The Federal Attorney General

The Federal Attorney General

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To The Federal Attorney General Robert McClleland

16th August 2009

Diarmuid Hannigan                                                                                       236 Smith Street Collingwood.                                                                     Victoria 3066                                                                                                       03 94195044 charada@mira.net                                                             Sunday 16 August 2009

To The Hon Robert McClelland MP                                                            The Attorney General                                                                                   House of Representatives                                                                                 Parliament House Canberra

Dear Robert

Thank you for responding to my letter of 18/11/08.

Considering the progress that has occurred within the legal profession due to initiatives created within the sphere of the Federal Court System during the past ten years. I refer to:

  • Managing Justice within the Federal Court System.
  • Legal Professional Privilege and Commonwealth Investigatory Bodies.
  • Towards Quality Standards for Family Dispute Practitioners Research Report 2004.

All areas of law encompassed by the federal sphere. One would have thought that its influence and the benefits of the knowledge gained would now be made available to the State jurisdiction.

The final report on the administration of estates of deceased persons, which contains the National Committee’s recommendations in relation to the three areas outlined above, was completed in April 2009. It was presented at the April 2009 meeting of the Standing Committee of Attorneys General and will be released after it has been tabled in the Queensland Parliament. I understand that you are a member of the Standing Committee of Attorneys General.

This report of four volumes containing approximately 2000 pages has been able to address two significant concerns for our community.

  • The report clarifies the need for open exchange of information to the beneficiaries of the estate (normally the children of a deceased person) by personal representatives. (A large number being paid professionals, either lawyers, accountants or trustee companies.)
  • The report allows the beneficiaries to apply to the court to change a nominated executor if 100% of the beneficiaries agree and if they are all adults.

These changes are most welcomed and illustrate a recognition by our law reformers of a need to extricate ourselves from feudalism by directing us towards living in a modern democratic world. A world where information transfer between interested parties forms the basis of professional accountability.

While the report deals with these two issues, it fails to address critical aspects. That is:

  • The need to assure the public that the paid professional lawyer who has been nominated by a deceased person to act as an executor has up to date training in the contemporary issues that often arise when managing a deceased estate. Particularly training in mediation and alternative dispute resolution.
  • The need to implement quality standards for lawyers who act as executors of deceased estates, in order for the consumers of their services to properly evaluate, whether or not they are acting in the financial interests of the estate or acting for their own financial interests.
  • The need to deal with any disagreement in regards to family issues within a deceased estate by utilising a tribunal within the federal court system rather than the Supreme Court.

Let me first discuss the way the report has dealt with the first two issues.

In both instances it has created a mechanism that allows the court to be the final decision maker rather than mandating the issues within a standard. The concern regarding the transfer of information is fundamental to developing a process that prevents professional personal representatives to empower themselves over the family of the deceased via adversarial judicial intimidation.

The proposed model allows a beneficiary to request information which should be forthcoming. The personal representative can refuse. The option for the beneficiary is then to involve themselves in a legal process that creates funds for the legal profession and takes up time. The beneficiary cannot go to their local police station and demand the police access the information. Instead a court must hear argument from the beneficiary and from the personal representative into why and why not the information should be provided. The court will make the decision and the estate or the beneficiary will cover the costs of the exercise even when the court decides the request by the beneficiary is valid. In other words the professionals gain and the general community again looses.

The proposed model allows the passing over of a personal representative if all of the beneficiaries are adults and all agree to nominate another beneficiary at the courts discretion. A problem occurs when one of the beneficiaries share is placed into a trust and the beneficiaries of the trust are the beneficiary’s children as is the case with trusts that are created to protect a beneficiaries share from their trustees in bankruptcy even when they have never been a bankrupt and are never likely to become so.

The fact of the matter is that the personal representative can contest the request by the beneficiaries in the court which will result in delays to the finalisation of the estate and can mount up costs against the estate for their own benefit.

