Consumer Affairs Victoria (CAV)

Consumer Affairs Victoria (CAV)

 

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Contact Diarmuid Tel 0401416305                                                         email charada@mira.net

Jane Garret the Minister responsible for administering the trade practices act now called Australian Consumer Law and ensuring that Lawyers who provide services to Victorian families do not engage in:

misleading and deceptive conduct                                                     unconscionable conduct                                                                       unfairly empower oneself over another in a contract.

response to the failure of our government to implement the recommendations of the review of our inheritance laws and prevent the powerful vested interests of the legal industry of which she is a member from continuing to hurt our families.

A minister whose government was elected on the basis that they would look after families because the other lot certainly were not looking after families. Unfortunately we are governed by robots dressed in red and blue ties that are beholden to the legal brethren a brethren that are a self serving bunch of greedy pigs who do not give a toss about the well being of the creatures they rule over provided they get our votes at election time. God forbid if they had the strength and fortitude to stop law firms like Russell Kennedy from committing acts of fiscal necrophilia upon our parents graves. It would be too much to ask that our government made these monsters accountable and made it a statutory requirement that the files they held and have been paid for out of the inheritance of the children of the dead be available for inspection without the need to pay another member of the legal brethren $10,000 a day to wear a wig and state the obvious in front of another member of the wig wearing brethren who may or may not make a decision that the children of the departed have the right to make a lying deceiving lawyer accountable for his evil and despicable deeds.

The sooner this appalling culture of disrespect, for what is morally correct within our society, is made to cease, by the politicians that have the power to stop it, the better.

Response from The Victorian Minister for Consumer Affairs Victoria (CAV)

07 March 2016Jane Garret Minister for consumer affairs

The letter below was written to every single politician in the state of Victoria and all of the members of the federal parliament of Australia. This letter points out the failure of those responsible for ensuring that the development of the laws of our nation are properly enacted so as that families and the whole of our community benefit. The letter indicates that there has been a corruption by the legal industry so as that Lawyers who are Executors remain unaccountable to the family members of deceased estates and do not come under consumer law requirements or under their own professional practice regulator the Victorian Legal Services Commissioner. This leaves then free to lie to the children of their own mothers about their mothers wishes which is about as evil as one can get and has lead to the following statement.

The practice of sophistry by a fiduciary to obstruct the wishes of the dead is an act of Satan.

ARE THE PIGS WHO CHANGED THE RULES, NOW WALKING ON TWO LEGS?

A Democracy will self-destruct when the keepers of the rules become corrupt.

The keepers of the rules are the legal profession. They create the rules, interpret the rules and administer the rules by which our communities operate. It is essential for a healthy democracy to succeed that our communities know that the keepers of the rules are not:

  • Creating rules that favour the interests of the legal profession over the communities they serve.
  • Interpreting any rules to favour the legal profession, over the communities they serve.
  • Administering the rules in favour of the legal profession, over the communities they serve.

The bodies responsible for the regulation of lawyers are a hotch potch of government intrigue run and ruled by lawyers.

Each separate state has its own entity that deals with consumer complaints against lawyers. These bodies have been set up through a maze of historical events in each state which would make War and Peace look like a short story. In Victoria the body responsible for taking complaints against lawyers is the Legal Services Commissioner. I gather they are the agent of Consumer Affairs Victoria as Consumer Affairs Victoria, refer all consumer complaints against lawyers, to The Legal Services Commissioner. Since there is a defined link between The Trade Practices Act of 1974 and the provision of goods or services (Including legal services), the Federal and various State Departments of Consumer Affairs have a responsibility as does the Australian Competition and Consumer Commission to ensure that the keepers of the rules abide by Australian Consumer Law. The various Attorney Generals departments are ultimately responsible to the consumers of legal services to ensure that the keepers of the law respect consumer rights of their customers and do not corrupt the law by Interpreting the consumer laws in favour of their profession.

The National Review of our Succession Laws recommended in 2009, 18 years after reform had been mooted, that beneficiaries of a deceased estate would have a “Statutory Right” to access the estate file from a law firm.

In 2013 the Victorian Law Reform Commission in its report on Succession Law Reform, recommended that lawyers who are executors should come under the Legal Professional Act of 2004 and that the Law Institute of Victoria should write guidelines. One of the guidelines should be that lawyers have a statutory obligation to give the beneficiaries of a deceased estate access to the estate file, particularly when 100% of the beneficiaries want that access and there were no outstanding charges against the file. This simple rule will create a culture of transparency and protect Australian families from lawyer executors who commit criminal acts of fraud upon a deceased estate.

The objectives of the Australian Uniform Succession Law Reform Project, which was initiated in 1991 by the Standing Committee of Attorney Generals, is to unify succession laws throughout Australia so as to simplify Australia`s succession laws in order to reduce complexity and legal costs incurred by the families of the departed.

A committee of lawyers was set up in 1995 to investigate, fourteen years later the committee released a five volume final report.  Part of this report identified the imperative for transparency between the administrators of a deceased estate (mainly the legal profession) and beneficiaries of the estate (mainly the children of the deceased).

Volume one section 11.201 to 11.208 deals with the right of beneficiary’s to access documents pertaining to the administration of a deceased estate.

The committee`s most obvious and significant recommendation was that beneficiaries of a deceased estate should have statutory entitlement to inspect the documents that relate to the administration of the estate. Please refer below.

The National Committee’s view Beneficiaries’ statutory entitlement to inspect documents

11.201 Although the National Committee is mindful of not imposing unnecessary burdens on personal representatives, it nevertheless considers it desirable to encourage openness in the administration of estates. In an area where suspicion and distrust are common, access to information has the potential to diffuse many conflicts and avoid unnecessary litigation. It was for this reason that the National Committee, in its Wills Report, recommended a provision giving a statutory entitlement to various people to see the deceased’s will.

11.202 For the same reason, the National Committee is of the view that the model legislation should give beneficiaries a statutory entitlement to inspect the documents that relate to the administration of the estate.

11.203 The National Committee has considered whether a beneficiary should have access to all documents that are required to be maintained in relation to the administration of the estate, or only to such of those documents as are relevant to the beneficiary’s interest. If access were restricted to documents relevant to the particular beneficiary’s interest, a residuary beneficiary would be entitled to access to a wider range of documents than, say, the beneficiary of specific disposition. Although this approach would be consistent with the right of access under the general law, it has the potential to give rise to disputes about whether particular documents are relevant to an individual beneficiary’s interests. For that reason, the National Committee is of the view that every beneficiary should be entitled to have access to the documents that the personal representative is required to maintain.

 11.204 The model legislation should therefore provide that a beneficiary may, on giving reasonable notice to the personal representative, inspect the documents that the personal representative is required to retain and obtain copies of those documents.

11.205 The model legislation should also provide that the personal representative must allow the beneficiary, or the beneficiary’s agent, to inspect the documents or obtain copies of the documents.

11.206 Although a beneficiary is to have a right to obtain copies of documents, the beneficiary should be required to bear the cost of producing copies of those documents. Enforcement

 11.207 The model legislation should provide that, if a personal representative fails to comply with the obligation to give access to documents, the beneficiary may apply to the court for an order requiring the personal representative to comply with that obligation. That provision should be supported by court rules that create a summary procedure for the enforcement of the right of access. This is consistent with the other recommendations in this Report that provisions dealing with how particular applications are to be made should be in the court rules, rather than in the legislation.

11.208 Any procedure should be framed in a way that ensures that the court has a discretion in relation to ordering that documents be produced for inspection or copying, so that, in an appropriate case, the court may exercise its discretion to refuse the application for access.

On the back of this process of law reform the Victorian Attorney General the Hon Robert Clark requested the Victorian Law Reform Commission to conduct a review of Victoria’s Succession Laws according to community expectations. This report was tabled to the Victorian Parliament on 15 October 2013.

Section six of the report was dedicated to the role of professional executors (In particular lawyers). Lawyers are frequently nominated as executors of deceased estates due to their role in the construction of wills.

The commission addressed this particular area of succession law and recommended that lawyers who are performing the role of executors should now be covered by the Legal Professional Act of 2004 and that the Law Institute of Victoria write guidelines for these professionals.

In August of 2013 The Victorian Law Reform Commission completed its Succession Law Reform Report. Contained within this report are the following recommendations.

Recommendation 59                                                                                         The Legal Services Commissioner should be given jurisdiction to resolve a civil dispute between a legal practitioner and a beneficiary under a will or trust where the dispute relates to services provided by the legal practitioner to the estate in the capacity of executor or trustee. The procedures for resolving such a dispute would be the same as those which currently apply to civil disputes under Part 4.2 of the Legal Profession Act 2004 (Vic).

Recommendation 61                                                                                          The Law Institute of Victoria or other relevant body should make:                                                                                                               (a) uniform rules under the new uniform law that clarify the duties of legal practitioners in providing executorial services and charging for those services.                                                                 (b) in support of these rules, guidelines for legal practitioner executors on meeting their fiduciary responsibilities.

Recommendation 62                                                                                         The Victoria Law Foundation should publish a guide, or series of guides, on making wills and the role of the executor. The information should encompass the following topics and be made available in community languages:                                                     (a) questions and issues to consider when making a will, focusing on helping will-makers avoid problems commonly identified in wills made without legal advice and providing guidance about selecting an executor.                                                 (b) practical information for non-professional executors about what they need to do in that position, focusing on resources that can help them in meeting their responsibilities and identifying where they may obtain professional assistance                               (c) practical information for bereaved family and friends about what happens to the assets of a person after they die, focusing on what the executor needs to do before the estate can be distributed and the basis on which the estate might be charged for their services.

