec 2009)

Government related entities have been granted partial exemption with certain disclosure requirements.

Beginning 1 January 2011

Preliminary assessment suggests that impact is insignificant. However, the Legal Services Board is still assessing the detailed impact and whether to early adopt.

AASB 2009–5 Further amendments to Australian Accounting Standards arising from the annual improvements project (AASB 5, 8, 101, 107, 117,118, 136 and 139)

Some amendments will result in accounting changes for presentation, recognition or measurement purposes, while other amendments will relate to terminology and editorial changes.

Beginning 1 Jan 2010 Terminology and editorial changes. Impact minor.

AASB 2009–8 Amendments to Australian Accounting Standards—group cash-settled share based payment transactions (AASB 2)

The amendments clarify the scope of AASB 2.

Beginning 1 Jan 2010 No impact. AASB 2 does not apply to government departments or entities; consequently this standard does not apply.

AASB 2009–9 Amendments to Australian Accounting Standards—additional exemptions for first time adopters (AASB 1)

Applies to entities adopting Australian Accounting Standards for the first time, to ensure entities will not face undue cost or effort in the transition process in particular situations.

Beginning 1 Jan 2010 No impact. Relates only to first time adopters of Australian Accounting Standards.

AASB 2009–10 Amendments to Australian Accounting Standards—classification of rights issues (AASB 132)

The Standard makes amendments to AASB 132, stating that rights issues must now be classed as equity rather then derivative liabilities.

Beginning 1 Feb 2010 No impact. The Legal Services Commissioner do not issue rights, warrants and options, consequently the amendment does not impact on the statements.






AASB 2009–11 Amendments to Australian Accounting Standards arising from AASB 9 [AASB 1, 3, 4, 5, 7, 101, 102, 108, 112, 118, 121, 127, 128, 131, 132, 136, 139, 1023 and 1038 and Interpretations 10 and 12]

This gives rise to consequential changes arising from the issuance of AASB 9.


Details of impact still being assessed.

AASB 2009–12 Amendments to Australian Accounting Standards [AASB 5, 8, 108, 110, 112, 119, 133, 137, 139, 1023 and 1031 and Interpretations 2, 4, 16, 1039 and 1052]

This standard amends AASB 8 to require an entity to exercise judgement in assessing whether a government and entities known to be under the control of that government are considered a single customer for purposes of certain operating segment disclosures. This standard also makes numerous editorial amendments to other AASs.


No impact as the amendments only apply to those entities to whom AASB 8 applies, which are for-profit entities except for-profit government departments.

AASB 2009–13 Amendments to Australian Accounting Standards—standards arising from interpretation 19 (AASB 1)

Consequential amendment to AASB 1 arising from publication of interpretation 19.

Beginning 1 Jul 2010 The Legal Services Commissioner do not extinguish financial liabilities with equity instruments, therefore requirements of Interpretation 19 and related amendments have no impact.

AASB 2009–14 Amendments to Australian Interpretation —Prepayments of a minimum funding requirement [AASB Interpretation 14]

Amendment to Interpretation 14 arising from the issuance of prepayments of a minimum funding requirement.


Expected to have no significant impact.

AASB 124 Related party disclosures (Dec 2009)

Government related entities have been granted partial exemption with certain disclosure requirements.

Beginning 1 Jan 2011 Preliminary assessment suggests that impact is insignificant. However, the Legal Services Commissioner is still assessing the detailed impact and whether to early adopt.

AASB 2010–1 Amendments to Australian Accounting Standards — Limited Exemption from Comparative AASB 7 Disclosures for First-time Adopters [AASB 1 & AASB 7]

This amendment provides limited exemptions from the requirements of adhering to AASB 1 and AASB 7 that arise from AASB 2009 2.

Beginning 1 July 2010 These exemptions are unlikely to have an impact on the Legal Services Commissioner because it is not a first time adoption.






Erratum General Terminology changes

Editorial amendments to a range of Australian Accounting Standards and Interpretations.


Terminology and editorial changes. Impact minor.

Interpretation 19 Extinguishing Financial Liabilities with Equity Instruments

Guidance to assist entity in accounting for transactions that involves extinguishing a liability fully or partially by issuing equity instruments to the creditor.

Beginning 1 July 2010 No impact as this interpretation only affects entities that issue equity instruments.

AASB 1053 Application of Different Tiers of Australian Accounting Standards

This Standard establishes a differential financial reporting framework consisting of two tiers of reporting requirements for preparing general purpose financial statements.

Beginning 1 July 2013 The impact of this Standard may affect disclosures in the financial reports of certain types of entities [public sector entities (except whole of government and general government sector)] where reduced disclosure requirements may apply. The Standard does not affect the operating result or financial position.

AASB 2010–2 Amendments to Australian Accounting Standards arising from Reduced Disclosure Requirements

This Standard makes amendments to many Australian Accounting Standards, including Interpretations, to introduce reduced disclosure requirements to the pronouncements for application by certain types of entities.

Beginning 1 July 2013 Does not affect financial measurement or recognition, so is not expected to have any impact on financial result or position. May reduce some note disclosures in financial statements.



2010 2009

$ $

Legal Services Board (LSB) contributions

LSB funding (section 6.7.7) 7,000,805 6,330,360

Employee benefits (see note 3b) 3,085,301 2,737,927

Total Legal Services Board (LSB) contributions 10,086,106 9,068,287

(b) Interest

Interest from financial assets not at fair value through profit and loss:

Interest on bank deposits 24,163 57,930

Total interest 24,163 57,930

(c) Other income

Other revenue

Costs and fines 90,057 208,281

Charge for assets 7,772 11,298

Total other income 97,829 219,579

Total income from transactions 10,208,098 9,345,796

2 – Income from transactions


2010 2009

$ $

(a) Depreciation and amortisation expense

Motor Vehicle 16,248 19,067

Plant and equipment 26,593 8,131

Intangible assets 186,707 –

Total depreciation and amortisation expense 229,548 27,198

(b) Employee benefits

Salaries 5,889,382 4,583,455

Superannuation 505,647 402,583

Temporary staff 173,382 187,093

Provisions 173,964 220,359

Payroll and Workcover 321,510 253,179

Training 61,626 35,903

Other 26,349 49,684

7,151,859 5,732,257

Less recharge from Service Agreement with the Legal Services Board:

Salaries, wages and other employee benefits (3,085,301) (2,737,927)

Net employee benefits expense 4,066,558 2,994,330

(c) Consultants and Legal Expenses

Investigations 800,045 727,759

Legal other 40,832 33,756

Consultants 17,637 287,237

Total consultants and legal expenses 858,514 1,048,753

3 – Expenses from transactions

Continued onto the next page


2010 2009

$ $

(d) Supplies and Services

Cost of supplies Law Institute of Victoria 735,000 1,381,633

Cost of supplies Victorian Bar Inc. 59,087 53,316

Total supplies and services 794,087 1,434,949

(e) Other operating expenses

Motor vehicle 54,926 53,210

Community and education 19,068 22,718

Telephone and fax 21,410 14,710

Information technology 243,113 114,826

General administration 128,129 100,487

Occupancy 475,679 471,910

Travel and accommodation 9,689 11,308

Audit fees 61,848 48,305

Bank fees 2,658 2,692

Insurance 64,734 64,750

Postage, printing and stationery 109,973 118,820

Total other operating expenses 1,191,228 1,023,196

3 – Expenses from transactions (continued)


4 – Cash and deposits

2010 2009

NOTES $ $

(a) Reconciliation of cash and cash equivalents

Total cash and deposits disclosed in the balance sheet 1,034,090 717,533

Bank account held for disputed costs 405,789 319,420

Total cash and deposits 1,439,876 1,036,953

(b) Reconciliation of net cash result for the period to net cashflows from operating activities

Comprehensive result (22,546) 45,022

Non cash movements:

Depreciation and amortisation 229,548 27,198

(Gain)/loss in disposal of fixed assets (6,751) 1,915

(Gain)/ loss from the revaluation of the long service leave provision due to changes in the present value of the discount rate 12,159 32,506

Movements in assets and liabilities:

(Increase)/decrease in receivables 1,763 (3,915)

(Increase)/decrease in GST recoverable 18,753 (19,203)

(Increase)/decrease in prepayments (41,029) (25,524)

(Increase)/decrease in accrued income 759,175 (848,687)

Increase/(decrease) in payables (235,980) 274,718

Increase/(decrease) in provisions 180,214 252,865

Net cash flows from/(used in) operating activities 895,306 (263,105)

5 – Receivables

2010 2009

$ $

Current receivables

Trade receivables 2,667 3,930

Accrued income 361,450 1,120,625

GST recoverable 43,661 62,414

Total receivables 407,778 1,186,969


Plant and equipment are classified primarily by the purpose for which the assets are used according to one of the five ‘Purpose Groups’ based upon Government Classification (GPC). All assets within a ‘Purposes Group’ are further sub-categorised to the asset’s nature, with each sub-category being classified as a separate class of asset for financial reporting purposes.

(a) Classification by ‘Purpose Groups’ Carrying amounts Public safety and environment

Nature based classification 2010 2009

$ $

Computer equipment

At cost 97,451 80,329

Less: accumulated depreciation (32,431) (7,511)

65,020 72,818

Office furniture

At cost 27,961 12,017

Less: accumulated depreciation (2,293) (620)

25,668 11,397

Motor vehicle lease

At cost 62,532 67,931

Less: accumulated depreciation (13,239) (32,279)

49,293 35,652

Net carrying amount of plant and equipment 139,981 119,867

6 – Plant and equipment

b) Movements in carrying amounts classification by ‘Public Safety and Environment’ purpose group

Leased motor vehicles Computer equipment Office

furniture Total

2010 2009 2010 2009 2010 2009 2010 2009

$ $ $ $ $ $ $ $

Opening balance 35,652 88,827 72,818 – 11,397 – 119,867 88,827

Additions 62,531 – 10,511 80,329 15,944 12,017 88,986 92,346

Disposals (32,642) (34,108) – – – – (32,642) (34,108)

Adjustments – – 6,611 – – – 6,611 –

Depreciation (16,248) (19,067) (24,920) (7,511) (1,673) (620) (42,841) (27,198)

Closing balance 49,293 35,652 65,020 72,818 25,668 11,397 139,981 119,867

Prior years classification of assets has been amended to reflect reclassification of office equipment as computer equipment in 2010.


7 – Intangible Assets

2010 2009

$ $

Gross carrying amount

Opening balance 666,638 138,733

Additions 444,284 527,905

Closing balance 1,110,922 666,638

Accumulated amortisation and impairment

Opening balance – –

Amortisation expense (186,707) –

Closing balance (186,707) –

Net book value at end of financial year 924,215 666,638

8 – Payables

9 – Borrowings

2010 2009

$ $

Accrued expenses 379,141 593,937

PAYG tax and GST payable 106,053 216,299

Disputed costs 408,504 319,442

Total payables 893,698 1,129,678

Maturity analysis of contractual payables Please refer to Table 14.6 in Note 14 for the maturity analysis of payables.

2010 2009

$ $

Borrowings

Lease liabilities (note 12) 50,084 43,258

Total Borrowings 50,084 43,258

Secured by the assets leased. Finance leases are effectively secured as the rights to the leased assets revert to the lessor in the event of the default.

(a) Maturity analysis of borrowings Please refer to table 14.6 in Note 14 for the maturity analysis of borrowings.

(b) Defaults and breaches During the current and prior year, there were no defaults and breaches of any of the borrowings.


10 – Provisions

2010 2009

$ $

Current Provisions

Employee benefits — annual leave

Unconditional and expected to be settled within 12 months 534,414 394,489

Employee benefits — long service leave


Unconditional and expected to be settled after 12 months 232,538 262,717

784,468 676,998

Provisions relating to employee benefits on-costs


Unconditional and expected to be settled after 12 months 35,198 39,624

116,033 100,117

Total current provisions 900,501 777,115

Non-current provisions

Employee benefits 135,810 81,359

Provisions relating to employee benefit on costs 20,557 12,271

Total non-current provisions 156,367 93,630

Total provisions 1,056,868 870,745

Employee benefits and related on costs

Current employee benefits

Annual leave entitlements 534,415 394,489

Unconditional long service leave 250,053 282,509

784,468 676,998

Non-current employee benefits

Conditional long service leave entitlements 135,810 81,359

135,810 81,359

Total employee benefits 920,278 758,357

Current on-costs 116,033 100,117

Non-current on-costs 20,557 12,271

Total on costs 136,590 112,388

Total employee benefits and related on-costs 1,056,868 870,745


11 – Superannuation (employee contributions)

10 – Provisions (continued)

Employees of the Legal Services Commissioner are entitled to receive superannuation benefits and the Legal Services Commissioner contributes to both defined benefits and defined contribution plans. The defined benefits plan(s) provides benefits based on years of service and final average salary.