 The fact that the report has failed to:

  • deal with the issues of training in mediation and alternative dispute resolution for paid personal representatives.
  • demand the implementation of quality standards covering the construction of the will through to its administration by paid professionals whether they are lawyers writing wills or paid professionals acting as executors or trustees.
  • create an alternative low cost tribunal for resolving disagreements within family units with regards to inheritance.

neglects the Australian Community in the long term.

We as a nation have the opportunity to extricate ourselves from a feudal construct, a construct that influences the overall wealth of our nation and the individual wealth of the people who live here. We have the ability to construct a mechanism of dealing with the transfer of assets from the dead to the living that could be seen as progressive on a global scale. The primary basis for the construct would be to insure harmony within family structures is maintained as a core philosophy and that the value of the estate be maintained so as to best serve the interests of the beneficiaries.  Paid professionals involved in the construct of estates and their administration would work with these principals guided by their training and quality control standards. The standards and training would evolve as core problems with our inheritance system are identified.

Currently there is no collection of data to evaluate the performance of our current system and as far as the contents of the report go it appears as if there is no need for this evaluation. By its neglect the authors of the report have ignored its purpose which I presume was to provide the Australian community with a fairer, simpler and more cost effective way of dealing with inheritance.

 If one ask the questions:

  • What was the value of the estate?
  • How much time and money were spent on the will?
  • How much time and money was spent on the administration of the estate?
  • What was the value of the distributions of the estate?
  • What would constitute a failure of the will as a contract from the dead to the living?
  • Would a cost of 20% of the value of the estate and a complete breakdown in family relationships constitute a failure or a success in terms of the objective?

With regards to the failures, we would then be able analyse cause and identify methods to mitigate cause. Having regard for the possibility that cause could be problematic in a proportion of failures; once a particular area of cause is identified standards could be modified to assist in minimising failures as a result of a particular cause by improving the process. Whether it is through the provision of information and guidance to the client at the outset, through the construction of a mediative rather than adversarial construct during administration.

When analysing the bodies providing contribution to the fabric of the report it is apparent that those representing the legal profession and trustee organisations far outnumbered all other bodies. It was disappointing to see that many of their submissions where based upon self interest and were directed continually at resisting reform to accountability through the creation of standards for their own profession in its role to serve the people of Australia. 

Appendix 2 List of respondents:

Administration of estates

The following respondents made submissions in relation to the issues raised in

QLRC MP 37, NSWLRC DP 42 or the further paper distributed in relation to

elections to administer:

Bar Association of Queensland

Circosta, Mrs Jill (a former ACT Registrar of Probate)

Department of Natural Resources

Law Institute of Victoria

Law Society of the Australian Capital Territory

Law Society of New South Wales

Law Society of Tasmania (Property and Commercial Law Committee)

Lee, Mr W A (Tony)

National Council of Women of Queensland Inc

Public Trustee of New South Wales

Public Trustee of Queensland

Public Trustee of South Australia

Public Trustee of Western Australia

Queensland Law Society Inc

Ross, Mr A

State Trustees Limited

Trust Company of Australia Limited

Trustee Corporations Association of Australia

Trustee Corporations Association of Australia (Queensland State Council)

Victorian Bar

A further three submissions were received from individuals.

When one analyses our current situation and realises the creation of our current economic crises has been founded upon the unaccountability of our legal and financial professions who were instrumental in bringing about this collapse. One cannot separate the two as they symbiotic. The financial component has to have the legal construct in position prior to it being able to operate. If the entity created via this construct fails the wider community the authors of the construct are not accountable whilst they are instrumental in constructing entities that allow their operators to also be unaccountable.

The weight of submissions and the power held by the organisations that represent those submissions is of concern to the wider Australian community particularly when one realises that lawyers are unaccountable and they advise the operators of our financial entities to place themselves in unaccountable positions.

We must remember that a personal representative (paid or unpaid] places themselves in the shoes of the deceased. Unfortunately this allows the paid professional greater power than the family member beneficiaries. There are no covenants attached and there should be two.