I have recently made enquiries to the Law Institute of Victoria and to the Victorian Attorney Generals Department but as yet have been unsuccessful in discovering whether or not recommendation 61 has been created.

The Victorian Succession Law Reform Report was completed in September 2013; 22 years after the initial project had begun. It is now January of 2016 twenty five years later and still there are no guidelines for lawyers who perform the role of executor. This means that lawyers who are executors still remain unaccountable to the families who have entrusted them with the power of executor in administering the financial affairs of a family member who has died.

The issues under law: (Australian Consumer Law)

Lawyers who are nominated as executors are generally nominated during the construction of the will. Quite frequently they become the executor due to the naivety and blind trust in the legal profession, by the will maker or because the will maker wants to avoid any distasteful discussions regarding who gets what and how, with their relatives as they know that when they are dead, they will not be around to worry about it.

The problem the legal industry has is that the lawyer, who is nominated as executor, is perceived by the will maker as a lawyer and thus this consumer of legal services, assumes they are dealing with a trusted professional lawyer, who is accountable to the laws and regulations of his profession. In Victoria that is The Legal Professional Act of 2004.

Unfortunately this is not the case, as lawyers who act as executors are not considered to be lawyers under The Legal Professional Act of 2004 but are considered to be executors, which means the regulator of lawyer misbehaviour does not intervene when the beneficiaries of a deceased estate complain about any crimes they may commit out of their own self-interest.

This is a very clear case of misleading and deceptive advertising under Australian Consumer Law which dates back to 1974, “Fourty Two Years”.

The fact that the Law Institute of Victoria has not written the guidelines as per the recommendations and the Victorian Attorney General refuses to address this neglect of duty is of great concern for Australian families, as it permits members of the legal profession who are carrying out a critical role in the development of a family, to remain unaccountable to family members, when being paid from a deceased estate.

The failure of the Attorney General`s department, the Law Institute of Victoria, the Legal Services Commissioner, The Legal Services Board and Consumer Affairs Victoria to ensure that the guidelines for lawyers who act as executors has been written, which would have included the statutory right for the beneficiaries, (particularly the children of the deceased when they represent 100% of the estate and are not in dispute with one another) to inspect and copy the lawyers file of the estate is reprehensible and is indicative of a cartel that is run by the legal profession in the state of Victoria, fixated upon the self-interest of the profession, instead of doing their job by protecting the consumer rights of our community that pays for their services.

I realise that many of you to whom I am writing are members of that cartel, but I appeal to your compassion, intelligence and strength and ask you to overcome your fear and help to eliminate the culture of Fiscal Necrophilia from our legal profession, as has been endured by my mother’s family at the hands of the law firm Russell Kennedy.

You can help to lend a hand by asking the Victorian Attorney General Martin Pakula, where are those guidelines for lawyers who are executors and if by some miracle you are provided with a copy, please ask him, where is the statutory provision, so as beneficiaries of a deceased estate can get access to the estate files from the lawyers without having to go to the horrendous expense and trauma of going to a court?  The creation of this provision in law will help to reduce the incidence of fiscal necrophilia committed by lawyers within the State of Victoria and will reduce the incidence of psychological torture that many Victorian families are subjected to when encountering a corrupt lawyer.

You will be doing a good thing for Australia and for Victoria.

Best Regards

Diarmuid Hannigan

In the State of Victoria the law firm Russell Kennedy is refusing to allow my mother’s family access to her deceased estate file.

Ian Bult who was a member of the law firm lied to my mother’s family about her wishes and concealed the evidence from them even though my sister was an executor. He then bullied her out of probate when she refused to agree with his lies by threatening her with greater and greater legal costs.

Despite making the various legal regulators aware of this man’s behaviour nothing has been done about it. Every regulator suggested we contact a lawyer. When I phoned the Supreme Court, unrepresented section I was informed that I needed to read a bible of Supreme Court rules and that the matter would be defended by a silk for whom we may have to pay if the case went against us. I asked the gentleman on the telephone if I was allowed to wear a wig as well and he hung up the phone.

                                SO IN ANSWER TO THE QUESTION:                                                       RE THE PIGS WHO CHANGED THE RULES,                                                      NOW WALKING ON TWO LEGS?                                        I AM AFRAID, THEY ARE!

Letter written to The Victorian Minister for Consumer Affairs              

 Saturday 20th of April 2013      

Diarmuid Hannigan                                                                                         236 Smith StreetCollingwood. Victoria 3066                                               94195044 charada@mira,net

To The Minister for Consumer Affairs

The Hon Heidi Victoria

Dear  Heidi

I am writing to you in your position as Minister for Consumer Affairs in order to alert you to a serious problem with regards to the methods currently being used to investigate consumer complaints against lawyers.

From my own reading of the situation it appears as if Consumers of legal services are stripped of their consumer rights when making complaints against lawyers because:

  • The state bodies that operate Australian Consumer Law refer all complaints against lawyers to the various legal services commissioners in each state.
  • These legal services commissioners operate under various legal services acts.
  • These acts do not recognise consumer rights.

Thus the investigating bodies do not consider consumer rights as part of their investigative process which means they are denying consumers their consumer rights.

Since the legal profession deals in death, divorce, debt and disability that have an intergenerational impact upon families who are consumers of legal services I would have thought that it would be paramount that these peoples consumer rights remain intact when complaining against the service provision of lawyers.

Apart from having a detrimental impact upon many Australian families the current position leaves our most vulnerable, our elderly citizens completely unprotected against the practices of predatory lawyers and their law firms which is a form of elder abuse.

It is interesting to note that certain law firms have invested heavily in the area of aged care and involve themselves as representatives on various committees regarding elder abuse, retirement villages and even writing the standards for aged health care.

It is concerning that these organisations are not obligated to observe Australian Consumer Law and do not have any obligation to the consumer rights of their own customers. One may ask the question.

How is that such organizations are permitted to have such a close association with the aged care industry when their own practices are not obliged to observe Australian consumer law?

What is the ACCC doing to ensure that our elderly are protected and have their consumer rights acknowledged when being provided with legal services?

I have attached (accc response 2) which details the hole in the current mechanism with regards to consumer complaints against lawyers with the supporting attachments.

I trust you will take this matter up with the Attorney General and work to ensure Australian consumers of legal services are acknowledged their consumer rights by the legal profession and that the legal fraternity is bound by Australian consumer law so as to benefit all Australian consumers.

Radio National (The law report) ran a broadcast last week relating to changes in the south Australian method of dealing with legal complaints and draw your attention to the two comments that they have published on their web site.

Reforms target Lawyers behaving badly

Comments (2)

Diarmuid Hannigan :

16 Apr 2013 6:49:40pm

If the ACCC where to investigate the legal profession for running a cartel, I wonder what they would discover.

Legal Services Commissioners operate under Legal Professional Acts. These acts do not incorporate consumer rights therefore when legal services commissioners investigate consumer complaints against lawyers consumers are denied their consumer rights.

The reason this hole has been created in the law is because the legal profession is self regulating and creates laws to suit itself which in my humble opinion exactly how a cartel operates.

Reply Alert moderator

  • Mary Cotter :

18 Apr 2013 7:59:25pm

From both personal experience and reading their own statistics, the Legal Services Commission systems are indeed heavily biased towards the lawyers and against the consumer/client bringing the complaint. In the case I have been involved with, even after the corrupt lawyer was finally forced by circumstances to admit to a couple of the numerous serious complaints made against him, the Victorian Legal Services Commissioner continued and continues to treat both myself and the former legal services consumer whom I assisted with his complaint as though we were a couple of evil-minded liars who invented the whole scenario. And of course presented his case before VCAT in the most positive light possible, asking for minimal punishment. And then the member hearing the case gave him far less punishment than the minimal suggestion made by the LSC – the whole process was biased, from the beginning right through to the end.

I look forward to hearing from you soon and if I can be of any further assistance I would be happy to oblige.

Yours Sincerely

Diarmuid Hannigan

Reply from Consumer Affairs Victoria

consumer reply may 15 2013

consumer reply may 15 2013 pg2

 

Reply from Consumer Affairs Victoria

consumer reply june 13 2013

Reply 23 06 2016 to       Consumer Affairs Victoria. 

Diarmuid Hannigan                                                                                         236 Smith StreetCollingwood. Victoria 3066                                               94195044 charada@mira,net

Sunday 23rd of June 2013

To Evelyn Vattivelu                                                                                            Department of Justice                                                                       Consumer Affairs Victoria.

Dear Evelyn

CONSUMER COMPLAINT (CASE NUMBER: C2013/06/2013/004951)

I refer to your response 13 06 2013.

You are in receipt of the extensive correspondence and have acknowledged the seriousness of the allegations.

A copy of a letter dated 15 05 2013 is in your possession from the Office of the Minister for Consumer Affairs that states:

“Please be assured that Lawyers and law firms are required to comply with Australian Consumer Law. “

Hence I assume lawyers or law firms are not allowed to engage in misleading and deceptive conduct, unconscionable conduct or empowerment unfairly in a contract, all of which I have alleged towards Russell Kennedy and for which I have provided as much conclusive evidence that is at my disposal, the file being closely guarded by the Melbourne law firm Russell Kennedy.