The Legal Services Commissioner does not recognise any defined benefit liability in respect of the plan(s) because the entity has not legal or constructive obligation to pay future benefits relating to its employees; its only obligation is to pay superannuation contributions as they fall due. The Department of Treasury and Finance recognises and discloses the State’s defined benefit liabilities in its financial report.

However, the superannuation contributions paid or payable for the reporting period are included as part of employee benefits in the comprehensive operating statement of the Legal Services Commissioner.

The name and details of the major employee superannuation funds and contributions made by the Legal Services Commissioner are as follows:

Contribution Outstanding

2010 2009 2010 2009

$ $ $ $

Defined benefit plans:

State Superannuation Fund — revised and new 8,447 8,438 1,443 1,267

Defined contribution plans:

Vic Super 211,070 210,053 20,743 17,610

Legal Super 64,363 43,175 6,709 4,595

MLC Masterkey 10,049 5,491 1,438 51

Care 25,588 17,561 2,360 1,332

Other Superannuation funds 134,669 73,590 18,768 19,420

Total Superannuation Contribution 454,186 358,308 51,461 44,275

(b) Movements in provisions 2010

$

Movements in each class of provision during the financial year, other than employee benefits are set out below:

Opening balance 112,388

Unwind of discount and effect of changes in the discount rate 914

Additional provisions recognised 23,288

Carrying amount at end of year 136,590


12 – Commitments for expenditure

Finance leasesThe Company leases Motor Vehicles with a carrying amount of $50,085 (2009 — $43,528) under finance leases expiring within 21 to 23 months. Under the terms of the leases, the Commissioner is not entitled to acquire the leased assets for a discount of the agreed fair value on expiry of the leases.

2010 2009

$ $

Finance Leases

Finance lease liabilities payable:

Not longer then one year 17,412 25,531

Longer then one year and not longer then five years 37,199 20,037

Minimum future lease payments 54,611 45,568

Less future finance charges (4,526) (2,310)

Present value of minimum lease payments 50,085 43,258

Included in the financial statements as:

Current borrowings lease liabilities (note 9) 14,535 23,680

Non-current borrowings lease liabilities (note 9) 35,549 19,578

50,084 43,258

13 – Contingent assets and contingent liabilitiesThere were no contingent assets or contingent liabilities at balance date (2009: NIl).

14 – Financial instruments

14.1 Financial risk management objectives and policiesThe Commissioner’s principal financial instruments comprise of:

• cash assets;

• receivables (excluding statutory receivables)

• payables (excluding statutory payables); and

• finance lease payables

Details of the significant accounting policies and methods adopted, including the criteria for recognition, the basis of measurement, and the basis on which income and expenses are recognised, with respect to each class of financial asset, financial liability and equity instrument above are disclosed in Note 1 to the financial statements.

The main purpose in holding financial instruments is to prudentially manage the Legal Services Commissioner’s financial risks within the Commissioner’s policy parameters.


14 – Financial instruments (continued)

14.2 Categorisation of financial assets and financial liabilitiesThe carrying amounts of the Commissioner’s contractual financial assets and financial liabilities are disclosed below.

CATEGORY CARRYING AMOUNT

2010 2009

$ $

Financial Assets

Cash and deposits Cash 1,439,876 1,036,952

Receivables Receivables (At fair value) 364,117 1,124,555

Total financial assets 1,803,993 2,161,507

Financial Liabilities

Payables Financial liabilities measured at fair value 787,645 913,379

Interest bearing liabilities Financial liabilities measured at fair value 50,084 43,258

Total financial liabilities 837,729 956,637

14.3 Credit riskCredit risk arises from the contractual financial assets of the Legal Services Commissioner, which comprise cash and cash deposits and receivables. The Legal Services Commissioner’s exposure to credit risk arises from the potential default of counter party on their contractual obligations resulting in financial loss to the Legal Services Commissioner. Credit risk is measured at fair value and is monitored on a regular basis.

The Commissioner has assessed the credit risk associated with the cash at bank as minimal, because the amounts are held by Westpac Banking Corporation, which is governed by the government guarantee. Also, management has assessed the risk associated with the receivables as minimal because they are made up of income from the service agreement in place with the Legal Services Board.

In addition the Legal Services Commissioner does not engage in hedging for its contractual financial assets and mainly obtains contractual financial assets that are fixed interest except for cash assets, which are mainly cash at bank. Provisions for impairment for financial contractual assets is calculated based on past experience and current and expected changes in financial institution’s credit ratings.

FINANCIAL ASSETS AND OTHER CREDIT EXPOSURES MAXIMUM CREDIT RISK

2010 2009

$ $

Cash and deposits 1,439,876 1,035,952

Receivables 364,117 1,124,555

Total 1,803,993 2,160,507

The Legal Services Commissioner’s sensitivity to credit risk is set out in Table 14.4



14.4 Ageing analysis of contractual financial assets and interest rate exposure of financial assets

WE

IGH

TED

AVE

RA

GE

EFF

ECTI

VE

INTE

RE

ST

RAT

E %

CA

RR

YIN

G A

MO

UN

T INTEREST RATE EXPOSURE

NO

T PA

ST D

UE

A

ND

NO

T IM

PAIR

ED

PAST DUE BUT NOT IMPAIRED

IMPA

IRED

FI

NA

NC

IAL

ASS

ETS

FIXE

D

INTE

RE

ST R

ATE

VAR

IAB

LE

INTE

RE

ST

RAT

E

NO

N-I

NTE

RE

ST

BE

AR

ING

LESS

TH

AN

1

MO

NTH

1-3

MO

NTH

3 M

ON

THS

-

1 YE

AR

1-5

YEA

RS

$ $ $ $ $ $ $ $ $ $ $

2010

Receivables

Accrued income 361,450 – – 361,450 361,450 – – – – –

Trade receivables 2,667 – – 2,667 2,667 – – – – –

Investments and other contractual financial assets:

Cash and deposits 3.61% 1,439,877 – 1,439,877 – – – – – – –

Total 1,803,994 – 1,439,877 364,117 364,117 – – – – –

2009

Receivables

Accrued income 1,120,625 – – 1,120,625 1,120,625 – – – – –

Trade receivables 3,930 – – 3,930 3,930 – – – – –

Investments and other contractual financial assets:

Cash and deposits 3.53% 1,036,953 – 1,036,953 – – – – – – –

Total contractual financial assets 2,161,508 – 1,036,953 1,124,555 1,124,555 – – – – –

14.5 Liquidity riskLiquidity risk is the risk that the Legal Services Commissioner would be unable to meet its financial obligations as and when they fall due. The Legal Services Commissioner operates under the governments fair payment policy of settling financial obligations within 30 days and in the event of a dispute, making payments within 30 days from the date of resolution.

The Commissioner’s maximum exposure to liquidity risk is the carrying amounts of financial liabilities as disclosed on the face of the balance sheet. The Commissioner manages its liquidity risk via:

• maintaining an adequate level of uncommitted funds that can be drawn at short notice to meet its short term obligations;

• holding investments and other contractual financial assets that are readily tradeable in the financial markets; and

• careful maturity planning of its financial obligations based on forecasts of future cash flows.

The Legal Services Commissioner’s exposure to liquidity risk is deemed insignificant based on prior period’s date and current assessment of risk. Cash for unexpected events is generally sourced from liquidation of available for sale financial investments.

The maximum exposure to liquidity risk is the carrying amounts of financial liabilities as disclosed on the face of the Balance Sheet. The following table discloses the contractual maturity analysis for the Commissioner’s contractual financial liabilities.



14.6 Ageing analysis of contractual financial liabilities and interest rate exposure

WEI

GH

TED

AV

. IN

T R

ATE

% CA

RR

YIN

G A

MO

UN

T

INTEREST RATE EXPOSURE

NO

MIN

AL

AM

OU

NT

MATURITY DATES

NO

N IN

TER

EST

B

EA

RIN

G

VAR

IAB

LE

INTE

RE

ST

RAT

E

LESS

TH

AN

1

MO

NTH

1-3

MO

NTH

3 M

ON

THS

-

1 YE

AR

1-5

YEA

RS

$ $ $ $ $ $ $ $

2010

Contractual financial liabilities

Interest bearing liabilities 6.62 50,054 – 50,054 50,054 – – 14,535 23,680

Payables 893,698 893,698 – 893,698 379,140 514,558 – –

943,752 893,698 50,054 943,752 379,140 514,558 14,535 23,680

2009

Contractual financial liabilities

Interest bearing liabilities 6.91 43,258 – 43,258 43,258 – – 23,680 19,578

Payables 1,129,678 1,129,678 – 1,129,678 593,937 535,741 – –

1,172,936 1,129,678 43,258 1,172,936 593,937 535,741 23,680 19,578

The above amounts disclosed are the contractual undiscounted cash flows of each class of financial liabilities.

14.7 Market riskThe Legal Services Commissioner has insignificant exposure to market risk, currency risk and other price risk. Objectives, policies and processes used to manage each of these risks are disclosed below:

Foreign currency riskThe Legal Services Commissioner is not exposed to foreign currency risk as it does not hold any foreign financial instrument.

Interest rate riskFair value interest rate risk is the risk that the fair value of a financial instrument will fluctuate because of changes in market interest rates. The Commissioner does not hold any interest bearing instruments that are measured at fair value, therefore has nil exposure to fair value interest rate risk.

The Commissioner has minimal exposure to cash flow interest rate risks through its cash and deposits that are at floating rates.

The Commissioner manages this risk by mainly undertaking fixed rate on non-interest bearing financial instruments with relatively even liquidity profiles, with only insignificant amounts of financial instruments at floating rate. Management has concluded for cash at bank, as financial assets they can be left at floating rate without necessarily exposing the Commissioner to significant bad risk, management monitors movement in interest rates on a daily basis.

Equity price riskThe Commissioner does not believe it has any exposure to equity price risk.


15 – Reserves and retained earnings

2010 2009

$ $

Balance at beginning of financial year 977,644 932,622

Net result from transactions (net operating balance) (17,138) 45,022

Gain (loss) on disposal of asset 6,751 –

Gains from revaluation of the LSL provision (12,159) –

Balance at end of financial year 955,098 977,644

16 – Ex-gratia payments

2010 2009

$ $

The Legal Services Commissioner has made the following ex gratia payments

Payments made under section 4.2.16 of the Legal Profession Act 2004 – 1,050

17 – Responsible personsIn accordance with the Ministerial Directions issued by the Minister for Finance under the Financial Management Act 1994, the following disclosures are made regarding responsible persons for the reporting period.

(a) NamesThe persons who held the positions of Ministers and Accountable Officer in the Legal Services Commissioner are as follows:

Minister

Attorney General The Hon. Rob Hulls 01 July 2009 to 30 June 2010

Acting Attorney General The Hon. Tony Robinson 11 days

Acting Attorney General The Hon. Bob Cameron 5 days

Acting Attorney General The Hon. John Lenders 16 days

Accountable Officer Ms Victoria Marles 1 July 2009 to 23 October 2009

Acting Accountable Officer Mr Michael McGarvie 56 days

Accountable Officer Mr Michael McGarvie 21 December 2009 to 30 June 2010

RemunerationRemuneration received or receivable by the accountable officer in connection with the management of the Commissioner during the reporting period was in the range: $220,000 to $230,000.


18 – Remuneration of executivesThe number of executive officers, other then ministers and accountable officers, and their total remuneration during the reporting period are shown in the first two columns in the table below in their relevant income bands. The base remuneration of executive officers is shown in the third and fourth columns. Base remuneration is exclusive of bonus payments, long service leave payments, redundancy payments and retirement benefits.

TOTAL REMUNERATION BASE REMUNERATION

2010 2009 2010 2009

Income Band

$150,000 – $159,999 - - 1 1

$170,000 – $179,999 - 1 - 1

$180,000 – $189,999 - 1 - -

$190,000 – $199,999 1 - - -

$310,000 – $319,999 - - 1 -

$350,000 – $359,999 1 - - -

Total numbers 2 2 2 2

Total amount 537,028 357,427 465,538 329,377

19 – Related party transactions(a) Related party transactionsDuring the period the following related party transactions occurred:

2010 2009

$ $

During the period the following related party transactions occurred:

As set out in note 1 E there are recharges between the Legal Services Commissioner and Legal Services Board 10,086,106 9,068,287

Total related party transactions 10,086,106 9,068,287

The Legal Services Commissioner does share costs and services with the Legal Services Board. All transactions are at arms length. Shared costs are recharged on agreed rates.

20 – Remuneration of auditors

2010 2009

$ $

(a) Victorian Auditor-General’s Office

Audit and review of financial statements 13,000 11,800

Total remuneration for audit and other assurance services 13,000 11,800

21 – Subsequent eventsThere were no subsequent events to report.