  • The paid professional should be a registered and trained person authorised trained and governed by the standards of an organisation set up to administer and evaluate the administration of deceased estates within Australia and should be afflated with the Federal Family Court. Not the individual supreme courts in each separate state.

The reason this action must occur is so as the vast sums of money that are currently being extracted and directed by these two powerful groups into their own self serving system will be returned to Australian families who will distribute it in a more equitable manner into the country.

This will occur because the time lapse due to prolonged legal process will diminish and the administration costs of deceased estates will drop. There will be fewer people and families being psychologically damaged by an outdated process. This change will also enhance the productivity of our nation.

To observe this process as an outsider I am appalled by its myopic and self centred approach. The report has incorporated the feudal laws that were created by our convict scribes (generally those persons who were literate and transported for offences pertaining to fraud), the only people who could write and were required to transcribe the beginnings of our new colony. People who went on to gain positions of power. The report has tinkered at the edges of may I say a 17th century decaying castle. A model that is outdated and has been surpassed. The commission had the ability to realise this but has been guided by the weight of self interest and power, over and above that of the common good.

Furthermore, the Federal Government knowing that the report was the construct of a State Government agency and therefore forms a part of the power sharing arrangement between our Federal Government and the respective state and territory governments should realise that under the Australian Constitution there is no corresponding power sharing arrangement with any Australian government and its residents. This being the case: it places the mercy of the residents of this country in the hands of those entities whether government or otherwise (in this situation, the legal profession and the trustee industry) who are a party to the power sharing arrangement over and above the residents of Australia who are the citizens of our nation.

Thus legislation formed by an elite group of unaccountable unelected professionals that exploit the inheritance wealth of a nations citizens for their own financial gain could be construed as an abuse of the human rights of those that are disaffected by it.

The current system of administering deceased estates is not benefiting the wider community who are compelled to use it. The system is fraught with challenges. Many of them are too expensive and time consuming to resolve and favour the financial interests of the legal fraternity over and above the community who are forced to utilise their services. I put to you that the way we deal with our family inheritance is in the long term interests of the nation. When one realises the annual pool of wealth transferred through deceased estates in Australia amounts to approximately 70 Billion Dollars and approximately 20% of that wealth is siphoned into the legal profession and the trustee industry, say 14 billion dollars which accumulates every year.

I therefore implore you to utilise your influence upon the States and territories to ensure that the physiological and financial interests of the families of the deceased are given priority over and above that of the financial interests of the legal profession and the trustee industry.

In my letters to The Victorian Attorney General, The Hon Rob Hulls MP enclosed. I have addressed four key points.

  • The power imbalance that currently exists between a family and a lawyer/executor in regards to any information that may be considered privileged under the law that will assist in determining the true wishes of a deceased parent.
  • The need to assure the public that the paid professional lawyer who has been nominated by deceased person to act as an executor has up to date training in the contemporary issues that often arise when managing a deceased estate. Particularly training in mediation and alternative dispute resolution.
  • The need to implement quality standards for lawyers who act as executors of deceased estates in order for the consumers of their services to properly evaluate whether or not they are acting in the financial interests of the estate or acting for their own financial interests.
  • The need to deal with any disagreement in regards to family issues within a deceased estate by utilising a tribunal contained within the jurisdiction of the Federal Family Court rather than the jurisdiction of the state run Supreme Courts.

The Federal Court has expertise in all of these areas of our legal process and I am positive that by transferring the area of deceased estates under its jurisdiction our communities would be able to save a great deal of money time and heartache in the event of a family members death.

The benefits to the overall nation being happier healthier and wealthier families combined with less congestion within our overloaded court system.

I look forward to your reply.

Yours Sincerely

Mr. Diarmuid Hannigan.