A copy of letters contained in file LSC RESPONSES Dated 20 02 2013 is in your possession from the Legal Services Commissioner that state that:

“Under the Legal Professional Act 2004, “I can only investigate individual lawyers, not law firms.”

Also a letter dated 30 03 2012 from the Legal Services Commissioner that states that:

 “Whilst you continue to raise the issue of the conduct of various practitioners at the Melbourne law firm Russell Kennedy at the time of your mother’s death, I am unable to deal with this aspect as it does not amount to professional misconduct. “

Based upon the statement from the Office of the Minister for Consumer Affairs:  “Please be assured that Lawyers and law firms are required to comply with Australian Consumer Law”, and the statement from the LSC: “Under the Legal Professional Act 2004, I can only investigate individual lawyers, not law firms.”

The current complaint falls under the jurisdiction of CAV and not the LSC as you have stated.

Since that is the case and I trust you will concur that it then becomes a matter for CAV to deal with.

During this whole process my mother and her final wishes and her children have never been awarded their consumer rights. When attempting to communicate their concerns directly with the Melbourne law firm Russell Kennedy they were met with bills of five hundred dollars per hour for their efforts. This made communication a punishment and a denial of their consumer rights. When they complained to the Victorian Legal Services Commissioner  they were never given the right to any form a non-binding conciliatory service.

Since the nature of the allegations are so serious, as they reach into the inner core of the values upon which our society is based; that is one of maintaining the healthy development of family structure, when coupled with the extensive communications that contain a substantial amount of evidence to support the allegations, I would suggest that it is in the interests of and the consumer rights of every Australian family to have this matter properly investigated.

I gather the first step in the process is to participate voluntarily in a non-binding conciliatory process.

In your response you have stated: “Consumer Affairs Victoria assesses complaints received against our conciliation policy and offer a free, non-binding conciliatory service. Bases upon the extensive correspondence provided relating to this complaint, and the serious of the allegations, it appears that this matter is not reasonably likely to be settled utilising the non-binding conciliation service offered by CAV. CAV cannot offer further assistance.”

In light of the above I would appreciate it if you would review your position and attempt to facilitate a free voluntary conciliation between my mother`s family and the Melbourne law firm Russell Kennedy.

The matters raised  need to be resolved so as my mother`s family can know their own mothers true wishes in order to begin to heal the wounds that have been inflicted upon them by whom the allegations are made.  Damage I may add that will impact upon the family to the ends of time.

Yours Sincerely

Diarmuid Hannigan

 

Letter to Tim Sherry Consumer Affairs Victoria

Sunday 7th of July 2013

Diarmuid Hannigan                                                                                         236 Smith StreetCollingwood. Victoria 3066                                               94195044 charada@mira,net

To Tim Sherry                                                                                                     Senior Evaluation and Response Officer                                                       Consumer Affairs Victoria

Dear Tim

Thank you for your reply.

I need to clarify to you certain points in your response that simply not true.

I refer to paragraph four.

I first raised my concerns about the actions of Ian Bult of Russell Kennedy Solicitors in March 2005 with the Law Institute of Victoria. These concerns were not investigated by the Law Institute of Victoria as they stated that since my concerns related to an executor they advised it was a matter for the Supreme Court.

I again raised my concerns with The Victorian Legal Services Commissioner in 2009. The concerns were related to the Abuse of Human Rights by the lawyer Ian Bult. I was informed by the Victorian Legal Services Commissioner that lawyers in private practice are not bound by the Charter Of Human Rights and Responsibilities

In 2010 I received the much sort after letter from the new trustee Paul Gleeson. The letter dated 30 10 1998 from my late mother to Ian Bult of Russell Kennedy Solicitors.

This was the letter in which Ian Bult stated he had the proof that my mother wished me to be treated differently from my siblings, the letter he refused to reveal to my sister, the family nominated executor.  Since the letter does not contain any reasons from my mother that I should be treated differently from my other siblings, Ian Bult of Russell Kennedy lied.

I raised my concerns with the attorney general and was informed that the Victorian Legal Services Commissioner could reopen a file if there was new evidence. Hence I again approached the Victorian Legal Services Commissioner with my concerns based upon the new evidence. These concerns were now of a far more serious nature and did involve misleading and deceptive conduct, unconscionable conduct and unfair empowerment in a contract.

The Victorian Legal Services Commissioner decided to reject the new evidence and when asked his reasons, he was unable to give any; He did not carry out an investigation. The letter from the Victorian Legal Services Commissioner dated 25 January 2012 proves there was no investigation.

In paragraph six you state that my allegations have been investigated by the Victorian Legal Services Commissioner.

Never have any allegations I have made towards Russell Kennedy or Ian Bult been investigated by the Victorian Legal Services Commissioner. The following is a definition of the word investigate, for your reference.

Investigate

Carry out a systematic or formal inquiry to discover and examine the facts of (an incident, allegation, etc.) so as to establish the truth.

In Paragraphs 3 you state there is no breach of the legislation and in paragraph 7 you state “I have assessed the allegations that you have made regarding the alleged misleading and deceptive conduct of the lawyer and the law firm in question. In this instance there does not appear to be a breach of the legislation administered by CAV.

It is interesting that you have not assessed my allegations in regard to unconscionable conduct and unfair empowerment in a contract?

Never the less apart from conducting an investigation of which I assume a voluntary meeting to mediate the differences between parties is just part of a process I fail to understand how you have come to your conclusion, because essentially you are stating that:

  • A lawyer, executor, law firm can breach their fiduciary duty to the deceased by lying about the wishes of the deceased and intimidating and bullying the deceased nominated family member from her role as executor in order make more money in fees and charges knowing full well the extent of damage they are causing to the long term cohesion of the deceased family and to the overall value of the estate without fearing regulatory interference.
  • Consumer Affairs Victoria is fearful and intimidated by the prospect of engaging with a law firm.

I believe it is essential that our government regulators always perform to the highest standards and protect the rights of Australian citizens, in this matter the consumer rights of my late mother and her family. These rights were bestowed upon us by our democratically elected parliament in 1974 via the Trade Practices Act and from what I can understand us as individuals own those rights and as yet Consumer Affairs Victoria and the LSC refuse to acknowledge their existence within my mother’s family.

I find this deeply concerning, particularly when it comes to CAV as they are the body whose purpose it is to acknowledge and protect those rights. I realise that what I am requesting is no easy task and it would be far more convenient to shirk from the challenge. Unfortunately our legal system has come to a point of crisis and the regulators who work in the public interest must react.

Again I request that you review your position and at least attempt to begin a formal process of conciliation between my mother’s family and the Melbourne law firm Russell Kennedy. I would be more than willing to meet with you in person to discuss this matter in detail.

Yours Sincerely

Diarmuid Hannigan

Reply from Consumer Affairs Victoria

consumer reply july 18 2013 pg1

consumer reply july 18 2013 pg2

 

Letter to Tim Sherry Consumer Affairs Victoria

Friday 9th of August 2013

Diarmuid Hannigan                                                                                         236 Smith StreetCollingwood. Victoria 3066                                               94195044 charada@mira,net

To Tim Sherry                                                                                                     Senior Evaluation and Response officer                                                       Consumer Affairs Victoria

Dear Tim

Thank you for your reply.

I need to clarify certain points in your response that are simply not true.

I refer to paragraph four.

I first raised my concerns about the actions of Ian Bult of Russell Kennedy Solicitors in March 2005 with the Law Institute of Victoria. These concerns were not investigated by the Law Institute of Victoria as they stated that since my concerns related to an executor they advised it was a matter for the Supreme Court.

I again raised my concerns with The Victorian Legal Services Commissioner in 2009. The concerns were related to the abuse of Human Rights by the lawyer Ian Bult. I was informed by the Victorian Legal Services Commissioner that lawyers in private practice are not bound by the Charter Of Human Rights and Responsibilities

In 2010 I received the much sort after letter from the new trustee Paul Gleeson. The letter dated 30 10 1998 from my late mother to Ian Bult of Russell Kennedy Solicitors.

This was the letter in which Ian Bult stated he had the proof that my mother wished me to be treated differently from my siblings, the letter he refused to reveal to my sister, the family nominated executor.  Since the letter does not contain any reasons from my mother that I should be treated differently from my other siblings, Ian Bult of Russell Kennedy lied.

I raised my concerns with the Attorney General and was informed that the Legal Services Commissioner could reopen a file if there was new evidence. Hence I again approached the Victorian Legal Services Commissioner with my concerns based upon the new evidence. These concerns were now of a far more serious nature and did involve misleading and deceptive conduct, unconscionable conduct and unfair empowerment in a contract.

The Victorian Legal Services Commissioner decided to reject the new evidence and when asked his reasons, he was unable to give any. He did not carry out an investigation. The letter from the Victorian Legal Services Commissioner dated 25 January 2012 proves there was no investigation.

In paragraph six you state that my allegations have been investigated by the LSC.

 Never have any allegations I have made towards Russell Kennedy or Ian Bult been investigated by the Victorian Legal Services Commissioner. The following is a definition of the word investigate, for your reference.

Investigate

Carry out a systematic or formal inquiry to discover and examine the facts of (an incident, allegation, etc.) so as to establish the truth.

In Paragraph 3 you state: “There is no breach of the legislation” and in paragraph 7 you state: “I have assessed the allegations that you have made regarding the alleged misleading and deceptive conduct of the lawyer and the law firm in question. In this instance there does not appear to be a breach of the legislation administered by CAV.”