22 – Glossary of terms

CommitmentsCommitments include those operating, capital and other outsourcing commitments arising from non-cancellable contractual or statutory sources.

Comprehensive resultTotal comprehensive result is the change in equity for the period other then changes arising from transactions with owners. It is the aggregate of net result and other non-economic changes in equity.

Employee benefits expensesEmployee benefits expenses include all costs related to employment including wages and salaries, leave entitlements, redundancy payments and superannuation contributions.

Financial assetA financial asset is any asset that is:

(a) cash;

(b) an equity instrument of another entity;

(c) a contractual right;

• to receive cash or another financial asset from another entity; or

• to exchange financial assets or financial liabilities with another entity under conditions that are potentially favourable to the entity; or

(d) a contract that will or may be settled in the entity’s own equity instruments and is:

• a non-derivative for which the entity is or may be obliged to receive a variable number of the entity’s own equity instruments; or

• a derivative that will or may be settled other then by the exchange of a fixed amount of cash or another financial asset for a fixed number of the entity’s own equity instruments.

Financial instrumentA financial instrument is any contract that gives rise to a financial asset of one entity and a financial liability or equity instrument of another entity.

Financial assets or liabilities that are not contractual are not financial instruments.

Financial liabilityA financial liability is any liability that is:

A contractual or statutory obligation;

• to deliver cash or another financial asset to another entity; or

• to exchange financial assets or financial liabilities with another entity under conditions that are potentially unfavourable to the entity.

Financial statementsDepending on the context of the sentence where the term ‘financial statements’ is used, it may include only the main financial statements (i.e. comprehensive operating statement, balance sheet, cash flow statements, and statement of changes in equity); or it may also be used to replace the old term ‘financial’ report user in the revised AASB 101 (Sept 2007), which means it may include the main financial statements and the notes.

Intangible assetsIntangible assets represent identifiable non-monetary assets without physical substance.

Interest incomeInterest income includes interest received on bank term deposits, interest from investments, and other interest received.

Net resultNet result is a measure of financial performance of the operations for the period. It is the net result of items of revenue , gains and expenses (including losses) recognised for the period, excluding those that are classified as ‘other non-owner changes in equity’.

Net result from transactions/ net operating balanceA net result from transactions or net operating balance is a key fiscal aggregate and is revenue

from transactions minus expenses from transactions. It is a summary measure of the ongoing sustainability of operations. It excludes gains or losses resulting from changes in price levels and other changes in the volume of assets. It is the component of the change in net worth that is due to transactions and can be attributed directly to government policies.

Non-financial assetsNon-financial assets are all assets that are not ‘financial assets’.

Other economic flowsOther economic flows are changes in the volume or value of an asset or liability that do not result from transactions. It includes gains and losses from disposals, revaluations and impairments of non-current physical and intangible assets, fair value changes in financial instruments and depletion of natural assets (non-produced) from their use or removal. In simple terms, other economic flows are changes arising from market re measurements.

PayablesIncludes short and long term trade debt and accounts payable, grants and interest payable.

ReceivablesIncludes short and long term credit and accounts receivable, grants, taxes and interest receivable.

TransactionsTransactions are those economic flows that are considered to arise as a result of policy decisions, usually an interaction between two entities by mutual agreement. They also include flows within an entity such as depreciation where the owner is simultaneously acting as the owner of the depreciating asset and as the consumer of the service provided by the asset. Taxation is regarded as mutually agreed interactions between the government and taxpayers. Transactions can be in kind (e.g. assets provided/ given free of charge or for nominal consideration) or where the final consideration is cash. In simple terms, transactions arise from the policy decisions of the government.


VAGO Victorlah Auditor-General's Office

INDEPENDENT AUDITOR'S REPORT

To the Legal Services Commissioner

The Financial Report The accompanying financial l'eport for the year ended 30 June 2010 of the· Legal Services Commissioner which comprises the comprehensive operating statement. balance shee~ statement of changes in equity. casl1 flow ·statement. a summary of significant accounting policies and other explanatory notes to and forming part of the financial mport. and the accountable officer's and chief finance and accounting officer's declaration has been audited.

The Commissioner's Responsibility for the Financial Report The Legal Services Commiss:ioner is responsible for the preparation and lair presentation of the financial report 'in accordance with Australian Accounting Standards (including the Australian Accounting Interpretations) and the fihancial reporti'ng requirements of the Financial Management Act 1994. This responsibility includes:

• establishing and maintaining internal controls relevant to the preparation and fair presentation of the financial report that fs free from material misstatement, whether due to fraud or error

• selecting and applying appropriate accounting policies

• making accounting estimalles that are reasonable in the circumstances.

Auditor's Responsibility As required by the Audit Act '1994, my responsibility i.s to express an opinion on the financial report based on the. audit, Which has been conducted in accordance with Australian Auditing Standards. These Standards require compliano~ with relevant ethical requirements relating to audit engagements and that the auait be planned and pe11orrned to obtain reasonable assurance Whether the financial report is free from material misstatement.

An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial report. The audit procedures seletted depend on judgement, including the assessment of the risks of material misstatement of the financial report, whether due to fraud or error. In making those risk assessments, considerafion is given to the Internal control relevant to the entity's preparation and fait presentation of the financial report in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity's Internal control An audit also includes evaluating the appropriateness of the accounting policies used, and the reasonableness of acco1unting estimates made by the leg;~l Services Commissioner, as well as evaluating the overall presentation of the financial report.

1 believe that the audit evidence 1 have obtained is sufficient and appropriate to provide a basis for my audit opinion.

Level 24. 35 Colins Slree1, Melboome Vie. 3000 Telephone 51 3 86017000 Facsimile 61 3 8601 7010 Emall commen1S~aud~ Yfc.gov.au Wl!l>slla www.audilvic.g011.au

Audrling in the Public Interest


VAGO Victorian Auditor-General's Office

Independent Auditor's Report (continued)

Matters Relating to the Electronic Presentation of the Audited Financial Report

This auditor's report relates to the financial report published in both the annual report and on the website of the Legal Services Commissioner for the year ended 30 June 2010. The Legal Services Commissioner is responsible for the integrity of the web site. I have not been engaged to report on the integrity of the web site. The auditor's repo:rt refers only to the statements named above. An opinion is not provided on any other information which may have been hypertinked to or from these statements. If users of this report ;~re concerned with the inherent risks arising from electronic data communications. they are advised to refer to the hard copy of the audited financial report to confirm the information included in the audned financial report presented on the Legal Services Commissioner web site.

Independence

The Auditor-General's independence is established by the Constitution Act 1975. The Auditor-General is not subject to direction by any person about the way in which his powers and responsibilities are to be exercised. In conducting the audit. the Auditor-General, his staff and delegates complied with all applicable independence requirements of the Australian accounting profession.

Auditor's Opinion

In my opinion, the financial report presents fairly, in all material respects, the financial position of the Legal .Services Commissioner as at 30 June 2010 and its financial performance and cash flows for the year then ended in accordance. with applicable Australian Accounting .Standards (including the Australian Accounting Interpretations), and the financial reporting requirements of the Financial Management Act 1994.

MELBOURNE 8 September 2010

level 24, 35 Collins Sttee~ Melbourne VIC. 3000

\l ~ \) -ll J • tcut'-( 11

...lJ {{D D R Pearson ·! r Auditor-General

Telel)hone 61 3 8601 7000 F•csimile 61 3 8801 7010 Elnail comments~audilvfc.gov,au Websltnmw.oudlt.vic.gov.au

Auditing In IM Public lnteresl.

76

ChapterComplaints dataThis chapter provides information about complaints handled by the Legal Services Commissioner in the period 1 July 2009 to 30 June 2010. It covers complaints handled under the Legal Profession Act 2004 as well as outstanding complaints and disputes inherited under the Legal Practice Act 1996 (the old Act).

The data is presented in two parts:• Part 1 covers complaints handled in 2009–10 under the

Legal Profession Act 2004.

• Part 2 covers complaints and disputes outstanding under the old Act.

Reason for complaints data in two partsThe complaints data is in two separate parts because the definition of complaint under the Legal Profession Act 2004 includes a complaint about the conduct of a lawyer as well as a dispute whereas under the old Act a complaint was confined to disciplinary conduct. Accordingly, it is not possible to merge data from the old Act files with data under the current regime.

How to read the complaints sectionAs the complaints data is presented in two parts, it is necessary to consider the data in both parts to best understand the workload and outcomes of the Legal Services Commissioner. For example, the total number of complaints finalised by the Legal Services Commissioner during 2009–10 can be obtained by adding the figures in Figure 36 (Part 1) and Figure 47 (Part 2). And so, the total number of finalisations is 1,796 “new Act” plus 12 “old Act” matters, which equals 1,808.

05

1.1 Enquiries received during 2009–10

Figure 28: Number of enquiries received in 2009–10 including the outcomes

COMPLAINT FORM SENT

INFORMATION PROVIDED –

NO FURTHER ACTION TAKEN

REFERRAL TO OTHER BODY

NO JURISDICTION

TOTAL 2009–10

TOTAL 2008–09

TOTAL 2007–08

2,590 1,666 899 47 5,202 5,456 4,290

Part 1 Complaints under the Legal Profession Act 2004

Chapter Five Complaint data 77

1.4 Investigations commencedFigure 31 shows the number of investigations commenced by the Legal Services Commissioner and those referred to the Prescribed Investigatory Bodies (PIBs) in 2009–10.

1.2 New complaints received by complaint typeFigure 29 shows the number of new complaints received by the Legal Services Commissioner by complaint type.

2008-09

Total = 2,057

2009-10

Total = 2,211

Civil only

Disciplinary only

Mixed

All Civil

All Disciplinary

0 500 1,000 1,500 2,000

2007-08

Total = 2,033


5,811 (35%)

568 (25%)539 (26%)

449 (22%)

1,094 (50%)1,196 (58%)1,232 (61%)

549 (25%)322 (16%)352 (17%)

1,117 (51%)861 (42%)

801 (39%)

1,643 (74%)1,518 (74%)

1,584 (78%)

NO. OF COMPLAINTS

1.3 New complaints received by type of lawyerFigure 30 shows the number of new complaints received by the Legal Services Commissioner in 2009–10 by lawyer type.

Figure 30 : New complaints received by type of lawyer

CIVIL DISCIPLINARY MIXED TOTAL TOTAL TOTAL

2009–10 2008–09 2007–08Solicitors 554 1,014 530 2,098 1,946 1,969

Barristers 14 80 19 113 111 64

Total 568 1,094 549 2,211 2,057 2,033

Figure 31: Investigations commenced

2008-09

Total = 652

2009-10

Total = 749

Investigations by LSC

Investigations referred to PIBs

0 100 200 300 400 500 600

2007-08

Total = 830


5,811 (35%)

581 (77%)528 (81%)

567 (68%)

168 (23%)124 (19%)

263 (32%)

NO. OF INVESTIGATIONS

Figure 29: Number of new complaints received by complaint type.


Figure 32: Investigations referred to PIBs

2008-09

Total = 124

2009-10

Total = 141

Investigations referred to LIV

Investigations referred to BAR

0 50 100 150 200 250 300

2007-08

Total = 263

126* 105

250

15** 19

13

NO. OF INVESTIGATIONS REFERRED TO PIBs

1.5 Investigations referred to PIBs Figure 32 shows the number of investigations referred to the PIBs during 2009–10 and in previous years.

*The Law Institute of Victoria was referred an additional 25 investigations relating to complaints received in 2008–09.

**The BAR was referred an additional 2 investigations relating to complaints received in 2008–09.

1.6 Own motion investigations commencedFigure 33 shows the number of own motion investigations commenced by the Legal Services Commissioner in 2009–10 and in previous years.

Figure 33: Own motion investigations commenced

BASIS FOR OWN MOTION INVESTIGATIONPRELIMINARY

INVESTIGATIONOWN MOTION

INVESTIGATION TOTAL

2009–10 2008–09 2009–10 2008–09 2009–10 2008–09Trust account report 5 1 4 6 9 7

Referral from other agency (including a court) 3 2 22 3 25 5

LSC complaint file 2 3 9 3 11 6

Media 0 0 2 2 2 2

Other 0 0 0 0 0 0

Total 10 6 37 14 47 20


1.7 What were the new complaints about?Figure 34 shows the allegations raised in complaints to the Legal Services Commissioner. A complaint may contain a number of allegations. This means there are more allegations than complaints.