From The Federal Attorney General Robert McClleland

30th June 2009

attorney general 30 06 2009

From The New South Wales  Attorney General John Hertzistergos

8th January 2009

 

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To The Federal Attorney General Robert McClleland

8th November 2008

 

Diarmuid Hannigan                                                                                        236 Smith Street Collingwood.                                                                     Victoria 3066                                                                                                        03 94195044 charada@mira.net                                                        Sunday 8th November 2008

To The Hon Robert McClelland MP                                                                 The Attorney GeneralHouse of Representatives                             Parliament House Canberra

Dear Robert

Thank you for your response to my letter. I have enclosed the responses from the state Attorneys Generals for your reference.

There has been much tinkering with the law in relation to wills and many changes to it. There has been recognition of the fact that there are many problems associated with this law. With all of the work and improvements there are still no standards for lawyers who act as executors. In fact lawyers who act as executors are not accountable to the beneficiaries of a deceased estate because they are not their clients and are not covered by the legal practitioners act.

  1. A will is a statement by a will maker (testor or testrix) of how the will-maker wants his or her property (estate) to be dealt with when he or she dies. Two governing principles of the law of wills are
  • That a will-makers ascertainable intentions should be upheld, but also
  • That great care should be taken in determining whether what is claimed to be an expression of the will maker’s wishes is genuinely so, because when a will operates (on a will-makers death) he or she is no longer present to speak for himself or herself.
  1. A lawyer who is an executor can make a decision regarding the wishes of the deceased based on information he or she has, which can be claimed to be privileged. This means that the privileged information can be withheld from family members, including a family member who has been nominated by the deceased as executor. This privilege also applies when the family member executor and the lawyer executor disagree upon the interpretation of the wishes of the deceased.
  1. The lawyer/executor is not accountable for the decisions he or she makes under the legal professional act because they are acting as an executor and not a lawyer. They can claim the information which they have access to and allows them to hold their view of the deceased’s wishes is privileged and should not be available to the family member executor.
  1. This situation puts the lawyer/executor in a more powerful position than the family member executor when determining the wishes of the deceased.
  1. If we concur that the family unit is the foundation block of the formation of our civilised society, thus the point from which our laws emanate then:

Why is it that the legal professional who is acting as an executor of a deceased estate can be allowed to hold vital information from the family member executor which can assist in determining the wishes of the deceased?

  1. In attempting to make a decision of the wishes of a person who is no longer alive one would have thought that the interpretation of any information disclosed to any party including a lawyer/executor should be available to the family nominated executor in order that the family representative may also have an interpretation of that information. Particularly when one considers that the family member executor would in most instances have been in contact on regular occasions with the deceased before they died and would be familiar with their wishes.

In the case of my late mother’s estate, my sister was named as executor. Prior to probate commencing it became apparent that Mr. Ian Bult of Russell Kennedy (the lawyer/executor) had a different interpretation to my sister of how my share of the estate should be handled. Mr. Bult claimed that this interpretation was based upon a letter written to him from my mother six years prior to her death and four years prior to the signing of her last will.

My sister requested a copy of this letter from Ian Bult. Mr. Bult refused to supply a copy of this letter claiming it was privileged information. Mr. Bult then advised my sister to withdraw from her position as executor and to renounce her position as family member executor. This pressure led to my sister having a nervous breakdown, caused an irrevocable split in our family and wasted at least $50,000 in lost interest to my mother’s children and a further $60,000 in unnecessary legal costs. Russell Kennedy and Ian Bult being the primary beneficiaries of this dispute in the form of legal fees that they charged against the estate.

Ian Bult has not taken any up to date training in the area of management of wills and estates or in the area of mediation or alternative dispute resolution.

Russell Kennedy does not have any in house quality standards regarding the administration of wills and deceased estates.

Does the review undertaken by the National Committee for Uniform Succession Laws address the power imbalance between a lawyer/executor and a family member executor with regards to any privileged information held by the lawyer/executor which would assist in determining the wishes of the deceased?

(The current situation requires an application to the Supreme Court to obtain such information. This process permits the lawyer/executor to charge the estate for defending the application and necessitates the hiring of a lawyer to file for the information to The Supreme Court. Estimated costs in the order of $50,000 against the estate. Having in mind that the information, in my particular case, one letter which would allow the family of the deceased to determine a family interpretation of the wishes of the deceased.)