It is interesting that you have not assessed my allegations in regard to unconscionable conduct and unfair empowerment in a contract?

Nevertheless apart from conducting an investigation, of which I assume a voluntary meeting to mediate the differences between parties is just part of a process, I fail to understand how you have come to your conclusion when the evidence presented to you is conclusive.

Essentially you are stating that:

  • A lawyer, executor, law firm can breach their fiduciary duty to the deceased by lying about the wishes of the deceased and intimidating and bullying the deceased`s nominated family member from her role as executor in order to make more money in fees and charges. Knowing full well the extent of damage they are causing to the long term cohesion of the deceased`s family and to the overall value of the estate without any fear of regulatory intervention.
  • Consumer Affairs Victoria is fearful and intimidated by the prospect of engaging with a law firm.

I believe it is essential that our government regulators always perform to the highest standards and protect the rights of Australian citizens, in this matter the consumer rights of my late mother and her family. These rights were bestowed upon us by our democratically elected parliament in 1974 via the Trade Practices Act and from what I can understand, we as individuals own those rights and as yet Consumer Affairs Victoria and the LSC refuse to acknowledge their existence within my mother’s family.

I find this deeply concerning, particularly when it comes to CAV as they are the body whose purpose it is to acknowledge and protect those rights.

I realise that what I am requesting is no easy task and it would be far more convenient to shirk from the challenge. Unfortunately our legal system has come to a point of crisis and the regulators who work in the public interest must react.

Again I request that you review your position and at least attempt to begin a formal process of conciliation between my mother’s family and the law firm Russell Kennedy. I would be more than willing to meet with you in person to discuss this matter in detail.

Yours Sincerely

Diarmuid Hannigan

Reply from Consumer Affairs Victoria

consumer reply september 3 2013

 

To The Minister for     Consumer Affairs

Saturday 12th of October 2013

Diarmuid Hannigan                                                                                         236 Smith StreetCollingwood. Victoria 3066                                               94195044 charada@mira,net

To The Minister for Consumer Affairs

The Hon Heidi Victoria

Dear  Heidi.

Thank you for responding to my email of 20 04 2013 and for reassuring me that lawyers and law firms, are required to comply with Australian Consumer Law.

Since my disagreement with the Melbourne law firm Russell Kennedy solicitors had not been investigated under Australian Consumer Law or The Trade Practises Act 1974 I decided to put your reassurance to the test.

I submitted a complaint to Consumer Affairs Victoria against the Melbourne law firm Russell Kennedy for misleading and deceptive conduct, unconscionable conduct and unfair empowerment in a contract. The complaint is accompanied by evidence that clearly shows that the Melbourne law firm Russell Kennedy was deceptive and dishonest when communicating to my mother`s children about her final wishes. The matter shows how a law firm can use excuses so as to drive a deceased estate into litigation and plunder it through excessive fees and charges. In the case of my mother’s estate the actions of the Melbourne law firm Russell Kennedy created $70,000 in unnecessary legal fees for themselves, sold a unit at $30,000 under market value, failed to collect rent on that unit of another $30,000, lost a further $80,000 by gambling some of the money on the stock market and destroyed the interpersonal relationships of my mother`s children.

I have enclosed correspondence between myself and Consumer Affairs Victoria to you so as to show you, that even though lawyers and law firms are required to comply with Australian Consumer Law, the regulators who are responsible for ensuring they do comply, are failing to act.

The response by Consumer Affairs Victoria to my letter of 09 08 2013 carries no explanation whatsoever as to why they will not even begin the investigative process by initiating mediation.

It appears to me that the culture of hubris that I first encountered at Russell Kennedy extends into The Law Institute of Victoria and from there, has now infected the Office of The Victorian Legal Services Commissioner, The Victorian Ombudsman`s office and finally Consumer Affairs Victoria.

The legal professions` ability to subvert their obligations to consumers of their services under the Trade Practices Act 1974, by developing their own separate state acts to regulate lawyers, which turns consumers into clients who have no consumer rights, was the first step in the perversion of the course of justice.

Whilst all other providers of goods or services incorporated quality standards and accountability into their culture as a result of their customers having consumer rights, the legal profession remained stagnant. The incorporation of these quality systems into modern day business practice has benefited business and consumers alike. It has provided better quality at a lower cost, unlike the services provided by the legal profession, which is unaffordable to the average Australian and accompanied by a dearth of unaccountability and transparency.

Thousands of Australian families are forced to use the services of this profession every year and many loose large chunks of their family wealth. I gather lawyers like houses! A profession that is fourty years out of date and does not comply with Australian Federal Law and who have a very close relationship with the regulators, a relationship that is far closer than the average Australian consumer has with the same regulator.

The Trade Practices Act of 1974 was a visionary piece of legislation that set the agenda for business and social development in Australia by bestowing consumer rights upon its citizens. It has set the agenda for how businesses interact with one another and how they interact with their customer base. Having the legal profession, (a profession that is as essential for the health of our society as the blood running through our veins) left out of the developmental process through their own self-interest is a crime against the progress of Australia and its people.

Australia is no longer a land run by a privileged few where the inhabitants have few rights and families do not exist, it is now a multicultural nation made up of families and it is imperative that our legal profession is held accountable for the services they provide to these families.

The failure of the legal regulators to ensure that lawyers and law firms are accountable to the Trade Practices Act and to Australian Consumer Law has seen many a family lose their home and has seen many a family torn apart due to lawyer self-interest. If this is not a perversion of the course of justice then I ask you what is.

The inability of the regulators of the Legal Profession in Victoria to address my mother’s family`s situation is a perfect example of how the regulators are failing the consumers of the services of the legal profession. In the matter of my mother’s estate, it is clear that Ian Bult of Russell Kennedy, lied about my mother`s wishes and hid the evidence in order to plunder her estate, by forcing a disagreement of his own making, into litigation. The softest term for this type of behaviour is professional misconduct. A more accurate description is misleading and deceptive conduct, incorporating unconscionable conduct, accompanied by using his position of power to unfairly dominate the contract, at the expense and damage to my mother’s family. In fact when you are aware that the Melbourne law firm Russell Kennedy is renown for this type of partisan culture among the legal establishment of Melbourne you have to question why this is not a criminal act.

For the Victorian Legal Services Commissioner, the agent of Consumer Affairs Victoria, to be given credence in this matter by Consumer Affairs Victoria, particularly after the own motion report by the Victorian Ombudsman on this office which was initiated after receiving 95 complaints from the public in one year, put forward 28 recommendations identifying its failings, is an attempt to defy common reason.

Please refer below Pg. 17 (Ombudsman`s report on the LSC.) which was submitted to The Attorney General Robert Hulls in 2009 but has never been tabled to parliament. I would say that in the interests of Victorian Consumers the minister for Consumer Affairs should request the Attorney General to table that report so as it is made public.

From my own investigations it appears as if the current state regulators of lawyers, The Legal Service Commissioner, The Victorian Ombudsman and Consumer Affairs Victoria have lowered the moral bar to a level whereby it is acceptable behaviour for a lawyer to provide misleading information to the children of the deceased about their final wishes and to conceal that evidence from the deceased`s own family nominated executor so as to create a dispute from which the lawyer can generate tens of thousands of dollars in fees and charges whilst simultaneously destroying the family.

To turn a blind eye to these issues will only continue to impede the development of this country into the great nation we need to become, a nation that has an accountable legal system that gains the trust of our community by operating with transparent standards, that is efficient, accurate and affordable to all Australians.

I am asking you to have your department reconsider their position, and begin the process of investigation by arranging a non-binding mediation meeting between my mother`s family and the Melbourne law firm Russell Kennedy.

I look forward to your reply.

Yours Sincerely

Diarmuid Hannigan.

Reply from Consumer Affairs Victoria

consumer reply october 3 2013

Reply from Consumer Affairs Victoria

consumer reply November 22 2013 pg

To The Minister for     Consumer Affairs

Sunday 26th of January 2014

Diarmuid Hannigan                                                                                         236 Smith StreetCollingwood. Victoria 3066                                               94195044 charada@mira,net

Sunday 26th of January 2014

To The Minister for Consumer Affairs

The Hon Heidi Victoria

Dear  Heidi.

I have received a response to my letter of 12 10 2013 dated 22 11 13 Please refer attachment (Consumer Affairs reply 7).

It appears as if we have not progressed and have arrived at the same position on a rather withered mulberry bush.

The response states that: “As advised in previous correspondence, Consumer Affairs Victoria (CAV) has assessed your complaint and the dispute as not reasonably likely to be settled using the voluntary, non-binding conciliation service offered by CAV, In line with our Compliance and Enforcement Policy.” Please refer attachment (Compliance and enforcement policy.doc)

The matter at hand is a very serious breach of trust by a law firm whose members, who are named in the Supreme Court files, have impeccable credentials and hold important positions that provide advice to the Victorian Government and influence the lives of many Victorians. Refer to the bottom of this letter.

For example.

The Melbourne law firm Russell Kennedy is the only law firm that is a member of Five Nominated Specialist Legal Panels; including Property and Personal Injury.

The Melbourne law firm Russell Kennedy is heavily involved in the residential retirement industry.