Figure 34: Allegations raised in complaints to the Legal Services Commissioner

NATURE OF ALLEGATIONTOTAL

2009–10TOTAL

2008–09TOTAL

2007–08

Costs/Bills 1,030 (30.9%) 938 (31.9%) 845 (29.1%)

Negligence — including bad case handling 623 (18.7%) 444 (15.1%) 465 (16%)

Communication with client — including failure to return calls, give progress reports 171 (5.1%) 192 (6.5%) 250 (8.6%)Trust money — including failure to account, mismanagement of funds 169 (5.1%) 134 (4.5%) 171 (5.8%)

Dishonest/ Misled 152 (4.6%) 137 (4.6%) 138 (4.7%)

Instructions — including failure to comply 145 (4.3%) 107 (3.6%) 132 (4.5%)

Breach of Act, rules, court order or undertaking 139 (4.2%) 94 (3.2%) 101 (3.4%)

Conflict of interest 125 (3.7%) 87 (2.9%) 94 (3.2%)

Documents — including retention and lost 134 (3.9%) 90 (3%) 139 (4.7%)

Costs communication — including failure to comply with s3.4.9 of the Act 88 (2.6%) 97 (3.3%) 63 (2.1%)

Abusive/Rude 88 (2.6%) 89 (3%) 72 (2.4%)

Delays 76 (2.3%) 109 (3.7%) 116 (3.9%)

Duress/ Pressure/ Intimidation 73 (2.2%) 62 (2.1%) 92 (3.1%)

Gross overcharging 26 (0.8%) No data No data

Debts — including practitioner’s failure to pay 26 (0.8%) 25 (.85%) 18 (.6%)

Communication with other party 21 (0.6%) 20 (.68%) 13 (.4%)

Confidentiality breach 20 (0.6%) 14 (.47%) 23 (.8%)

Court system 9 (0.3%) 4 (.13%) 3 (.1%)

Advertising 3 (0.08%) 7 (.23%) 0

Sexual impropriety 1 (0.03%) 2 (.06%) 5 (.1%)

Other disciplinary issues 162 (4.8%) 285 (9.7%) 163 (5.6%)


1.8 What areas of law featured in the new complaints?Figure 35 shows the areas of law that featured in new complaints. As with previous years, the areas of law that affect individuals in their private capacity continued to attract some of the highest number of complaints: namely, family law and probate and estate. Commercial law also remains a high volume area.

Figure 35: Areas of law that featured in new complaints

AREA OF LAWTOTAL

2009–10TOTAL

2008–09TOTAL

2007–08

Family/Defacto 512 (23.2%) 464 (23.0%) 480 (23.6%)

Commercial 217 (9.8%) 188 (9.1%) 166 (8.1%)

Probate & Estate 214 (9.7%) 232 (11.0%) 242 (12.0%)

Conveyancing 197 (8.9%) 184 (9.0%) 272 (13.3%)

Criminal 115 (5.2%) 145 (7.0%) 122 (6.0%)

Workers Compensation 87 (3.9%) 73 (4.0%) 95 (4.6%)

Debt Collection 85 (3.8%) 95 (4.6%) 102 (5.0%)

Personal Injury – Other 70 (3.2%) 44 (2.1%) 40 (1.9%)

Wills 59 (2.7%) 44 (2.1%) 42 (2.0%)

Leasing 45 (2.0%) 46 (2.2%) 33 (1.6%)

Building – Residential 41 (1.9%) 34 (1.6%) 29 (1.4%)

Industrial Relations 39 (1.8%) 37 (1.7%) 33 (1.6%)

Mortgages 36 (1.6%) 46 (2.2%) 38 (1.8%)

Administrative 33 (1.5%) 45 (2.1%) 29 (1.4%)

Breach of Legal Practice Act/Regs 26 (1.2%) No data No data

Company 22 (1.0%) 12 (0.6%) 26 (1.2%)

Crimes Compensation 22 (1.0%) 5 (0.2%) 9 (0.4%)

Motor Vehicle Repairs/Claims 18 (0.8%) 29 (1.4%) 25 (1.2%)

Immigration 17 (0.8%) 11 (0.5%) 12 (0.6%)

Personal Injury – Motor Vehicle Accident 14 (0.6%) 30 (1.5%) 25 (1.2%)

Planning 12 (0.5%) 13 (0.6%) 16 (0.8%)

Civil Liberties 11 (0.5%) 11 (0.5%) 6 (0.3%)

Equal Opportunity 11 (0.5%) 10 (0.5%) 4 (0.2%)

Building – Commercial 9 (0.4%) 9 (0.4%) 11 (0.5%)

Taxation 9 (0.4%) 6 (0.3%) 6 (0.3%)

Banking 7 (0.3%) 4 (0.2%) 3 (0.1%)

Intellectual Property 7 (0.3%) 11 (0.5%) 15 (0.7%)

Insolvency 6 (0.3%) 10 (0.5%) 9 (0.4%)

Personal Injury – Industrial 6 (0.3%) 5 (0.2%) 5 (0.2%)

Defamation 5 (0.2%) 11 (0.5%) 2 (0.09%)

Trade Practices 5 (0.2%) 3 (0.1%) 2 (0.09%)

Environmental 0 (0.0%) 5 (0.2%) 0 (0.0%)

Other / Unsure 254 (11.5%) 195 (10.0%) 134 (7.0%)

Total 2,211 2,057 2,033


1.9 Complaints finalisedFigure 36 shows the number of complaints finalised by the Legal Services Commissioner in 2009–10 by complaint type.

1.10 Time taken to finalise complaintsFigure 37 shows the time taken to finalise complaints in 2009–10 compared with the time taken to close complaints in previous years.

2008-09

Total = 1,893

2009-10

Total = 1,796

Civil

Disciplinary


0 200 400 600 800 1,000 1,200

2007-08

Total = 1,893


5,811 (35%)

452 (25%)

534 (28%)

483 (26%)

923 (51%)

1,101 (58%)

1,153 (61%)

421 (24%)

258 (14%)

257 (13%)

NO. OF COMPLAINTS

Figure 36: Complaints finalised

Figure 37: Time taken to finalise complaints


Civil Dispute

2009–10 119 (26%) 76 (17%) 51 (11%) 57 (12%) 152 (34%) 455

2008–09 117 (21%) 102 (19%) 81 (15%) 60 (11%) 174 (35%) 534

2007–08 124 (25%) 76 (16%) 59 (12%) 71 (15%) 153 (31%) 483

Disciplinary

2009–10 155 (16%) 112 (12%) 97 (10%) 81 (9%) 478 (51%) 923

2008–09 242 (22%) 140 (13%) 106 (10%) 88 (8%) 525 (48%) 1,101

2007–08 347 (30%) 145 (13%) 121 (10%) 110 (10%) 430 (37%) 1,153


2009–10 37 (9%) 26 (6%) 37 (9%) 47 (11%) 271 (66%) 418

2008–09 34 (13%) 34 (13%) 33 (13%) 20 (7%) 137 (53%) 258

2007–08 27 (10%) 24 (9%) 7 (2%) 22 (9%) 177 (69%) 257

Total

2009–10 311 (17%) 214 (12%) 185 (10%) 185 (10%) 901 (50%) 1,796

2008–09 393 (21%) 276 (15%) 220 (11%) 168 (9%) 836 (44%) 1,893

2007–08 498 (26%) 245 (13%) 187 (10%) 203 (11%) 760 (40%) 1,893


1.11 Outcomes of finalised complaintsFigures 38, 39, 40 and 41 show the outcomes of the finalised complaints.

Figure 38 shows the outcomes of civil complaints finalised by the Legal Services Commissioner in 2009–10 and previous years.

Figure 38: Outcomes of civil complaints

2008-09

Total = 534

2009-10

Total = 455

LSC settled the civil dispute between lawyer & client (includes where client satisfied with lawyer’s response and withdrew complaint)

LSC was unable to settle the civil dispute & parties were advised of

their right to apply to VCAT

Complainant failed to lodge unpaid disputed costs

Complaint made out of time

Complaint involved costs dispute which exceeded $25,000

Lawyer had already issued debt collection proceedings

Complaint not one that the LSC has power to deal with (eg. matter has already been dealt

with/should be dealt with by a court)

Complaint lacked legal substance (etc) (eg. dispute already settled)

Complainant failed to provide further information when requested

Complaint made before (or subject of another complaint)

Complaint about Family Court costs (and referred to Family Court)

0 50 100 150 200 250

2007-08

Total = 483

218 (48%)234 (44%)

216 (44.7%)

60 (13%)87 (16%)89 (18.4%)

53 (11%)49 (9.1%)

39 (8%)

27 (6%)16 (3%)

30 (6.2%)

27 (6%)13 (2.4%)10 (2%)

NO. OF COMPLAINTS

1 (0.2%)24 (5%)

13 (2.7%)

9 (2%)17 (3%)

12 (2.4%)

5 (1%)11 (2%)

6 (1.2%)

18 (4%)46 (8.6%)

37 (7.6%)

11 (2%)16 (3%)

13 (2.7%)

26 (6%)21 (4%)18 (3.7%)


Figure 39 shows the outcomes of disciplinary complaints finalised by the Legal Services Commissioner in 2009–10 and previous years.

Figure 39: Outcomes of Disciplinary Complaints

2008-09

Total = 1,101

2009-10

Total = 923

LSC formed view that VCAT unlikely to find practitioner guilty of a disciplinary breach

Complainant satisfied with practitioner’s explanation and withdrew complaint

Complaint lacked legal substance (eg. alleged conduct was not inappropriate)

Complaint not one that the LSC has power to deal with (eg. involves question of law and

better dealt with by a court)


LSC formed the view that complaint required no further investigation (eg. practitioner not

obliged to accept instructions from complainant)

LSC formed view that VCAT likely to find lawyer guilty of a disciplinary breach

Complaint about practitioner/client relationship and duties but made by third

party (eg. not the client)


Practitioner ill health or not located

Complaint made out of time

Practitioner deceased

Complaint did not contain enough information (eg. did not include complainant’s details)

0 100 200 300 400 500

2007-08

Total = 1,153

NO. OF COMPLAINTS

64 (6.9%)77 (7%)

49 (4.2%)

254 (28%)345 (31.3%)

421 (36.5%)

211 (23%)161 (14.6%)

121 (11%)

5 (0.5%)16 (1.4%)28 (3%)

18 (2%)23 (2%)

38 (3.3%)

01 (0.09%)1 (.08%)

75 (8.1%)108 (9.8%)

75 (6.5%)

104 (11.3%)170 (15.4%)

153 (13.2%)

26 (2.8%)30 (2.7%)

129 (11.1%)

67 (7.3%)43 (4%)

33 (3%)

89 (9.6%)115 (10.4%)

95 (8.2%)

2 (0.2%)1 (0.09%)1 (.08%)

8 (0.9%)11 (1%)9 (.7%)


Most mixed complaints have two outcomes — a disciplinary outcome and a civil outcome. However, some mixed complaints have only one outcome because, for example, the practitioner could not be located.

In the above table the items identified as “other” are mixed complaints where the complainant has failed to lodge the outstanding costs in dispute and therefore that aspect of the complaint has been dismissed.

Figure 41: Outcomes of Mixed Complaints — One Outcome

Figure 40: Outcomes of Mixed Complaints – Two Outcomes

DISCIPLINARY OUTCOME CIVIL OUTCOME

TOTALDISPUTE

RESOLVED

DISPUTE NOT

RESOLVED WITHDRAWNSUMMARY

DISMISSAL OTHERLSC formed view that VCAT likely to find practitioner guilty of a disciplinary breach 5 6 0 2 0 13LSC formed view that VCAT unlikely to find practitioner guilty of a disciplinary breach 9 59 5 48 6 127Withdrawn 91 11 44 12 3 161

Summary Dismissal 2 8 0 40 5 55

Other 1 1 0 0 2 4

Total 108 85 49 102 16 360

Legal proceedings already on foot

Complaint not one that the LSC has power to deal with


Complaint made out of time (exceeded 6 years)


Practitioner ill health or not located

Complaint did not contain enough information

Practitioner deceased

0 5 10 15 20 25 30

2008-09

Total = 74

2009-10

Total = 58

2007-08

Total = 59

20 (34%)

NO. OF COMPLAINTS

00

2 (4%)

00

1 (1%)

1 (1%)1 (1%)

6 (10%)

2 (4%)5 (7%)

3 (5%)

16 (29%)30 (41%)

4 (7%)2 (3%)

8 (14%)

18 (32%)22 (30%)

13 (22%)

17 (26%)14 (19%)

6 (10%)


1.12 LSC alternative disciplinary actionsFigure 42 shows the number of alternative disciplinary actions taken by the Legal Services Commissioner in 2009–10. (See page 16 for an explanation of alternative disciplinary actions).

1.13 Disciplinary applications to VCATFigure 43 shows the number of disciplinary applications made to VCAT in 2009–10. The Legal Services Commissioner made 22 new applications to VCAT. This number represents the 21 applications made under the Legal Profession Act 2004 plus the one application made under the Legal Practice Act 1996, see Figure 49.