Does the review undertaken by the National Committee for Uniform Succession Laws address the issue of up to date training of lawyers who act as executors of deceased estates in mediation and alternative dispute resolution. In particular the importance of the provision of vital decision making information to other persons who are named as executors by the deceased, which would reduce the need for expensive litigation in the Supreme Court?

Does the review undertaken by the National Committee for Uniform Succession Laws address the need to implement quality standards for lawyers who act as executors of deceased estates in order that it is simple to evaluate whether or not they are utilising the legal process to generate a dispute that can only benefit themselves and damage the value of the estate?

Does the review undertaken by the National Committee for Uniform Succession Laws address the need to create a more informal and less costly venue for the evaluation of the wishes of the deceased person such as tribunals instead of The Supreme Court?

In my book Lawyers or Grave Robbers? I have posed a question.

Are some lawyers who are acting as executors actually behaving in such a way through legal process that they could be seen to be robbing the graves of their deceased clients?

I have put forward suggestions for the creation of mechanisms which would prevent this type of exploitation by lawyers from occurring.

These suggestions are:

  • up to date training
  • quality standards
  • an alternative venue from The Supreme Court in the form of less costly and informal tribunals.

These suggestions if implemented would provide greater consumer protection for the families of deceased persons and would protect the interests of many hard working legal professionals.

I look forward to your reply.

Yours Sincerely

Mr. Diarmuid Hannigan

CC New South Wales Attorney General. Hon John Hatzistergos M.P.       Western Australian Attorney General. Hon Christine Porter M.P.       The Victorian Attorney General.  Hon Rob Hulls M.P.                          The Queensland Attorney General.Hon Kerry Shine M.P.                   The South Australian Attorney General.  Hon Michael Atkinson M.P.

Diarmuid Hannigan

 

From The Federal Attorney General Robert McClleland

22nd October 2008

attorney general 22 10 2008

From The New South Wales  Attorney General John Hertzistergos

13th October 2008

attorney general nsw 13 10 2008 pg1

 

 

attorney general nsw 13 10 2008 pg2 attorney general nsw 13 10 2008 pg3

To The Federal Attorney General Robert McClleland

24th August 2008

Diarmuid Hannigan                                                                                        236 Smith Street Collingwood.                                                                     Victoria 3066                                                                                                        03 94195044 charada@mira.net

Sunday  24th August 2008

To The Hon Robert Mc Clelland M. P.                                                         The Attorney General House of Representatives                     Parliament House Canberra

Dear Robert

I hope you are enjoying your new position in life and the opportunities it will bring. It is a unique time for our nation with all governments through out our country having the capacity to work in unison, particularly in the area of law reform. The improvements that this work will bring will impact upon generations of Australians for many years to come.

There are two areas of Law Reform that are of concern to me.

  • Inheritance law
  • The costs of our legal system.

I understand that the The Queensland Law Reform Commission is the body which has been designated to implement uniform laws on ascendancy within Australia and will release a report in early September 2008.

The particular area of this report that interests me is:

Administration of estates of deceased persons

  • general issues of administration—such as the appointment and removal of personal representatives, the powers, duties and liabilities of personal representatives, the vesting of property on the death of a person, the order of payment of debts in an insolvent estate, the application of assets towards the payment of debts in a solvent estate, and the payment of legacies;

The powers, duties and liabilities of personal representatives, in particular Lawyers who act as executors of deceased estates intersects with the second area of Law Reform, (The costs of our legal system).

As a result of an encounter with our legal system resulting from the death of my mother and matters relating to her estate I wrote a book about many of the inadequacies within our legal system pertaining to the management of deceased estates by legal professionals. It delves into the area of bringing legal professionals to account for their decisions when managing these estates which may well be in their own financial interests rather than those of the beneficiaries.