(f). The Solicitors who represent the owners or the Association (Retirement Villages Association) of the Owner’s in Victoria are dominated by the firm Russell Kennedy Pty Ltd. Russell Kennedy Pty Ltd sponsor conferences of the Association, lobby on the behalf of owners and the association and they are well thought of by their clients. They were, I would presume involved with the Government, in the drafting of the Act and Regulations. They have a dominant position and leave no stone unturned to maintain their position in what must be a key business key segment for them.

Refer Letter by John V. Plunkett AM. To Principal Legal Policy Adviser, Policy & Legislation Branch, Consumer Affairs Victoria.        16 December 2011 Refer attachment John Plunket.

  1. Michael Gorton AM

Experience

  • Acting for a range of public and private companies and businesses and for a number of government and non-government organisations
  • Advising and acting for the health sector, including in relation to the regulation of health professionals, complaint handling (AHPRA/Health Services Commissioner), advising on medico-legal issues and other administrative and regulatory claims
  • Chairing the Expert Panel to review the Health Services Commissioner’s legislation and has written extensively on medico-legal matters

Leadership

  • Member, Order of Australia
  • Board Member, Melbourne Health (Royal Melbourne Hospital)
  • Board Member, Australian Health Practitioner Regulation Agency
  • President, International Alliance of Law Firms
  • Chair, Patient Review Panel – Department of Health, Victoria
  • Recognised by Best Lawyers as 2013 Best Lawyer for Health and Aged Care Law in Victoria
  1. John Corcoran

Experience

  • Over 25 years experience advising owners of retirement villages, aged care providers and peak industry bodies in relation to structuring, redevelopments, sales and purchases, resident agreements and lobbying government
  • Advising corporate, private and not-for-profit operators on regulatory compliance and corporate governance.

Leadership

  • Board Member, Mercy Health and Aged
  • Board Member, Legal Practitioner’s Liability Committee
  • Board Member, Legal Services Board (2013 and 2005-2010)
  • Named Best Lawyers’ 2013 “Lawyer of the Year” and recognised in 2012 for expertise in Retirement Villages and Senior Living Law
  • Board Member, International Bar Association (2008-2012)
  • President, Law Council of Australia (2009)
  • President, Law Institute of Victoria (2001-2002)

3.      Rosemary Southgate

Leadership

  • Victorian Retirement Living Committee member, Property Council of Australia
  • Recognised by Best Lawyers’ 2012 and 2013 for expertise in Retirement Villages and Senior Living Law

As you can see the members of Russell Kennedy are a highly influential group.

Mr Phil D`Adamo the Acting Director of Consumer Affairs Victoria has an interpretation of  CAV`S Compliance and Enforcement Policy threshold that beggars belief as he states:

“your matter does not meet CAV`S Compliance and Enforcement Policy threshold.”

My “matter” concerns a law firm who were placed into the highest position of trust who lied to my mother’s children about the contents of a letter regarding her final wishes to her children in order to gain extra fees from a deceased estate by creating a dispute within her family. Then concealed that letter from my mother’s daughter, her family nominated executor, by claiming it to be privileged information whilst their resident wills expert, Arthur Bolkas, who was supposed to be representing both the law firms representative, Ian Bult and my sister, did nothing to inform one of his clients (my sister), that the member of the law firm (Ian Bult), was lying to her and then became involved in concealing the evidence, clearly a case of obtaining financial gain through deception, which is a criminal act.

Mr Phil D`Adamo the Acting Director of Consumer Affairs Victoria has stated: “that my matter does not meet CAV`S Compliance and Enforcement Policy threshold.”

As my matter breaches two Victorian Acts, I am surprised that my matter does not meet CAV`S Compliance and Enforcement Policy threshold.

The two acts are as follows:

Administration and Probate Act 1958 (Vic) provides:338

66 Concealment of will a misdemeanour

(1) Every person who retains or conceals or endeavours to retain or conceal any will or codicil or aids or abets any person in such retention or concealment with intent to defraud any person interested under such will or codicil, shall be guilty of an indictable offence; and shall be liable to a fine of not more than 100 penalty units or to imprisonment for a term of not more than two years or to both fine and imprisonment; and shall also be liable to a proceeding for damages at the suit of the persons defrauded or those claiming under them for any loss sustained by them or any of them in consequence of such retention or concealment.

(2) No prosecution for any such offence shall be commenced without the sanction of a law officer; and no such sanction shall be given unless officer directs has been given to the person for whose prosecution such sanction is sought. (emphasis added)

CRIMES ACT 1958 – SECT 86

Suppression etc. of documents

  1. 86(1)amended by Nos 9576 s. 11(1), 49/1991 s. 119(1) 
    (Sch. 2 item 33), 48/1997 
    s. 60(1)(Sch. 1item 64).

(1) A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, destroys, defaces or conceals any valuable security, any will or other testamentary document or any original document of or belonging to, or filed or deposited in, any court of justice or any government department is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

  1. 86(2)amended by Nos 9576 s. 11(1), 49/1991 s. 119(1) 
    (Sch. 2 item 46), 48/1997 
    s. 60(1)(Sch. 1item 64).

(2) A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, by any deception procures the execution of avaluable security is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) and this subsection shall apply in relation to the making, acceptance, indorsement, alteration, cancellation or destruction in whole or in part of a valuable security, and in relation to the signing or sealing of any paper or other material in order that it may be made or converted into, or used or dealt with as, a valuable security, as if that were the execution of a valuable security.

(3) For purposes of this section “deception” has the same meaning as in section 81, and “valuable security” means any document creating, transferring, surrendering or releasing any right to, in or over property, or authorizing the payment of money or delivery of any property, or evidencing the creation, transfer, surrender or release of any such right, or the payment of money or delivery of any property, or the satisfaction of any obligation.

I therefore ask you why it is that CAV`S Compliance and Enforcement Policy threshold is not met when a law firm (with influence) engages in obtaining financial gain through deception and also breaches two acts of parliament where criminal codes do apply and the investigating authorities to whom this matter has been referred to have not acted upon this matter or referred it for criminal investigation.

Not to mention the lesser of the two evils; engaging in misleading and deceptive conduct, incorporating unconscionable conduct, accompanied by using his position of power to unfairly dominate the contract.

Which has destroyed the intra family relationships and damaged the financial well-being of my mother’s family for ever?

Clearly a cultural problem exists within the state of Victoria when the interests of a family are neglected by those authorities that our democratically elected governments have created for the protection of the public. That is:

The Legal Services Board

The Victorian Legal Ombudsman

The Victorian Legal Services Commissioner

The Victorian Ombudsman

Consumer Affairs Victoria

In favour of an influential law firm due to the way these authorities interpret the law and because of the way the laws they interpret have been written. These laws and their interpretation are bereft of family input and emanate from the culture of a prison and not from a civilised national culture, which recognises that family is the fundamental building block of our society.

The Review of our Succession Law Report published by the Victorian Law reform Commission states that the Victorian Legal Services Commissioner does not have the authority to investigate Lawyers who act as executors under the current provisions of the Legal Services Act 2004 and has recommended, that lawyers who are acting as executors, should be incorporated into the legal professional act, which would allow the Victorian Legal Services Commissioner to investigate complaints by beneficiaries against their behaviour.

The Review of our Succession Law Report published by the Victorian Law reform Commission also states:

7.32 Although the Legal Profession Act imposes obligations on legal practitioners when providing legal services, and avenues for resolving disputes and complaints, the Australian Consumer Law also applies to the legal services they provide.26 However, it is not clear that a beneficiary would have standing to make a complaint about legal costs charged to the estate, as the estate—not the beneficiaries—is liable to pay. In any event, it is likely that any conduct that contravenes the customer service guarantees under the Australian Consumer Law will be behaviour for which the legal practitioner can be disciplined under the Legal Profession Act as well.

This statement is an oxymoron on two fronts.

The will writer when alive bequeaths an amount to a beneficiary. When the will writer has died the beneficiary receives the amount of the bequest less the legal fees. Since the will writer has died they cannot make a complaint. Therefore the will makers consumer rights form part of the bequest and are transferred to the beneficiary who can make a complaint on behalf of the person who has died.

“It is likely that any conduct that contravenes the customer service guarantees under the Australian Consumer Law will be behaviour for which the legal practitioner can be disciplined under the Legal Profession Act as well”, will never be investigated by the Victorian Legal Services Commissioner because as previously stated the commissioner does not have the power to investigate complaints against lawyers who are acting as executors.

One of the main reasons CVA has refused to commence a mediation process between myself and the Melbourne law firm Russell Kennedy is because my complaint has already been investigated by the Victorian Legal Services Commissioner who has informed me that it does not have the authority to deal with lawyers who are executors because they are executors and are not bound by the Legal Professional Act, which means my complaint has never been investigated by the Victorian Legal Services Commissioner.

Since the Victorian Legal Services Commissioner is acting as an agent for CVA and cannot investigate a complaint against a lawyer executor it then must fall back upon CVA to do the investigation.

Mr Phil D`Adamo the Acting Director of Consumer Affairs Victoria has stated that I could refer the matter to VCAT for a determination.

Please could you be specific about what sort of determination has he in mind. I do question the logic behind this statement as I would have thought that CVA being far better resourced than this impoverished individual would be better suited to bring the matter to VCAT for a determination. The determination of course being, does CVA have the authority to investigate Lawyers who act as executors under Australian Consumer Law and under the Trade Practices Act of 1974.

Hence I again request that your department review their decision and assist by arranging mediation with the law firm Russell Kennedy.