2008-09

Total = 81

2009-10

Total = 68

LSC reprimanded practitioner

Practitioner found generally competent

& diligent & so no further action

LSC cautioned practitioner

LSC asked practitioner to pay compensation

0 5 10 15 20 25 30 35 40

2007-08

Total = 56

30

37

27

2

3

4

NO. OF ALTERNATIVE DISCIPLINARY ACTIONS

9

13

5

27

28

20

Figure 42: Alternative Disciplinary Actions

Figure 43: Disciplinary applications made to VCAT

DISCIPLINARY APPLICATIONS UNDER LEGAL PROFESSION ACT 2004

HEARD BY VCAT DURING 2009–10

FILED AND YET TO BE HEARD AND/OR

AWAITING ORDERS BY VCAT AS AT 30 JUNE 10 TOTAL

Disciplinary applications made in 2009–10 14 8 22

Disciplinary applications made in previous years 29 0 29

TOTAL 43 8 51


1.15 Disciplinary applications heard and determined in the period 1/7/09 to 30/6/10

Figure 45: Disciplinary applications heard and determined in 2009-10

NO.VCAT REFERENCE

DATE CHARGE REFERRED

HEARING DATE(S)

NAME OF LEGAL PRACTITIONER TYPE OF CHARGES

FINDING OF VCAT

DATE AND ORDERS MADE

1 J39/2009 10/03/2009 4/11/2009;5/11/2009

SHULSINGER, Zvi (aka SINGER, Harry)

Misconduct at common law within s4.4.3(1) — Legal Profession Act 2004 — failure to take sufficient care to ascertain the accuracy of the content of an affidavit (x 2), Unsatisfactory professional conduct — failure to take sufficient care to ensure information and instructions conveyed were accurate and complete and not liable to mislead

Professional misconduct (x1) and Unsatisfactory professional conduct (x2)

31/5/2010 — matter determined; principal registrar to appoint a date and time for resumption of hearing to hear submissions as to any further orders to be made

2 J44/2009 13/03/2009 16/04/2009; 29/05/2009; 7/07/2009

SHEEHAN, Marshall

Professional misconduct:contravention of s4.4.11(1)(a) and (b) failure to comply with a request to provide a full written explanation of conduct and documents regarding a disciplinary complaint

Professional misconduct (x4) in relation to this application and J45 & J46/2009

24/07/2009 — fined $3000; pay LSC costs fixed at $7093.80

3 J45/2009 13/03/2009 16/04/2009; 29/05/2009; 7/07/2009

SHEEHAN, Marshall

Professional misconduct:contravention of s4.4.11(1)(a) failure to comply with a request to provide a full written explanation of conduct regarding a disciplinary complaint

Professional misconduct see J44/2009

24/07/2009

1.14 Complaints outstandingFigure 44 shows the number of complaints outstanding as at 30 June 2010 by complaint type.

Figure 44: Number of complaints outstanding


Civil Dispute

2009–10 69 (28%) 64 (26%) 31 (13%) 31 (13%) 46 (19%) 241

2008–09 28 (27%) 15 (15%) 26 (25%) 13 (13%) 21 (20%) 103

2007–08 34 (37%) 19 (20%) 12 (13%) 9 (10%) 18 (20%) 92

Disciplinary

2009–10 73 (8%) 69 (8%) 64 (7%) 59 (7%) 628 (70%) 893

2008–09 69 (10%) 73 (10%) 67 (10%) 51 (8%) 420 (62%) 680

2007–08 66 (13%) 54 (11%) 44 (9%) 37 (7%) 294 (60%) 495


2009–10 14 (4%) 5 (1%) 13 (4%) 20 (5%) 329 (86%) 381

2008–09 35 (14%) 28 (11%) 28 (11%) 26 (10%) 138 (54%) 255

2007–08 52 (20%) 31 (12%) 39 (15%) 21 (8%) 114 (44%) 257

Total

2009–10 156 (10%) 138 (9%) 108 (7%) 110 (7%) 1,003 (66%) 1,515

2008–09 132 (13%) 116 (11%) 121 (11%) 90 (9%) 579 (56%) 1,038

2007–08 152 (18%) 104 (12%) 95 (11%) 67 (8%) 426 (50%) 844


NO.VCAT REFERENCE


HEARING DATE(S)


FINDING OF VCAT


4 J46/2009 13/03/2009 16/04/2009; 29/05/2009; 7/07/2009

SHEEHAN, Marshall

Professional misconduct: contravention of s4.4.11(1)(b) failure to comply with a request to provide further information and documents regarding a disciplinary complaint; contravention of s4.4.11(1) failure to comply with a request to provide a statutory declaration verifying explanation of conduct regarding a disciplinary complaint


24/07/2009

5 J49/2009 23/03/2009 1/07/2009; 29/07/2009

RUSHFORD, Robert

Professional misconduct: contravention of s4.4.11(1)(a) failure to comply with a request to provide a full written explanation of conduct; s4.4.11(1)(b) failure to comply with a request to provide documents re disciplinary complaint

Professional misconduct (x3) in relation to this application & J64/2009 (Note: orders made also include J52, J53 & J59/2009 — see Part B)

30/07/2009 —respond by statutory declaration to LSCs request for a full written explanation of conduct; provide requested relevant documents and information; fined $2500; may not apply for a practising certificate until 30/7/2011; pay LSC costs fixed at $11150.36

6 J50/2009 25/03/2009 27/05/2009; 1/07/2009, 16/09/2009

PIVA, Romano Anthony

Misconduct at common law: misleading the Court — knowingly withholding a document when giving discovery in the Supreme Court & for own personal benefit misled a person practitioner had entered into a commercial transaction with, breaching oath and duty to court by knowingly giving false evidence in court

Misconduct at common law

22/07/2009, 25/09/2009 — practising certificate is cancelled; local practising certificate not to be granted before 25/09/2011; pay LSC costs as agreed

7 J65/2009 1/04/2009 13/05/2009; 24/06/2009; 12/08/2009; 1/09/2009

BLAZEVIC, Maria

Professional misconduct: contravention of s4.4.11(1)(a) and (b) failure to comply with a request for a full written explanation of conduct re complaint and failure to comply with request for documents and trust records re disciplinary complaint

Professional misconduct in relation to this application and J89/2009

3/09/2009 — fined $1000; conditions on practise for period of 6 months; pay LSC costs fixed at $10192.94

8 J64/2009 3/04/2009 11/05/2009; 1/07/2009; 29/07/2009

RUSHFORD, Robert

Professional misconduct: failure to comply with an Order of VCAT made on 14/2/2006

Professional misconduct — see J49/2009

30/07/2009

9 J75/2009 14/04/2009 7&8/7/2009; 26/10/2009

Legal practitioner

Professional misconduct: failing to hold trust money exclusively for the person on whose behalf it was received and disbursing trust money other than in accordance with direction by that person; withdrawing trust money held for payment of legal costs owing by a person other than the persons for whom the trust money was paid into account and without instructions that authorised the withdrawal

Charge 1 dismissed; Charge 2 dismissed

16/9/2009 — Leave granted to amend Charge 1 and Charge 2; Charge 2 is dismissed 15/1/2010 — Charge 1 is dismissed

10 J74/2009 21/04/2009 2/07/2009 D'ALESSANDRO, Clem

Professional misconduct: contravention of Rule 22.1 of the Professional Conduct & Practice Rules 2005 — failure to honour an undertaking given to another legal practitioner

Professional misconduct



NO.VCAT REFERENCE


HEARING DATE(S)


FINDING OF VCAT


11 J84/2009 4/05/2009 20/07/2009 TREBY, Peter Professional misconduct: contravention of s4.4.11(1)(a) failure to comply with a request to provide a full written explanation of conduct regarding a disciplinary complaint


20/07/2009 — provide full written explanation of conduct; pay LSC costs fixed at $1251.40

12 J89/2009 13/05/2009 24/06/2009; 12/08/2009; 1/09/2009

BLAZEVIC, Maria

Professional misconduct: contravention of s4.4.11(1)(b) failure to comply with a request to provide specific comments or explanation in relation to response by statutory declaration; failure to provide original file in relation to disciplinary complaint


3/09/2009

13 J78/2009 19/05/2009 27/07/2009 RAFTER, Michael

Professional misconduct: contravention s4.4.11(1)(b) failure to comply with a request to provide documents regarding a disciplinary complaint


27/07/2009 — fined $1000; pay LSC costs fixed at $1479

14 J105/2009 26/05/2009 2/07/2009 JOHNSON, Ray Professional misconduct: failure to comply with orders of the Tribunal made under the Act on 15/12/2008



15 J99/2009 27/05/2009 13/07/2009 JOHNSON, Peter W

Professional misconduct: contravention of s4.4.11(1)(a) failure to comply with a request to provide a full written explanation of conduct regarding a disciplinary complaint


13/07/2009 — provide full written explanation of conduct; fined $500; pay LSC costs fixed at $1446.40

16 J100/2009 3/06/2009 22/09/2009 GLEESON, Philip Thomas

Professional misconduct: contravention s4.4.11(1)(b) failure to comply with a request to provide documents regarding a disciplinary complaint


30/10/2009 — fined $1000; reprimanded; pay LSC costs fixed at $4343.60

17 J107/2009 5/06/2009 29/07/2009 MCCORMICK, Bryan

Professional misconduct: contravention s4.4.11(1)(b) failure to comply with a request to provide further information regarding a disciplinary complaint


30/07/2009 — pay LSC costs fixed at $1724.50

18 J108/2009 9/06/2009 16–18/09/2009; 8/12/2009

CASSIDY, Gerard Professional misconduct: (i) contravention of rule 1.1 Professional Conduct & Practice Rules 2003 failure to act in best interests of client; (ii) contravention of rule 8.2 PCPR 2005 failure to avoid a conflict of interest; (iii) contravention rule 8.3(a)(i) PCPR 2003 failure to ensure complainant consented to practitioner acting for another party; (iv) & (v) contravention of rule 8.5.1 PCPR 2003 failure to inform complainant of potential disadvantages of acting for both purchaser and vendor in connection with sale of land; (vi) contravention of rule 8.2 PCPR 2003 failure to immediately cease acting upon discovering a conflict of interest; (vii) contravention of rule 4 PCPR 2003 agreeing to act for another person whose interests were against those of client

Professional misconduct and Unsatisfactory professional conduct

29/09/2009; 8/12/2009 — reprimanded; fined $3000; pay LSC costs fixed at $15891.63


NO.VCAT REFERENCE


HEARING DATE(S)


FINDING OF VCAT


19 J109/2009 10/06/2009 29/09/2009 HAZLETT, James Edward

Professional misconduct: contravention s4.4.11(1)(b) failure to comply with a request to provide further information and documents regarding a disciplinary complaint

Professional misconduct (x9) — in relation to this application and J120 & J122/2009


20 J115/2009 15/06/2009 4/09/2009, 10/12/2009; 2/03/2010

KEOGH, William Professional misconduct and misconduct at common law: in submitting a research paper which contained deliberate plagiarism, for assessment in a subject in a post graduate degree; submitting an article which contained deliberate plagiarism for publication;alternatively engaging in conduct that justifies a finding that not a fit and proper person to engage in legal practice


3/2/2010, 2/03/2010 — practitioner not to be granted a practising certificate for the period 1 July 2010 to 31 December 2010; pay LSC costs to be calculated, in absence of agreement to be assessed

21 J113/2009 16/06/2009 15/09/2009 BLAZEVIC, Maria

Professional misconduct:contravention of s4.4.11(1)(a) failure to comply with a request to provide a full written explanation of conduct the subject of a disciplinary complaint


15/9/2009 — provide full explanation of conduct; fined $1000; pay LSC costs fixed at $2198.75

22 J117/2009 16/06/2009 1/12/2009 POLONI, Joseph Professional misconduct:contravention of s4.4.11(1)(a) failure to comply with a request to provide a full written explanation of conduct regarding a disciplinary complaint




Professional misconduct: contravention of rule 23.2 of Professional Conduct and Practice Rules 2005 failure to promptly deliver documents and deeds to client; contravention of rule 21 PCPR 2005 ignoring written communications from another legal practitioner; failure to maintain a reasonable standard of competence and diligence


5/11/2009


Professional misconduct: contravention of rule 23.2 Professional Conduct & Practice Rules 2005 failure to promptly deliver documents and information where required (x3); contravention of rule 21 PCPR 2005 ignoring written communications from another practitioner; failure to maintain a reasonable standard of competence and diligence.