The area of inheritance is fundamental to family and therefore community well being. Currently there are no standards governing lawyers who act as executors. The Legal profession as a whole is only accountable to itself and without wider community debate will remain so for time immemorial. The book questions the value of this structure to modern day Australia with regards to ascendancy law and outlines a quality standard for lawyers who act as executors.

There are many people within Australia who have not been well served by the legal profession. These people know they have been abused and feel terribly damaged by their experiences. They do not understand the historical processes which have bought about this abuse of hard working honest human beings and are lost.

When one sums the number of complaints against the legal profession and the negative impact they have had on individual Australians both financial and emotional the costs are horrendous and are impacting upon the productivity of our nation as a whole for the benefit of a privileged legal profession.

More often than not consumers of our legal services are not allowed to make complaints or do not make them because they do not have the emotional or intellectual capability to do so and are left to suffer in silence.   (The most common being the vexatious litigant who is encouraged by the legal professionals on both sides of the dispute to continue with an exercise in futility in order that the profession can extort more fees and charges from the claimant and the defendant by following due legal process).

The book concludes with a simple outline of the origins of our English adversarial legal system and the reasons as to why it should not be a basis for transferring our inheritance from one generation to the next in Australia. I believe this legal structure of adversarial ism is foreign to the mindset of many families who have migrated to Australia from Europe and can be particularly damaging to those families when handled by a lawyer who is self serving and unaccountable.

I regard the actions of the lawyer/executor as a form of intellectual abuse of my mother before and after her death. I realise this is not an area of physical abuse of the elderly but it is certainly an area of intellectual abuse, an abuse that could be reduced by ensuring the legal profession develops quality standards for lawyers who write wills and are acting as executors of deceased estates.

There are many other forms of intellectual abuse of elder Australians by unscrupulous professionals involving financial transactions. Many, if not most are monitored by the legal profession in one form or another. When problems arise which are normally created through a repetitive fault within the monitoring profession: unfortunately the legal profession remains besotted by ethics rather than standards; standards would identify the areas where repetitive faults occur within the profession and allow Quality Control Standards to be set in order to prevent the re occurrence of such problems.

The outcome being: Less time spent overall by elderly Australian citizens and their families being involved in expensive and destructive litigation which damages families and benefits the legal profession.

Inheritance law is unique as it engages parties who through circumstances rather than fault are forced to interact with the legal system. Criminal, civil, and family law on most occasions engage parties who were involved in some way prior to the event occurring.

Inheritance law engages people who in most instances are the children of people who have died and who want to share the inheritance harmoniously for the betterment of their family’s future. If a self serving, unaccountable, legal professional gets involved; the results can often lead to family breakdown, mental illness and everlasting financial damage to the family unit.

I urge you in your new position to address this area of Australian law and help to make Australia an even better place to live in.

Yours Sincerely

Diarmuid Hannigan.

Copy of my book Lawyers or Grave Robbers? Enclosed

A perspective of our Legal Industry through the eyes of a minion. (Non Lawyer)

A debate that is long overdue!

A great deal of time and money has and is being spent on Law Reform. May I say with excruciatingly slow progress? This failure by our law reformers is hurting many families with Australia and is detrimental to our national development.

There are numerous committees who meet and propose various aspects to law reform including:

The productivity council`s investigation into access to justice.                The Victorian Law Reform Commissions Review of our Inheritance Laws. The Australian Government`s National Legal Professional Reform Project. Just to name a few.

This process of law reform is severely flawed; as it is lawyer controlled and dominated. Family and community should be the dominant force; In fact they rarely even rate a mention or get to bare any influence throughout the reform process.

None of these law reform bodies are proposing that the legal profession honour its obligations to consumers of its services under the Trade Practices Act of 1974 or to Australian Consumer Law and become accountable to Australian Consumers.

Every day the Australian public are subjected to another atrocity that has been created by the failure of our legal profession to acknowledge the importance of being accountable to the families that make up our communities from which decent values are formed.