Yours Sincerely

Diarmuid Hannigan.

Response from the Director of Consumer Affairs Victoria Claire Noone.

consumer reply 20th March 2014 pg1

To The Minister for     Consumer Affairs

Saturday 10th of May  2014

Diarmuid Hannigan                                                                                         236 Smith StreetCollingwood. Victoria 3066                                               94195044 charada@mira,net

To The Minister for Consumer Affairs

The Hon Heidi Victoria

Dear  Heidi.

I am responding to the response I have received from Dr Claire Noone Director Consumer Affairs Victoria to my letter of 26th January 2014.

I must point out three serious flaws within the response which point to a serious manipulation of my communications. The word dispute occurs on three occasions in this correspondence. Please allow me to reiterate.

  1. I do not have a dispute, I do have concerns and I would appreciate a response to those concerns. In Particular,

Mr Phil D`Adamo the Acting Director of Consumer Affairs Victoria has an interpretation of  CAV`S Compliance and Enforcement Policy threshold that beggars belief as he states:

“your matter does not meet CAV`S Compliance and Enforcement Policy threshold.”

My “matter” concerns a law firm who were placed into the highest position of trust who lied to my mother’s children about the contents of a letter regarding her final wishes to her children in order to gain extra fees from a deceased estate by creating a dispute within her family. Then concealed that letter from my mother’s daughter, her family nominated executor, by claiming it to be privileged information whilst their resident wills expert, Arthur Bolkas, who was supposed to be representing both the law firms representative, Ian Bult and my sister, did nothing to inform one of his clients (my sister), that the member of the law firm (Ian Bult), was lying to her and then became involved in concealing the evidence, clearly a case of obtaining financial gain through deception, which is a criminal act.

Mr Phil D`Adamo the Acting Director of Consumer Affairs Victoria has stated: “that my matter does not meet CAV`S Compliance and Enforcement Policy threshold.”

As my matter breaches two Victorian Acts, I am surprised that my matter does not meet CAV`S Compliance and Enforcement Policy threshold.

The two acts are as follows:

Administration and Probate Act 1958 (Vic) provides:338

66 Concealment of will a misdemeanour

(1) Every person who retains or conceals or endeavors to retain or conceal any will or codicil or aids or abets any person in such retention or concealment with intent to defraud any person interested under such will or codicil, shall be guilty of an indictable offence; and shall be liable to a fine of not more than 100 penalty units or to imprisonment for a term of not more than two years or to both fine and imprisonment; and shall also be liable to a proceeding for damages at the suit of the persons defrauded or those claiming under them for any loss sustained by them or any of them in consequence of such retention or concealment.

(2) No prosecution for any such offence shall be commenced without the sanction of a law officer; and no such sanction shall be given unless officer directs has been given to the person for whose prosecution such sanction is sought. (emphasis added)

CRIMES ACT 1958 – SECT 86

Suppression etc. of documents

  1. 86(1)amended by Nos 9576 s. 11(1), 49/1991 s. 119(1) 
    (Sch. 2 item 33), 48/1997 s. 60(1)(Sch. 1item 64).

    (1)     A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, destroys, defaces or conceals any valuable security, any will or other testamentary document or any original document of or belonging to, or filed or deposited in, any court of justice or any government department is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

  1. 86(2)amended by Nos 9576 s. 11(1), 49/1991 s. 119(1) 
    (Sch. 2 item 46), 48/1997 s. 60(1)(Sch. 1item 64).

    (2)     A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, by any deception procures the execution of avaluable security is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) and this subsection shall apply in relation to the making, acceptance, indorsement, alteration, cancellation or destruction in whole or in part of a valuable security, and in relation to the signing or sealing of any paper or other material in order that it may be made or converted into, or used or dealt with as, a valuable security, as if that were the execution of a valuable security.

    (3)     For purposes of this section “deception” has the same meaning as in section 81, and “valuable security” means any document creating, transferring, surrendering or releasing any right to, in or over property, or authorizing the payment of money or delivery of any property, or evidencing the creation, transfer, surrender or release of any such right, or the payment of money or delivery of any property, or the satisfaction of any obligation.

I therefore ask you why it is that CAV`S Compliance and Enforcement Policy threshold is not met when a law firm (with influence) engages in obtaining financial gain through deception and also breaches two acts of parliament where criminal codes do apply and the investigating authorities to whom this matter has been referred to have not acted upon this matter or referred it for criminal investigation.

Not to mention the lesser of the two evils; engaging in misleading and deceptive conduct, incorporating unconscionable conduct, accompanied by using his position of power to unfairly dominate the contract.

Which has destroyed the intra family relationships and damaged the financial wellbeing of my mother’s family for ever?

Clearly a cultural problem exists within the state of Victoria when the interests of a family are neglected by those authorities that our democratically elected governments have created for the protection of the public. That is:

The Legal Services Board

The Victorian Legal Ombudsman

Victorian Legal Services Commissioner

The Victorian Ombudsman

Consumer Affairs Victoria

In favour of an influential law firm due to the way these authorities interpret the law and because of the way the laws they interpret have been written. These laws and their interpretation are bereft of family input and emanate from the culture of a prison and not from a civilised national culture, which recognises that family is the fundamental building block of our society.

The Review of our Succession Law Report published by the Victorian Law reform Commission states that the Victorian Legal Services Commissioner does not have the authority to investigate Lawyers who act as executors under the current provisions of the Legal Services Act 2004 and has recommended, that lawyers who are acting as executors, should be incorporated into the legal professional act, which would allow the Legal Services Commissioner to investigate complaints by beneficiaries against their behaviour.

The Review of our Succession Law Report published by the Victorian Law reform Commission also states:

7.32 Although the Legal Profession Act imposes obligations on legal practitioners when providing legal services, and avenues for resolving disputes and complaints, the Australian Consumer Law also applies to the legal services they provide.26 However, it is not clear that a beneficiary would have standing to make a complaint about legal costs charged to the estate, as the estate—not the beneficiaries—is liable to pay. In any event, it is likely that any conduct that contravenes the customer service guarantees under the Australian Consumer Law will be behaviour for which the legal practitioner can be disciplined under the Legal Profession Act as well.

This statement is an oxymoron on two fronts.

The will writer when alive bequeaths an amount to a beneficiary. When the will writer has died the beneficiary receives the amount of the bequest less the legal fees. Since the will writer has died they cannot make a complaint. Therefore the will makers consumer rights form part of the bequest and are transferred to the beneficiary who can make a complaint on behalf of the person who has died.

“It is likely that any conduct that contravenes the customer service guarantees under the Australian Consumer Law will be behaviour for which the legal practitioner can be disciplined under the Legal Profession Act as well”, will never be investigated by the Victorian Legal Services Commissioner because as previously stated the commissioner does not have the power to investigate complaints against lawyers who are acting as executors.

One of the main reasons CVA has refused to commence a mediation process between myself and Russell Kennedy is because my complaint has already been investigated by the Victorian Legal Services Commissioner who has informed me that it does not have the authority to deal with lawyers who are executors because they are executors and are not bound by the Legal Professional Act, which means my complaint has never been investigated by the Legal Services Commissioner.

Since the Victorian Legal Services Commissioner is acting as an agent for CVA and cannot investigate a complaint against a lawyer executor it then must fall back upon CVA to do the investigation.

Mr Phil D`Adamo the Acting Director of Consumer Affairs Victoria has stated that I could refer the matter to VCAT for a determination.

Please could you be specific about what sort of determination has he in mind. I do question the logic behind this statement as I would have thought that CVA being far better resourced than this impoverished individual would be better suited to bring the matter to VCAT for a determination. The determination of course being, does CVA have the authority to investigate Lawyers who act as executors under Australian Consumer Law and under the Trade Practices Act of 1974.

  1. In Dr Noon`s response she states:

“On the evidence and information available, CAV does not intend to investigate or take enforcement action under the Australian Consumer Law for misleading and deceptive conduct. The matter is a private dispute and does not give rise to wider detriment or a systemic issue.”

Either Dr Noon is not looking for a systemic issue or she has been told to be blind to it.

  • The issue was identified in Victorian Legal Services Commissioner Round Table Discussion on the management of deceased estates.
  • The issue shows up in the complaints made to the Victorian Legal Services Commissioner each year where complaints in regards to inheritance matters sit alongside the top three and are most likely shrouded by costs complaints which in many instances would involve deceased estates.
  • The issue has been highlighted in the terms of reference of the reform of our succession laws to the point that a separate section of discussion has been allocated to lawyers who act as executors.
  • If you are looking for other cases of Russell Kennedy`s gross negligence:
  • go to Senator John Madigan`s Speech Access to Justice Link http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansards%2F7f9c768e-cf09-4d07-a8ab-7c7e2f355ade%2F0184%22
  • Have a look at the role the Melbourne law firm Russell Kennedy played in the Brookland`s Green fiasco. I have attached my own synopsis of the Ombudsman`s report on The Brookland Greens disaster for you information.
  • The Brookland Green`s fiasco as a result of Russell Kennedy`s adversarial behaviour at VCAT has bought the integrity of the process of planning appeals in Victoria into disrepute. As it is obvious that if the VCAT member had been aware of the risks of an explosion, i.e. a threat to life, particularly in a family home where there are children: the member could not have made the decision to encroach upon the 200 meter exclusion zone designated by the city of Casey`s engineers.