5/11/2009

25 J123/2009 29/06/2009 28/09/2009 MORGAN, Stuart Professional misconduct: contravention of rule 1.2 Professional Conduct and Practice Rules 2005 failure to use best endeavours to finalise estate matters; contravention of rule 39.1 of PCPR 2005 failure to communicate effectively and promptly with clients




NO.VCAT REFERENCE


HEARING DATE(S)


FINDING OF VCAT


26 J121/2009 29/06/2009 9/09/2009; 4/11/2009

HORAK, Jan Professional misconduct: contravention s4.4.11(1)(b) failure to comply with a request for information and documents regarding a disciplinary complaint



27 J119/2009 29/06/2009 6/08/2009 WEIGL, Werner Professional misconduct: contravention s4.4.11(1)(b) failure to comply with a request for further information in relation to a disciplinary complaint


7/08/2009; corrected order 18/08/2009 — provide information sought by LSC by statutory declaration; fined $2000; pay LSC costs fixed as $2398.56

28 J126/2009 30/06/2009 28/08/2009 BATTIATO, Vita Professional misconduct: contravention of s4.4.411(1)(a) and (b) failure to comply with a request for a full written explanation of conduct regarding a disciplinary complaint; failure to comply with a request for further information and documents regarding a disciplinary complaint;


28/08/2009 — respond to request for a full written explanation and provide requested information and or documents; fined $1000; pay LSC costs fixed at $2238.30

29 J118/2009 30/06/2009 28/09/2009 MORGAN, Stuart Professional misconduct: contravention of rule 1.2 of Professional Conduct & Practice Rules 2005 failure to use best endeavours to complete a matter as soon as reasonably possible; contravention of rule 39.1 PCPR failure to communicate effectively and promptly with client; contravened s3.3.14(1)(b) of Legal Profession Act 2004 failing to disburse trust money in accordance with written direction.



30 J140/2009 30/07/2009 2/10/2009 BRAMICH, Mark Professional misconduct: contravention of s4.4.11(1)(a) — failure to comply with a request to provide a full written explanation of conduct regarding a disciplinary complaint.


2/10/2009 — reprimanded; pay LSC costs fixed at $1200

31 J141/2009 3/08/2009 21/08/2009 WONG, Jonathan

Professional misconduct: contravention of s4.4.11(1)(b) — failure to comply with a request to provide further information and documents regarding a disciplinary complaint


21/08/2009 — undergo 10 hours of training in relation to practice management and other ethics (in addition to any other training required in relation to CPD); fined $1800; pay LSC costs fixed at $1529.60

32 J146/2009 10/08/2009 29/09/2009; 21/10/2009; 18/02/2010

BRONDOLINO, Rose-Mary

Professional misconduct: contravention of s4.4.11(1)(a) — failure to comply with a request for a full written explanation of conduct regarding a disciplinary complaint


21/01/2010; 18/02/2010 — fined $1000; pay LSC costs fixed at $9204.70

33 J145/2009 12/08/2009 15/10/2009 MOSHEL, Barry Professional misconduct: contravention of s4.4.11(1)(b) — failure to comply with a request to provide further information and documents regarding a disciplinary complaint


15/10/2009 — provide in writing the information required by the Commissioner; fined $2500; pay LSC costs fixed at $1740.60


NO.VCAT REFERENCE


HEARING DATE(S)


FINDING OF VCAT


34 J154/2009 14/09/2009 11/11/2009 CHURKOVICH, Joseph Denis

Professional misconduct: contravention of s4.4.11(1)(a) — failure to comply with a request to provide a full written explanation of conduct regarding a disciplinary complaint


11/11/2009 — provide full written explanation of conduct regarding the disciplinary complaint; fined $1000; pay LSC costs fixed at $1459.60

35 J152/2009 15/09/2009 24/11/2009; Rehearing 28/01/2010; 10/02/2010; 6/05/2010

LOLICATO, Santo Professional misconduct: contravention of s4.4.11(1)(b) — failure to comply with a request to provide further information and documents regarding a disciplinary complaint


31/03/2010 & 6/05/2010 — fined $1000; provide written answers to the questions contained in LSC's letter; pay LSC costs fixed at $7798.20

36 J153/2009 15/09/2009 26/11/2009; 2/12/2009

MORGAN, Stuart William

Professional misconduct: contravention of s4.4.11(1)(b) — failure to comply with a request to provide further information regarding a disciplinary complaint


2/12/2009 — provide further information sought by LSC; practising certificate cancelled from and including 1/1/2010; not apply for a local practising certificate that comes into operation prior to 1 July 2010; pay LSC costs fixed at $2718.60

37 J177/2009 20/10/2009 17/12/2009 PALMER, John C Professional misconduct: contravention of s4.4.11(1)(a) — failure to comply with a request to provide a full written explanation of conduct regarding a disciplinary complaint



38 J174/2009 22/10/2009 13/05/2010 BERNSTEIN, Maurice

Misconduct at common law: — engaging in legal practice when not holding a practising certificate entitling to do so; alternatively Professional misconduct; — contravention of ss2.2.2(1) and/or 2.2.3(1)


13/05/2010 — local practising certificate not to be granted before 12/05/2020; pay LSC costs agreed at $5000

39 J182/2009 23/10/2009 1/12/2009 CALDWELL, Mark G

Professional misconduct: contravention of s4.4.11(1)(b) — failure to comply with a request to provide other information and documents regarding a disciplinary complaint



40 J189/2009 12/11/2009 18/12/2009; 20&21/4/2010

Legal Practitioner

Misconduct at common law within s4.4.3(1): intentionally sending documents to another person knowing them to be copied in breach of a Court order, and failure to take any, or any reasonable step thereafter to bring the fact to the attention of the Court, opposing party or instructing solicitor

Application is dismissed

21/4/2010 — application is dismissed; respondent's application for costs dismissed

41 J195/2009 30/11/2009 6/05/2010 MOORE, Andrew J

Professional misconduct: engaging in conduct that justifies finding that practitioner was not a fit and proper person to engage in legal practice, namely the conduct which led to the practitioner becoming a bankrupt being, his failure to meet taxation obligations over the period 1 July 1990 to 30 March 2007


1/06/2010 — reprimanded; fined $50,000; conditions placed upon practising certificate; pay LSC costs — to be agreed, if no agreement to be taxed


NO.VCAT REFERENCE


HEARING DATE(S)


FINDING OF VCAT


42 J6/2010 21/01/2010 18/03/2010 TRAN, Madeleine

Professional misconduct: contravention of s4.4.11(1)(b) — failure to comply with a request to provide further information and documentation sought regarding a disciplinary complaint


18/03/2010 — respond to the request for further information and documentation; fined $1000; pay LSC costs fixed at $1498.40

43 J28/2010 12/04/2010 24/06/2010 SAPOUNTZIS, Dimitra (Debbie)

Professional misconduct: breach rule 22.1 — breach of Undertaking;


24/06/2010 — reprimanded; pay LSC costs fixed at $5000

1.16 Disciplinary applications referred to VCAT in the period 1/7/09 to 30/6/10 in which the application was awaiting hearing and/or determination as at 30 June 2010

Figure 46: Disciplinary applications referred in 2009-10 and awaiting hearing and/or determination as at 30 June 2010

NO.

DATE CHARGE REFERRED TYPE OF CHARGES STATUS

Case 1 11/03/2010 Professional misconduct: contravention of s2.2.2(1) — engaging in legal practice whilst not an Australian legal practitioner (x 7); further and alternatively professional misconduct as defined at common law (x 7): attempting to engage in legal practice whilst not an Australian legal practitioner (x 1)

Part heard. Listed for further hearing on 18 August 2010

Case 2 7/05/2010 Professional misconduct: contravention of s4.4.11(1)(a) — failure to comply with a request to provide a full written explanation of conduct regarding a disciplinary complaint

Listed for hearing 2 August 2010

Case 3 22/05/2010 Professional misconduct: engaging in conduct that justifies finding that practitioner is not a fit and proper person to engage in legal practice namely charging executor's commission on estate of deceased when no entitlement to do so; dishonest and misleading some beneficiaries of an estate in relation to charging of executor's commission and failing in duties to beneficiaries of an estate; further and alternative misconduct at common law (x2)

Listed for hearing 12 July 2010

Case 4 6/05/2010 Professional misconduct: contravention of s4.4.11(1)(a) — failing to comply with a request to provide a full written explanation of conduct regarding a disciplinary complaint


Case 5 6/05/2010 Professional misconduct: contravention of s4.4.11(1)(a) — failing to comply with a request to provide a full written explanation of conduct regarding a disciplinary complaint


Case 6 27/05/2010 Professional misconduct: contravention of s4.4.11(1)(b) — failing to comply with a request to provide copies of files regarding a disciplinary complaint


Case 7 28/06/2010 Professional misconduct under s4.4.3 of the Act or alternatively at common law: engaging in a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence and engaging in gross delay in returning documents after being requested to do so by a solicitor acting for the plaintiff in a matter, the Legal Services Commissioner and others, and being ordered to do so by the Supreme Court.

Awaiting hearing date

Case 8 28/06/2010 Professional misconduct: contravention s4.4.11(1)(a) — failing to comply with a request to provide a full written explanation of conduct regarding a disciplinary complaint

Awaiting hearing date


2.1 Old Act complaints closedFigure 47 shows the number of old Act complaints closed by the Legal Services Commissioner during 2009–10 by complaint type. As at 30 June 2009, there were no open complaints under the old Act about barristers. Included in the 12 complaints that were finalised in the period, there were three complaints that were ‘own motion’ investigations commenced by the Law Institute of Victoria under section 145(2) of the old Act.

2.2 Outcomes of old Act complaints closedFigure 48 shows the outcomes of the 12 old Act complaints closed during 2009–10.

2.3 Investigations outstanding under the old ActAs at 30 June 2010 there were four disciplinary investigations outstanding under the old Act. These remain ongoing as a result of either other related proceedings having delayed the progress of the investigation, or the practitioner has been unable to be located at some point during the investigation.

2.4 LSC alternative disciplinary actionsThere was one alternative disciplinary action taken in 2009–10. In this matter, the LSC was satisfied that there was a reasonable likelihood that VCAT would find the practitioner guilty of unsatisfactory conduct. The practitioner consented to a reprimand.

1Of these four files, there was one ‘mixed’ file that was closed. The outcome of the mixed file was that the practitioner was unlikely to be found guilty of a disciplinary breach and the dispute, being a pecuniary loss, was dismissed under s141(1) of the old Act.2On reassessing the materials related to these two investigations commenced by the LIV under section 145(2), the LSC determined that there was insufficient evidence to support continuing the investigations.3In the 2008–09 Annual Report, 15 complaints under the old Act were reported as being outstanding as at 30 June 2009. One file was reopened during the period, therefore the number of complaints that were open/current during the year was 16.

Part 2 Complaints and disputes outstanding under the Legal Practice Act 1996 (the old Act)On 12 December 2005, the Legal Services Commissioner inherited 719 complaint and dispute files which had been opened under the Legal Practice Act 1996 (“the old Act”). The finalisation of these old Act files has been a key focus of the Legal Services Commissioner.

Figure 48: Outcomes of old Act complaints closed

OUTCOME TOTAL

LSC formed view that VCAT likely to find practitioner or firm guilty of a disciplinary breach and filed charges at VCAT 5

LSC formed view that VCAT likely to find practitioner or firm guilty of a disciplinary breach and took alternative disciplinary action 1

LSC formed view that VCAT unlikely to find practitioner or firm guilty of a disciplinary breach and dismissed the complaint 41

LSC closed investigation 22

Total 123

Figure 47: Old Act complaints closed

Conduct 11

Conduct & Dispute (Mixed) 1

Total: 12


2.5 Charges filed at VCATFigure 49 shows the number of charges filed at VCAT in 2009–10.

4 These charges arise from 5 files about the same practitioner(s) and/or law firm in which the LSC determined in the period 1 July 2009 to 30 June 2010 that VCAT was likely to find the practitioner or firm guilty of a disciplinary breach under the old Act. One of these matters was an investigation under s145(2) of the old Act.