It is well worth while listening to this discussion on legal ethics re the Catholic Church broadcast on ABC Saturday Extra. Link

It is illustrative of how damaging an unaccountable law firm can be. The results; a very poor judgment from a one sided contest that has damaged the integrity of one of our strongest spiritual organisations and has also embarrassed us on the international stage as a result of Cardinal George Pell`s position within the hierarchy of the Catholic Church.

One only has to ask. What if the legal fraternity had been bound to the Trade Practices Act of 1974 and engaged in a culture of trust, transparency and truth, where misleading and deceptive conduct and unconscionable conduct, combined with unfair empowerment in a contract are forbidden practices?

One also has to ask why the legal profession is not bound by this act, and what damage that has caused our nation? After all this act is the foundation stone upon which all business to business contracts are run and upon which all business to consumer contracts are run, and establishes a culture of truth, transparency and trust within our community.

Senator John Madigan in his speech: Access to Justice, mentions a Melbourne law firm Russell Kennedy and the atrocities this firm have committed upon his friend Murray.

Link to John Madigan`s speech.

The reason I mention this firm is because there are many parallels of legal negligence and unaccountability between his case and my own experiences when dealing with this law firm. The grizzly details are all available at http://www.lawyersorgraverobbers.com/web/

Despite approaching every legal regulator in Victoria which includes

The Law Institute of Victoria                                                                         The Victorian Legal Ombudsman                                                               The Victorian Legal Services Commissioner                                           The Victorian Ombudsman                                                                           Consumer Affairs Victoria

None of these organisations can assist, not even to the point of offering a voluntary mediation between my mother’s family and the Melbourne law firm Russell Kennedy. This is despite the fact that these authorities have all been provided with irrefutable evidence that my mother’s children were lied to about her final wishes by Mr Ian Bult who at the time was acting for the members of the Melbourne law firm Russell Kennedy at the time of my mother’s death.

The excuse used by Dr. Noone Director Consumer Affairs Victoria,

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 dis empowers a lawyer or a law firm as it is not a court, a court that disadvantages non-lawyers through expense and bias.

You may not be aware but this law firm specialises in aged care and retirement living. It’s the new honey pot for the legal profession and as seen by this link which informs us that the Melbourne law firm Russell Kennedy are now going to Canberra to expand their influence, ref link: http://www.b2bmagazine.com.au/new-to-canberra,-not-to-government-668.html

A form of legal colonisation ref link:

 “At its heart, it seems to be suggesting that a lot of the services provided by lawyers should be de-coupled from the legal profession. Lawyers, like white ants, have colonised vast areas of endeavour that could just as ably be carried out by anyone with half a brain. To have half-brain type work billed out as though genius had done it is one of the reasons why things are so expensive. 

Read more:

The reason as an elected member of parliament that you should be concerned by trends such as the expansion of a law firm into the federal sphere of aged care is because we are dealing with one of the most vulnerable groups in our society who are open to financial exploitation by unaccountable financial predators.

It would be wise to investigate and understand the law firm`s background and the regulatory environment from which it grew. It appears that the regulatory environment is controlled by the legal fraternity and colludes to protect the atrocities committed by some of its way wood brethren. Good insurance would be to obtain the records of consumer complaints against such large and influential law firms and find out for yourselves as to whether there is any merit in the complaints and whether or not there is systemic abuse by particular law firms prior to letting them advise on national policy. (The N S W Legal Services Commissioner has mentioned a problem with (Repeat Offenders))

The Article written by Michael West, Life’s no picnic when the law is in the hands of lawyers

Age 19 04 14 Read more:

Describes the culture of hubris exuded upon the unsuspecting subjects of South Australia by the legal profession and its inherent nepotism. Unfortunately this culture is duplicated within every state of the nation.