If these five facts do not point to at least a smell of a systemic problem, I would hate to be the plumber.

Now that we have cleared up those two issues let us progress to the third.

Dr Noon`s response is simply a repeat of the last letter I received from Consumer Affairs Victoria which simply states We will not do anything and we refuse to be held to account, to the point whereby the organisation whose role it is to protect Consumer Rights refuses to communicate regarding very serious matters that impact on the jurisprudence of Australian Culture, This is none to apparent when viewing the fiasco that has been created by the law firm Coors Chambers and Westgarth when representing the Catholic Church which resulted in appalling judgement by a member of the judiciary that reflects upon us as a nation.

Ref Audio Link to Saturday extra ABC 

Listen closely to the broadcast and ask yourself. If the legal profession had embraced the Trade Practices act of 1974 into its day to day practice instead of getting the consumer affairs bodies in each state to direct complaints against lawyers to the relevant self-regulated lawyer bodies in each state whether or not the road for the Catholic Church would have been different and how much less harm would have occurred.

I assume that Consumer Affairs Victoria:

  • Is in close communication with the office of the legal Services Commissioner and is aware that it has the power to access these offices complaints files.
  • Has obtained access to the LSC`S files on complaints pertaining to deceased estates against lawyers and verified the claim that there is not a problem of systemic abuse by our legal fraternity in this area of law.
  • Has a copy of the own motion report by The Victorian Ombudsman on The Victorian Legal Services Commissioner as mentioned in his 2009 annual report pg 21 to 23. And can verify that they do have a copy of the own motion report made by the Victorian Ombudsman on the Victorian Legal Services Commissioner by making it available to the Victorian public.
  • I note that he makes 28 recommendations in his report I assume Consumer Affairs Victoria is monitoring those recommendations and will give us all an update of their progress and implementation.

The excuse used by Dr. Noone; that is voluntary mediation between the parties would fail is just a ploy to prevent the first stage of the investigative process from beginning, a ploy that exposes a bias by Dr Noone towards her legal brethren. The reason I state this fact is because: If Russell Kennedy were approached by Consumer Affairs Victoria to participate in voluntary mediation and they refused, they would then be in a position where they may well have to explain why they did not want to participate. The reason is obvious. The forum of voluntary mediation held by Consumer Affairs Victoria acknowledges that consumers have consumer rights and also that lawyers and law firms are bound by Australian Consumer Law. This forum disempowers a lawyer or a law firm as it is not a court, a court that disadvantages non-lawyers through expense and bias.

I leave you with my concerns and trust that Consumer Affairs Victoria can see sense and arrange a voluntary mediation between representatives of my mother’s family and Russell Kennedy so as Consumer Affairs Victoria can do its job instead of shirking its responsibilities to the Victorian Consumers of legal services.

Best Regards

Diarmuid Hannigan.

Consumer Affairs Victoria could not even arrange Mediation?

consumer reply july 18 2014 Request for mediation pg1

To The Minister for     Consumer Affairs

Saturday 26th of July 2014

Diarmuid Hannigan                                                                                         236 Smith StreetCollingwood. Victoria 3066                                               94195044 charada@mira,net

To The Minister for Consumer Affairs

The Hon Heidi Victoria

Dear  Heidi.

I have attached a response I received from CAV to my email to you sent on the 10th of May 2014.

I quote from the response:

“Reiterating previous advice, CAV has determined that due to:

  1. The basis of the complaint.
  2. The protracted nature of the complaint.
  3. The determination by CAV that the complaint has no likelihood of being settled

It is not appropriate to provide any dispute service.”

  1. Please explain the reasons for why CAV has determined that the basis of the complaint does not constitute misleading and deceptive conduct, unconscionable conduct and unfair empowerment in a contract that also breaches Section 86 of the Crimes Act 1958 and Section 66 of the Administration and Probate Act 1958.
  2. Please explain how CAV has determined that the protracted nature of the complaint can be used as an excuse for not providing its services, particularly when it was the Melbourne law firm Russell Kennedy who lied about the contents of the documents and concealed them up until late 2011 and it was the failure of CAV`S agent the LSC and the Law Institute of Victoria to properly investigate the complaint when concerns were first raised way back in 2005 by two members of my mother`s family.
  3. Please explain the process used by CAV to determine that if they were to facilitate mediation (which I gather is the first stage of a formal investigation) there would be no likely hood of settlement.

I gather that CAV has the power to request files from the LSC. I have very little doubt that if CAV were to perform their role and request the files held by the LSC in regards to complaints re this matter from the three members of my mother’s family who have raised their concerns to the LSC and were to attempt to get Russell Kennedy to the mediation table there is no doubt in my mind that the issues would be resolved.

I have no doubt at all that if CAV were to request the LSC to provide all complaint files held by that office against the law firm Russell Kennedy that the matter would be resolved in a very short period of time.

I have forwarded you a copy of a letter that I have sent to The Attorney General Robert Clark and a copy of the transcript to The Productivity Commissions public hearing held in Melbourne.

I trust this information will be helpful in developing a better legal system and in restoring consumer rights to the consumers of legal services in Victoria. I also trust that it will help facilitate a change of direction within the thinking of CAV and we can get on with facilitating mediation between my mother’s family and Russell Kennedy.

Yours Sincerely

Diarmuid Hannigan.

 

To The New Minister for     Consumer Affairs Jane Garrett

Diarmuid Hannigan

Diarmuid Hannigan                                                                                         236 Smith StreetCollingwood. Victoria 3066                                               94195044 charada@mira,net

Saturday 3rd of January 2015

To The Minister for Consumer Affairs

The Hon Jane Garret

Dear  Jane

Prior to ypu taking up your position as Minister for Consumer Affairs I was directing correspondence to the Hon Hiedi Victoria. I sent an email on 29 07 2014 which appears to have gone missing and have resent on 14 11 2014 via Annett Monforte prior to the change of government.

I am now sending the same correspondence to you as the current Minister for Consumer Affairs.

I will take this opportunity to refer you to the recent report released by the Productivity Commission headed Access to Justice in which the Commissioners state:

“Governing legislation needs to be amended to ensure that consumer protection is the explicit and primary objective of complaint bodies”

Refer Access to Justice. Productivity Commission Report Overview. pg 10

I have attached a response I received from CAV to my email to you sent on the 10th of May 2014.

I quote from the response:

“Reiterating previous advice, CAV has determined that due to:

  1. The basis of the complaint.
  2. The protracted nature of the complaint.
  3. The determination by CAV that the complaint has no likelihood of being settled

It is not appropriate to provide any dispute service.”

  1. Please explain the reasons for why CAV has determined that the basis of the complaint does not constitute misleading and deceptive conduct, unconscionable conduct and unfair empowerment in a contract that also breaches Section 86 of the Crimes Act 1958 and Section 66 of the Administration and Probate Act 1958.
  2. Please explain how CAV has determined that the protracted nature of the complaint can be used as an excuse for not providing its services, particularly when it was the Melbourne law firm Russell Kennedy who lied about the contents of the documents and concealed them up until late 2011 and it was the failure of CAV`S agent the LSC and the Law Institute of Victoria to properly investigate the complaint when concerns were first raised way back in 2005 by two members of my mother`s family.
  3. Please explain the process used by CAV to determine that if they were to facilitate mediation (which I gather is the first stage of a formal investigation) there would be no likely hood of settlement.

I gather that CAV has the power to request files from the LSC. I have very little doubt that if CAV were to perform their role and request the files held by the LSC in regards to complaints re this matter from the three members of my mother’s family who have raised their concerns to the LSC and were to attempt to get Russell Kennedy to the mediation table there is no doubt in my mind that the issues would be resolved.

I have no doubt at all that if CAV were to request the LSC to provide all complaint files held by that office against the Melbourne law firm Russell Kennedy that the matter would be resolved in a very short period of time.

I have forwarded you a copy of a letter that I have sent to The Attorney General Robert Clark and a copy of the transcript to The Productivity Commissions public hearing held in Melbourne.

I trust this information will be helpful in developing a better legal system and in restoring consumer rights to the consumers of legal services in Victoria. I also trust that it will help facilitate a change of direction within the thinking of CAV and we can get on with facilitating mediation between my mother’s family and Russell Kennedy.

Yours Sincerely

Diarmuid Hannigan.

Response from the Director of Consumer Affairs Victoria Claire Noone.

consumer reply december 2014 from Claire noone pg1

consumer reply december 2014 from Claire noone pg2

To The New Minister for     Consumer Affairs Jane Garrett

Saturday 10rd of January 2015

Diarmuid Hannigan                                                                                         236 Smith StreetCollingwood. Victoria 3066                                               94195044 charada@mira,net

To The Minister for Consumer Affairs

The Hon Jane Garret

Dear  Jane

I have received a response to my email sent to Heidi Victoria dated 29 07 2014 from Dr Claire Noone Director of Consumer Affairs. Copy attached.

We have an opportunity to change the culture of the primary complaint bodies so as consumer protection is their primary and explicit objective when dealing with complaints from consumers regarding the provision of services provided by the legal profession.

I refer to the second last Paragraph of Dr Clair Noone`s letter. Where she states:

“CAV does not intend to investigate or take enforcement action against Russell Kennedy as irrespective of the outcome, various independent statutory bodies, such as the Legal Services Commissioner, the Law Institute of Victoria and the Victorian Ombudsman have already considered your complaint.”