Figure 49: Charges filed at VCAT

HEARD BY VCAT DURING 2009–10

AWAITING HEARING AND/OR ORDERS BY VCAT AS AT 30 JUNE 10 TOTAL

Charges filed in 2009–10 0 14 1

Charges filed in previous years 5 2 7

TOTAL 5 3 8

2.6 Disciplinary applications referred to VCAT under the Legal Practice Act 1996 (old Act) in which the application was heard and determined in the period 1/7/09 to 30/6/10

Figure 50: Disciplinary applications referred to VCAT under the old Act and determined in 2009-10

NO.VCAT REFERENCE


HEARING DATE(S)


FINDING OF VCAT


1 J197/2008 2/10/2008 29/4/2009; 13 & 29/5/2009; 3 & 5/6/2009

RALLIS. Elias Misconduct: engaging in unqualified legal practice; receiving trust money when not authorised to do so; misappropriation of trust money

Misconduct (x2); misconduct at common law (x2)

23/07/2009 — may not apply for a practising certificate before 31/12/2010; may not apply for a PC which would authorise receipt of trust money before 1/07/2014; pay $2161.50 to the complainant; pay LSC costs fixed at $24500

2 J52/2009 23/03/2009 1/07/2009, 29/07/2009

RUSHFORD, Robert

Misconduct: contravention of s149(1)(a) and (b) failure to comply with a request for a full written explanation of conduct regarding a disciplinary complaint, failure to comply with a request for a file

Misconduct (x6) — in relation to this application and J53 & J59/2009 (Note: orders made also include J49 & J64/2009 — see Part A)

3/07/2009, 30/7/2009 — respond by statutory declaration to requests for a full written explanation of conduct; fined $2500; may not apply for a PC until 30/7/2011; pay LSC costs (see Part A — J49/2009 for details)

3 J53/2009 23/03/2009 1/07/2009, 29/07/2009

RUSHFORD, Robert


Misconduct: see J52/2009

3/07/2009, 30/07/2009

4 J59/2009 23/03/2009 1/07/2009, 29/07/2009

RUSHFORD, Robert


Misconduct: see J52/2009

3/07/2009, 30/07/2009


2.7 Applications referred to VCAT in the period 1/07/09 to 30/06/10 pursuant to the Legal Practice Act 1996 which were awaiting hearing and/or final orders as at 30 June 2010

Figure 51: Applications referred to VCAT under the old Act during 2009–10 and awaiting hearing and/or final orders at 30 June 2010

NO.

DATE CHARGE REFERRED TYPE OF CHARGES STATUS

Case 1 12/06/2009 Misconduct: without instructions (x2); act as legal practitioner for a person without instructions and without advising on the litigation process, costs and time, carrying on practice with disregards for rights and obligations of a person.

Listed for Directions hearing on 17 September 2010

Case 2 12/06/2003 Misconduct — unauthorised entry and sale of client's property for legal costs Part heard. Listed for further hearing on 18 August 2010

Case 3 25/05/2010 Misconduct – contravention of rule 8.2 of the Professional Conduct and Practice Rules 2003 (“the Rules”), failure to avoid a conflict of interest between two clients; contravention of rule 8.5.1 of the Rules, failure to obtain the written acknowledgement and agreement of each party before acting for two clients in the one matter; contravention of rule 2.1 of the Rules, failure to exercise all due skill and diligence and/or a failure to act in the best interest of a client; alternatively or further to the above charges, misconduct at common law.

Listed for Directions hearing on 13 August 2010

2.8 Other disciplinary matters

Outstanding charges before VCAT — referred by the Law Institute prior to commencement of the Legal Profession Act 2004On 24 February 2010 a final hearing was held and orders were made in relation to charges referred by the Law Institute of Victoria on 12 March 2003.

VCAT ordered that on the giving of an undertaking to VCAT, the charge against the practitioner was struck out with a right of reinstatement, and the practitioner was ordered to pay 50% of the Law Institute’s costs in the matter.

Appeal to the Supreme CourtAs at 30 June 2010 there was an outstanding matter on appeal before the Supreme Court of Victoria. This matter is listed for hearing on 19 July 2010.

Application for special leave to appeal to the High Court of AustraliaThis matter was an application for special leave to appeal to the High Court from the judgment and order of the Court of Appeal of the Supreme Court of Victoria. The High Court ordered on 10 March 2010 that the application for special leave to appeal to the Court be dismissed with costs.

The originating charge of misconduct under the Legal Practice Act 1996, was referred to VCAT on or about 27 June 2007. The charge related to the practitioner preparing and signing a document for use in court, knowing it to be false and misleading. On 14 November 2004, VCAT found the practitioner guilty of misconduct at common law and ordered that the legal practitioner may not apply for a practising certificate before 4 January 2014; and was to pay the Legal Services Commissioner’s costs (VCAT reference J135/2007; LSC v Isaac Brott).

96

DelegationsUnder section 6.3.12 of the Legal Profession Act 2004, the Legal Services Commissioner may delegate some of the functions of his office to an employee or to a prescribed person. The Law Institute and the Victorian Bar are prescribed persons, as are the members of the Ethics Committee of the Victorian Bar.

The Legal Services Commissioner is required at least once every 12 months to undertake an audit of the existing delegations to determine whether each delegation is still appropriate. In early March 2010, following the appointment of Michael McGarvie as Commissioner, an audit of the delegations was undertaken. As at the date of the 2009–10 audit, there

were 20 current and operating delegations. As part of the audit, the decision was made to revoke all 20 delegations so as to update and consolidate the delegations, and create 12 new delegations. Since the audit, a further six new delegations have been made.

Appendices

Appendices 97

Current delegationsFigure 52 lists all of the delegations made by the Legal Services Commissioner and in force at the end of 2009–10. Figure 52 includes delegations to internal and external persons.

Figure 52: Delegations made under the Legal Profession Act 2004

DATE OF DELEGATION DELEGATE FUNCTIONS

3 March 2010 Director, Investigations

Part 3.3— Trust Money and Trust AccountsSection 3.3.44(2)Comply with request from trust account inspector

Part 4.2 — Making a ComplaintSection 4.2.7 — time limits for complaintsSection 4.2.8 — notification of a complaint to a law practice or an Australian legal practitionerSection 4.2.9 — requirement for further information from complainantSection 4.2.10 — power to summarily dismiss a complaint

Part 4.3, Division 2 — Dealing with Civil ComplaintsSection 4.3.3 — lodgement of disputed costsSection 4.3.4 — dealing with lodged costsSection 4.3.5 — attempt to resolve civil disputeSection 4.3.5A(1) — prepare, certify and distribute settlement agreementSection 4.3.6 — notice where civil dispute is not likely to be resolved, or is unsuitable for resolutionSection 4.3.7 — notice where dispute resolution fails

Part 4.3, Division 3 — MediationSection 4.3.9 — appointment of mediatorSection 4.3.13 — power to dismiss complaint where complainant fails to attend mediation, and requirement to provide notice to complainant where law practice or Australian legal practitioner fails to attend mediation

Part 4.3, Division 4 — Resolution of Civil Disputes by the TribunalSection 4.3.15 — notice about unresolved disputes

Part 4.4, Division 3 — InvestigationsSection 4.4.7— investigation of disciplinary complaintSection 4.4.8 — investigation without complaintSection 4.4.9 — referral of disciplinary complaint to prescribed investigatory body for investigationSection 4.4.10(3) — powers following receipt of a report from a prescribed investigatory body Section 4.4.11— power to require practitioner, law practice and others to provide information and documentsSection 4.4.12 — investigation to be conducted expeditiouslySection 4.4.13(1) — powers following investigationSection 4.4.13(3) — powers in relation to unsatisfactory professional conductSection 4.4.13(4) — power to require compensation Section 4.4.13(5) — obligation to take no further actionSection 4.4.13(6) — power to rely on recommendation in a report of a prescribed investigatory bodySection 4.4.14 — notice of decision

Part 4.4, Division 7 — Inter-jurisdictional provisionsSection 4.4.33 — request to another jurisdiction to investigate complaint or conductSection 4.4.34 — request from another jurisdiction to investigate complaint or conductSection 4.4.36 — co-operation with corresponding authorities

Schedule 2, Part 6 — Disputes and DisciplineClause 6.1— current disputes to continue to be dealt with in accordance with the Legal Practice Act 1996Clauses 6.2 — current complaints to be dealt with in accordance with the Legal Practice Act 1996 Clause 6.3 — current investigations to be conducted in accordance with the Legal Practice Act 1996



3 March 2010 Manager, Complaints and Investigations

Part 3.3— Trust Money and Trust AccountsSection 3.3.44(2) — comply with request from trust account inspector

Part 4.2 — Making a ComplaintSection 4.2.7 — time limits for complaintsSection 4.2.8 — notification of a complaint to a law practice or an Australian legal practitionerSection 4.2.9 — requirement for further information from complainantSection 4.2.10 — power to summarily dismiss a complaint

Part 4.3, Division 2 — Dealing with Civil ComplaintsSection 4.3.3 — lodgement of disputed costsSection 4.3.4 — dealing with lodged costsSection 4.3.5 — attempt to resolve civil disputeSection 4.3.5A(1) — prepare, certify and distribute settlement agreement.Section 4.3.6 — notice where civil dispute is not likely to be resolved, or is unsuitable for resolutionSection 4.3.7 — notice where dispute resolution fails



Part 4.4, Division 3 — InvestigationsSection 4.4.7— investigation of disciplinary complaintSection 4.4.8 — investigation without complaintSection 4.4.9 — referral of disciplinary complaint to prescribed investigatory body for investigationSection 4.4.10(3) — powers following receipt of a report from a prescribed investigatory body Section 4.4.11— power to require practitioner, law practice and others to provide information and documentsSection 4.4.12 — investigation to be conducted expeditiouslySection 4.4.13(1) — powers following investigationSection 4.4.13(3)(b) — power to reprimand or caution practitionerSection 4.4.13(3)(c) — power to take no further action Section 4.4.13(4) — power to require compensation Section 4.4.13(5) — obligation to take no further actionSection 4.4.13(6) — power to rely on recommendation in a report of a prescribed investigatory bodySection 4.4.14 — notice of decision



Appendices 99


3 March 2010 Complex Complaints Adviser


Part 4.2 — Making a ComplaintSection 4.2.7 — time limit for complaintsSection 4.2.8 — notification of a complaint to a law practice or an Australian legal practitionerSection 4.2.9 — requirement for further information from complainantSection 4.2.10 — power to summarily dismiss a complaint









3 March 2010 Team Leader, Complaints and Investigations

Part 3.3 — Trust Money and Trust AccountsSection 3.3.44(2) — comply with request from trust account inspector

Part 4.2 — Making a ComplaintSection 4.2.7(4) — accept costs dispute out of timeSection 4.2.8 — notification of a complaintSection 4.2.9 — requirement for further information from complainant

Part 4.3, Division 2 — Dealing with Civil ComplaintsSection 4.3.3(2) — may waive requirement to lodge disputed costsSection 4.3.3(3) —dismiss costs dispute where costs not lodgedSection 4.3.5(1) — attempt to resolve a civil disputeSection 4.3.5(3) — may require legal practitioner or law practice to provide relevant documentsSection 4.3.5A(1) — prepare, certify and distribute settlement agreementSection 4.3.7 — notice where dispute resolution fails

Part 4.4, Division 3 — InvestigationsSection 4.4.7— investigation of disciplinary complaintSection 4.4.9(3) — extend date for report by prescribed investigatory body

3 March 2010 Team Leader, Dispute Resolution

Part 3.3 — Trust Money and Trust AccountsSection 3.3.44(2) — comply with request from trust account inspector

Part 4.2 — Making a ComplaintSection 4.2.7(4) — accept costs dispute outside of timeSection 4.2.8 — notification of a complaintSection 4.2.9 — requirement for further information from complainant

Part 4.3, Division 2 — Dealing with Civil ComplaintsSection 4.3.3(2) — may waive requirement to lodge disputed costsSection 4.3.3(3) —dismiss costs dispute where costs not lodgedSection 4.3.5(1) — attempt to resolve a civil disputeSection 4.3.5(3) — may require legal practitioner or law practice to provide relevant documentsSection 4.3.5A(1) — prepare, certify and distribute settlement agreementSection 4.3.7 — notice where dispute resolution fails

Part 4.4, Division 3 — InvestigationsSection 4.4.7— investigation of disciplinary complaintSection 4.4.9(3) — extend date for report by PIB

3 March 2010 Complaints Officer Part 4.3 — Civil Complaints and Disputes4.3.5(1) — attempt to resolve civil dispute

Part 4.4 — Disciplinary Complaints and Discipline4.4.7 — investigate disciplinary complaint

3 March 2010 Dispute Resolution Officer

Part 4.3 — Civil Complaints and Disputes4.3.5(1) — attempt to resolve civil dispute

Part 4.4 — Disciplinary Complaints and Discipline4.4.7 — investigate disciplinary complaint

3 March 2010 Senior Policy Officer

Section 3.3.44(2)Comply with request from trust account inspector

Section 7.2.14Disclosure of information by local regulatory authorities

3 March 2010 Manager, Administration and Complaint Support Services

Section 3.3.44(2)Comply with request from trust account inspector


24 March 2010 Director, Investigations


Appendices 101


24 March 2010 Manager, Complaints and Investigations


24 March 2010 Complex Complaints Adviser


24 March 2010 Team Leader, Complaints and Investigations


20 April 2010 Law Institute of Victoria Ltd

Part 4.3, Division 2 — Dealing with Civil ComplaintsSection 4.3.5(1) — must attempt to resolve civil disputeSection 4.3.5(3) — may require law practice or legal practitioner to provide relevant documents or informationSection 4.3.5A(1)(a) — prepare settlement agreement

20 April 2010 Victorian Bar Inc Part 4.3, Division 2 — Dealing with Civil ComplaintsSection 4.3.5(1) — must attempt to resolve civil disputeSection 4.3.5(3) — may require law practice or legal practitioner to provide relevant documents or informationSection 4.3.5A(1)(a) — prepare settlement agreement

20 April 2010 Members of the Ethics Committee of the Victorian Bar

Part 4.3, Division 2 — Dealing with Civil ComplaintsSection 4.3.5(1) — must attempt to resolve civil disputeSection 4.3.5(3) — may require law practice or legal practitioner to provide relevant documents or informationSection 4.3.5A(1)(a) — prepare settlement agreement

28 June 2010 Director, Investigations

Section 4.4.13(2)Power to apply to the Tribunal in relation to professional misconduct

28 June 2010 Team Leader, Complaints and Investigations

Section 4.4.11Power to require practitioner, law practice and others to provide information and documents


Delegations revoked or made redundantThere were 20 delegations revoked in 2009—10. The main reasons the delegations were revoked was to consolidate and update the delegations in light of the appointment of a new Commissioner. The revoked delegations are detailed in Figure 53.