Consumer Affairs Victoria are stating that they have no intention to investigate since the Legal Services Commissioner, the Law Institute of Victoria and the Victorian Ombudsman have already done so.  Those bodies did not assess against Australian Consumer Law, the Trade Practices Act and the rights of consumers.  They merely assessed against the solicitor/client regime described by the Legal Professional Act. This regime did not investigate.

They simply stated that:

 Lawyers who are executors are not bound by the Legal Professional act of 2004 as they are not acting as lawyers. This means since they are providing a service which means they are covered by CPA, TPA, FT Act and are not allowed to engage in misleading and deceptive conduct.

This indesire to investigate on that basis is where CAV is neglecting its duty in breach of the ACL which empowers the CAV via the “ACL & FT Act (Vic)”.

Dr Claire Noone does not deny there is a basis for the complaint under the Fair Trading Act, she only states that she has decided not to go to the first stage of an investigation by facilitating a voluntary mediation, this refusal to conduct an inquiry because she has already determined the outcome is inconsistent with the role of the entity whose purpose, is to protect the rights of consumers.

The letter written by Dr Noone requires some clarification.                     My complaint relates to issues that originated in 2004 that were initiated by Ian Bult of Russell. I raised my concerns regarding the behaviour of Ian Bult to the Law Institute of Victoria in 2005. These concerns did not relate to consumer law and I was informed on that occasion that lawyers who act as executors are not acting as lawyers and are not bound by the Legal Professional Act.

I referred the matter to the Legal Services Commissioner in2009 on the grounds that Ian Bult had contravened the Victorian Charter of Human Rights. I was informed that lawyers in private practice are not bound by the Victorian Charter of Human Rights.

It was only in 2011 when Ian Bult resigned as trustee and appointed Paul Gleeson that the letter that Ian Bult had been concealing appeared in my mail box, sent to me by Paul Gleeson after repeated requests.

This letter proves that Ian Bult of Russell Kennedy engaged in misleading and deceptive conduct. I then referred the matter back to the Legal Services Commissioner with the new evidence, which refused to act and refused to give reasons for his inaction apart from stating that the matter had already been investigated.

I then raised my concerns with the Victorian Ombudsman who did not act. This process consumed most of 2012 and it was not until 2013 that I raised the matter with CAV as a consumer complaint pertaining to misleading and deceptive conduct.

I would like to correct Dr Noone`s statement which infers that the complaint is not current. Since the information to place the complaint was permitted to be hidden due to the actions of Russell Kennedy and the inactions of the legal regulator and only appeared in my possession in late 2011, was first raised with The Legal Services Commissioner in late 2011 and only after extensive discussion by mail was referred to Consumer Affairs Victoria in 2013, I cannot see how Dr Noone has determined that the complaint is not current.

Dr Noone has also quoted an opinion by Paul Gleeson of the Melbourne law firm Russell Kennedy that I have posted “Highly defamatory” information regarding this matter on the internet and that this is contributing to the dispute. The information on the internet is a submission to the Victorian Law Reform Commission regarding the reform of our ascendancy laws and was written so as to alert the public of the inadequacies in the current laws governing the behaviour of lawyers who act as executors, It has been written in the public interest and is factual. I cannot see how she can conclude that it has contributed to the dispute. The only factors that have contributed to the dispute are: That Ian Bult concealed the relevant information and did not tell the truth about the contents of the letter. The legal regulators failed to do a proper investigation at the outset which would have uncovered the letter and prevented the problem from growing.

I have enclosed relevant extracts from the Productivity Commissions report on Access to Justice which support my claim.

Refer Access to Justice. Productivity Commission Report Overview.

Pg 10   Governing legislation needs to be amended to ensure that consumer protection is the explicit and primary objective of complaint bodies

Pg 35    Consumer redress options need to be more effective. The powers of complaint bodies need to be strengthened to better protect consumers of legal services from wrongdoing.                                           Complaint bodies in each jurisdiction should have consumer protection as their primary objective, be equipped with powers to allow this, and be more transparent. (6.4-8)                                                 Giving consumers an effective avenue for redress will provide appropriate incentives to deter wrongdoing by those offering legal services. This allows complaint bodies to exercise their functions more efficiently and effectively.

Pg 45                               RECOMMENDATION 6.8                                             State and Territory Governments should ensure greater consumer focus by legal complaint bodies. The legislated objectives of complaint bodies need to explicitly state that protecting consumers of legal services is their primary purpose. In order to support these objectives:

VOLUME 1 Pg 230                                                                                                                                            While poor business practices might drive providers out of other markets, limited competition in the legal services market means that poor behaviour can persist if it is not held in check by effective regulation. At present, while there are multiple bodies charged with professional regulation, the effectiveness of the regulatory system is stifled by a pronounced lack of consumer representation, as noted by the Centre for Innovative Justice:                                                                    … it is important to remember that, while professional associations act in the interests of their members, as well as in the interests of the rule of law; and while Legal Service Commissions act as independent bodies to investigate concerns about the legal market, there is no person or body directly charged with considering, or advocating for, the interests of legal consumers.  Indeed, the information imbalance faced by consumers is not corrected where complaint bodies act as independent arbiters of disputes. The purpose statements outlined in Legal Profession Acts tend to include providing a means of redress for complaints alongside the enforcement of professional standards. Given this dual objective, it is understandable that complaint bodies focus their limited resources on serious disciplinary matters. However, under present conditions, lawyers are able to maintain the advantage afforded by their knowledge and experience and outcomes may be more likely to fall in their favour.

A greater focus on the consumer is needed …                                              In the past, there has been some criticism of complaints processes. In several jurisdictions there were concerns prior to complaint bodies gaining independence. For example, the previous legislative arrangements in Queensland:                                                                         … had come under intense and very public and adverse scrutiny in 2002 and 2003 [when professional associations handled complaints] … the process was insufficiently independent of the profession to give the community confidence that complaints about members of the profession would be dealt with thoroughly and impartially – the media characterised the process as ‘Caesar judging Caesar’. The publicity gave the impression not only that the profession ‘looked after its own’ as it were but that malpractice was commonplace. (Qld LSC 2005, p. 7) This criticism led to the establishment of the Queensland Legal Services Commission.   However, independence is not a ‘silver bullet’, and poor practices can still prevail within independent bodies. In 2008, the Victorian Ombudsman criticised the Victorian Legal Services Commission in an investigation of its complaints processes (McGarvie 2012). The Ombudsman initiated the investigation on its own motion because it had received 95 complaints about the Commission in the previous year (Victorian Ombudsman 2009).

The Ombudsman found poor practices including delay, poor handling of minor matters, poor investigatory techniques, denial of procedural fairness, inadequate documentation explaining decisions and a low number of substantive prosecutions. The Ombudsman made 28 recommendations to improve processes and the Commissioner has reported that these have since been adopted. One example was the introduction of a Rapid Resolution Team in 2010 to expeditiously handle straightforward service matters (McGarvie 2012). While the Commission sought access to this confidential Ombudsman report from the Legal Services Commission, it was instead only provided with the Legal Services Commission’s response to the recommendations. As such the Commission has not been able to independently verify whether the improvements have adequately addressed the underlying concerns raised by the Ombudsman.

Dr Noone stated:                                                                                                 “Furthermore, on the evidence and the available information, CAV believes that the matter is a private dispute which does not give rise to a wider detriment or a systemic issue and therefore, does not meet the threshold of our Compliance and Enforcement policy.”

The Access to Justice final report identifies systemic issues relating to the rights of consumers and there enforcement by the legal regulators when complaining about the services provided by the legal profession and the wider detriment this is having upon Australian families.

 There is a systemic issue in regards to complaints regarding lawyers who act as executors which has been identified by the Victorian Legal Services Commissioner in his round table discussions relating to deceased estates. The Victorian Law Reform Commission`s report into Succession Law reform has also identified the issue.

Trust binds our society together, a lawyer who is appointed as an executor is placed into one of the highest positions of trust, when that lawyer lies to the children of their deceased mother about her wishes in order to gain revenue from the estate that breaks the trust bestowed upon the legal profession by the community. When that trust is broken and no action is taken by the regulators there is wider detriment to the community.  Apart from the destruction of family relationships the behaviour becomes acceptable. The acceptance of criminal behaviour by a privileged group has a wider detriment to our community.

In light of the above information I can only request from you as the new Minister for Consumer Affairs Victoria that you shine a light on my request for Consumer Affairs Victoria to arrange a voluntary mediation with the Melbourne law firm Russell Kennedy and ask for an explanation from CAV with genuine reasons as to why they are refusing to even facilitate the initial step in an investigation, which is to arrange voluntary mediation between the parties.

Considering the jurisprudence of consumer rights law with regards to the provision of legal services and in particular, services provided to the family of a deceased parent by lawyers who are executors. Who if they engage in misleading and deceptive conduct through self-interest, can cause irreparable damage to the family structures of the deceased parent.

The gravity of such conduct requires investigation by a legal regulator. The initial stage of the investigative process is for the regulator to facilitate a mediation between the parties, this opportunity has never been offered to my mother`s family. It is therefore appropriate to request CAV to facilitate that opportunity to the members of my mother`s family by arranging a mediation between them and the Melbourne law firm Russell Kennedy as the first step in the Investigative process.

Yours Sincerely

Diarmuid Hannigan

Response from the Director of Consumer Affairs Victoria Claire Noone.

consumer reply 5th March 2015 pg1

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