Figure 53: Delegations that have become redundant under the Legal Profession Act 2004.

DATE OF REVOCATION

DATE OF DELEGATION DELEGATE FUNCTIONS DELEGATED (AND REVOKED)

REASON FOR REVOCATION

3 March 2010 28 December 2005

Director, Investigations

Part 4.2 — Making a ComplaintSection 4.2.8 — notification of a complaint to a law practice or an Australian legal practitionerSection 4.2.9 — requirement for further information from complainantSection 4.2.10 — power to summarily dismiss a complaint

Part 4.3, Division 2 — Dealing with Civil ComplaintsSection 4.3.3 — lodgement of disputed costsSection 4.3.4 — dealing with lodged costsSection 4.3.5 — attempt to resolve civil disputeSection 4.3.6 — notice where civil dispute is not likely to be resolved, or is unsuitable for resolutionSection 4.3.7 — notice where dispute resolution fails



Part 4.4, Division 3 — InvestigationsSection 4.4.7— investigation of disciplinary complaintSection 4.4.8 — investigation without complaintSection 4.4.9 — referral of disciplinary complaint to prescribed investigatory body for investigationSection 4.4.10(3) — powers following receipt of a report from a prescribed investigatory body Section 4.4.11— power to require practitioner, law practice and others to provide information and documentsSection 4.4.12 — investigation to be conducted expeditiouslySection 4.4.13(1) — powers following investigationSection 4.4.13(3)(b) — caution or reprimand practitionerSection 4.4.13(3)(c) — take no further actionSection 4.4.13(4) — power to require compensation Section 4.4.13(5) — obligation to take no further actionSection 4.4.13(6) — power to rely on recommendation in a report of a prescribed investigatory bodySection 4.4.14 — notice of decision


Consolidate functions into one instrument

3 March 2010 27 January 2006


Section 4.2.7 — receiving complaints made out of time

Schedule 2, Part 6 — Disputes and DisciplineClause 6.1— current disputes to continue to be dealt with in accordance with the Legal Practice Act 1996Clauses 6.2 — current complaints to be dealt with in accordance with the Legal Practice Act 1996 Clause 6.3 — current investigations to be conducted in accordance with the Legal Practice Act 1996Clause 6.4 — reviews outstanding under old Act


3 March 2010 26 November 2007


Section 4.3.5A(1) — prepare, certify and distribute settlement agreement


Appendices 103

DATE OF REVOCATION



3 March 2010 20 March 2008 Director, Investigations

Section 7.2.14 — disclosure of information by local regulatory authorities


3 March 2010 6 June 2008 Director, Investigations

Section 3.3.44(2) — comply with request from trust account inspector


3 March 2010 30 March 2009 Manager, Complaints and Investigations


Part 4.2 — Making a ComplaintSection 4.2.7(4) — accept a costs dispute made out of timeSection 4.2.8 — notification of a complaint to a law practice or an Australian legal practitionerSection 4.2.9 — requirement for further information from complainant

Part 4.3, Division 2 — Dealing with Civil ComplaintsSection 4.3.3(2) — may waive requirement to lodge disputed costsSection 4.3.3(3) — dismiss costs dispute where costs not lodgedSection 4.3.5A(1) — prepare, certify and distribute settlement agreement.Section 4.3.5(3) — may require practitioner or law practice to provide documentsSection 4.3.6 — notice where civil dispute is not likely to be resolved, or is unsuitable for resolutionSection 4.3.7 — notice where dispute resolution fails


Part 4.4, Division 3 — InvestigationsSection 4.4.9(1) — refer disciplinary complaint to prescribed investigatory bodySection 4.4.9(2) — referral may state detailsSection 4.4.9(3) — extend the date for reportSection 4.4.11— power to require practitioner, law practice and others to provide information and documents

Section 7.2.14 —Disclosure of information by local regulatory authorities


3 March 2010 30 March 2009 Manager, Complaints and Investigations

Part 4.2 — Making a ComplaintSection 4.2.10 — power to summarily dismiss a complaint

Part 4.3 — Civil Complaints and Disputes Section 4.3.5(1) — attempt to resolve a civil disputeSection 4.3.5(2) — refer dispute to mediation or costs assessmentSection 4.3.5(4) — evidence is not admissibleSection 4.3.5(5) — does not apply if complaint dismissed

Part 4.4 — Disciplinary Complaints and DisciplineSection 4.4.7— investigation of disciplinary complaintSection 4.4.8 — investigation without complaintSection 4.4.9(4) —further directions to PIBSection 4.4.9(5) — pay reasonable costs to PIBSection 4.4.33 — request to another jurisdiction to investigate complaint or conduct



DATE OF REVOCATION



3 March 2010 29 April 2009 Complex Complaints Adviser


Part 4.2 — Making a ComplaintSection 4.2.7 — accept a complaint made out of timeSection 4.2.8 — notification of a complaint to a law practice or an Australian legal practitionerSection 4.2.9 — requirement for further information from complainantSection 4.2.10 — power to summarily dismiss a complaint







Schedule 2, Part 6 — Disputes and DisciplineClause 6.1— current disputes to continue to be dealt with in accordance with the Legal Practice Act 1996Clauses 6.2 — current complaints to be dealt with in accordance with the Legal Practice Act 1996 Clause 6.3 — current investigations to be conducted in accordance with the Legal Practice Act 1996Clause 6.4 — reviews outstanding under old Act

Update instrument

Appendices 105

DATE OF REVOCATION



3 March 2010 30 March 2009 Team Leader, Complaints and Investigations

Section 4.2.7(4) — accept costs dispute made out of time

Section 4.3.3(2) — complainant need not lodge disputed amountSection 4.3.3(3) — dismiss complaint where costs not lodged

Update instrument

3 March 2010 30 March 2009 Team Leader, Dispute Resolution

Section 4.2.7(4) — accept costs dispute made out of time

Section 4.3.3(2) — complainant need not lodge disputed amountSection 4.3.3(3) — dismiss complaint where costs not lodged

Update instrument

3 March 2010 21 October 2009

Manager, Administration and Complaint Support Services


Update instrument

20 April 2010 1 February 2007

Law Institute of Victoria Ltd

Section 4.3.5(1) — must attempt to resolve civil disputeSection 4.3.5(3) — may require law practice or legal practitioner to provide relevant documents or information




Schedule 2, Part 6 — Disputes and DisciplineClause 6.2 — current complaints to be dealt with in accordance with the Legal Practice Act 1996 Clause 6.3 — current investigations to be conducted in accordance with the Legal Practice Act 1996

Powers under the old Act no longer relevant.



Schedule 2, Part 6 — Disputes and DisciplineClause 6.1— current disputes to continue to be dealt with in accordance with the Legal Practice Act 1996


20 April 2010 26 September 2007


Section 4.3.5A(1)(a) — prepare settlement agreement Consolidate functions into one instrument


Victorian Bar Inc

Schedule 2, Part 6 — Disputes and DisciplineClause 6.2 — current complaints to be dealt with in accordance with the Legal Practice Act 1996 Clause 6.3 — current investigations to be conducted in accordance with the Legal Practice Act 1996



Victorian Bar Inc

Schedule 2, Part 6 — Disputes and DisciplineClause 6.1— current disputes to continue to be dealt with in accordance with the Legal Practice Act 1996

Powers under the old Act no longer relevant


Victorian Bar Inc




Ethics Committee of the Victorian Bar Inc




Ethics Committee of the Victorian Bar Inc

Section 4.3.5A(1)(a) — prepare settlement agreement Consolidate functions into one instrument


The Annual Report of the Legal Services Commissioner is prepared in accordance with all relevant Victorian legislation. This index has been prepared to facilitate identification of the Commissioner’s compliance with the statutory disclosure requirements.

Disclosure Index

LEGISLATION REQUIREMENT PAGE REFERENCE

MINISTERIAL DIRECTIONS

Report of operations – FRD Guidance

Charter and purpose

FRD 22B Manner of establishment and the relevant Ministers 2

FRD 22B Objectives, functions, powers and duties 2

FRD 22B Nature and range of services provided 2

Management and structure

FRD 22B Organisational structure 28, 30

Financial and other information

FRD 8B Budget portfolio outcomes N/A

FRD 10 Disclosure index 106–108

FRD 12A Disclosure of major contracts N/A

FRD 15B Executive officer disclosures 32–33

FRD 22B, SD 4.2(k) Operational and budgetary objectives and performance against objectives 6–26

FRD 22B Employment and conduct principles 34

FRD 22B Occupational health and safety policy 33

FRD 22B Summary of the financial results for the year 36–37

FRD 22B Significant changes in financial position during the year Nil

FRD 22B Major changes or factors affecting performance Nil

FRD 22B Subsequent events Nil

FRD 22B Application and operation of Freedom of Information Act 1982 35

Appendices 107


FRD 22B Compliance with building and maintenance provisions of Building Act 1993 35

FRD 22B Statement on National Competition Policy 36

FRD 22B Application and operation of the Whistleblowers Protection Act 2001 35–36

FRD 22B Details of consultancies over $100 000 Nil

FRD 22B Details of consultancies under $100 000 36

FRD 22B Statement of availability of other information 37

FRD 24C Reporting of office based environmental impacts 38–41

FRD 25 Victorian Industry Participation Policy disclosures 36

FRD 29 Workforce Data disclosures 31–32

SD 4.5.5 Risk management compliance attestation 38

SD 4.2(g) General information requirements 2–41

SD 4.2(j) Sign-off requirements ii

FINANCIAL STATEMENTS

Financial statements required under Part 7 of the FMA

SD4.2(a) Statement of changes in equity 47

SD4.2(b) Operating statement 45

SD4.2(b) Balance sheet 46

SD4.2(b) Cash flow statement 48

Other requirements under Standing Direction 4.2

SD4.2(a) Compliance with Australian accounting standards and other authoritative pronouncements 49–58

SD4.2(a) Statement of Compliance 49

SD4.2(d) Rounding of amounts 55

SD4.2(c) Accountable officer’s declaration 44

Other disclosures as required by FRDs in notes to the financial statements

FRD 9A Departmental disclosure of administered assets and liabilities 67

FRD 11 Disclosure of ex-gratia payments 71

FRD 13 Disclosure of parliamentary appropriations N/A

FRD 21A Responsible person and executive officer disclosures 71–72



FRD 102 Inventories N/A

FRD 103D Non-current physical assets 64

FRD 104 Foreign currency N/A

FRD 106 Impairment of assets 53

FRD 109 Intangible assets 64

FRD 107 Investment properties N/A

FRD 110 Cash flow statements 48

FRD 112A Defined benefit superannuation obligations 66

FRD 113 Investments in subsidiaries, jointly controlled entities and associates N/A

FRD 114A Financial Instruments – General government entities and public non-financial corporations 67–70

FRD 119 Contributions by owners 47

LEGISLATION

Freedom of Information Act 1982 35

Building Act 1993 35

Whistleblowers Protection Act 2001 35

Victorian Industry Participation Policy Act 2003 36

Financial Management Act 1994 49

Multicultural Victoria Act 2004 34

Legal Profession Act 2004 2

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Level 9, 330 Collins Street MELBOURNE VICTORIA 3000

Telephone: (03) 9679 8001 1300 796 344 (local call within Victoria) Fax: (03) 9679 8101 Email: [email protected] Website: www.lsc.vic.gov.au