The Victorian Government Ombudsman own motion report into the Victorian Legal Services Commissioner as mentioned in his annual report of 2009 pg 21 to 23 has 28 recommendations. The own motion report is not available to the public, the excuse being it was not tabled in parliament, and I would very much appreciate it if you could ask for a copy of this report from the Victorian Ombudsman as he does not appear to be able to release it. Below is an extract from the Victorian Ombudsman`s 2009 Annual Report:

“I also conducted an own motion investigation into the Legal Services Commissioner and its decision-making processes under section 14 of the Ombudsman Act because of the number of complaints I had received. My investigation identified a lack of understanding by staff of the Legal Services Commissioner’s statutory powers and a restricted skills-set to conduct investigations. The Legal Services Commissioner’s investigators showed limited knowledge of the basic techniques of investigative processes. Case files lacked:

  • investigation plans
  • thorough and professional approaches to gathering evidence
  • follow-up on serious allegations
  • substantiating documents such as practitioners’ files
  • timely conclusions
  • verification of practitioners’ responses
  • reasons for decisions.

 I made 28 recommendations to the Legal Services Commissioner and am pleased to note that it has taken steps to address a number of problems identified in my own motion investigation. I intend to review the Legal Services Commissioner’s implementation of my recommendations over the next year. I also referred the report of my investigation to the Attorney-General for his information, particularly in relation to the inability of the Legal Services Commissioner to re-open cases on the basis of merits.”

As far as the implementations of the recommendations, well who knows but from my own experience and those of others I speak with. Nothing much has happened.

The regulatory framework of the legal profession as far as the government is concerned sits within the Victorian Department of Justice which is a lawyer dominated tribe. The firm Russell Kennedy has access to advise on five special committees to the Victorian Government and is heavily involved in the aged care and retirement living community.

I have read through the report by The Victorian Ombudsman on the Brookland Green`s Estate. (City of Casey 2009), Russell Kennedy was the developer’s lawyers. In collaboration with the developer it appears as if the law firm engaged in some dishonest and manipulative techniques which help to create an environment where families purchased land and built their homes on land that was emitting methane, which could have led to explosions, thereby endangering the health and safety of those families. Not to mention the financial burden these families have incurred by owning houses on land that is unsellable. It appears from reading the report that Russell Kennedy played a pivotal role in securing permits to build on questionable land for approximately 1000 house lots. At a sale price of $150,000 per lot, would have netted the development syndicate $150 million less the development costs say max $50 million, rendering a net profit of approximately $100 million. At the expense to innocent young people who were trying to make a go of it.

It appears from reading the report that the Melbourne law firm Russell Kennedy were motivated to secure as much land for development as possible to obtain a maximum profit for the developer at the expense and safety of the evolving community by whatever means possible. I am wondering what the agreement was between the Melbourne law firm Russell Kennedy and the developer. It appears to me that they were either rewarded on the basis of how many extra blocks of land they could secure or they were indirectly involved in the share structure of the development.

The report is very long 250 pages. I have separated the sections pertaining to Russell Kennedy`s involvement.

I note that the Ombudsman does not in his recommendations request any regulatory scrutiny of the actions of the Melbourne law firm Russell Kennedy, which I see as typical of the hubristic culture now displayed by the Victorian Regulators of the legal Industry. It is clear from this report that the Melbourne law firm Russell Kennedy participated in misleading and deceptive conduct, unconscionable conduct and used their power unfairly along with the developer in a contract. The Ombudsman did not refer this matter to the Victorian Legal Services Commissioner or to Consumer Affairs Victoria despite the seriousness of the final outcomes. The Ombudsman had recently completed a damming report on the Victorian Legal Services Commissioner and the type of behaviour exhibited by the Melbourne law firm Russell Kennedy throughout this disaster is indicative of a destructive culture that has been allowed to grow within the legal profession through the ineptitude of its regulator; In this case costing the Victorian Tax payer at least $100 million dollars in compensation and land repair costs so as to stop the leakage of methane.

I have attached my synopsis of the Ombudsman`s report on the Brookland Greens fiasco. (Please see below.)

My own experience relates to Inheritance Law. Since there is a great deal of money involved for the legal profession the reform process in this area will set the agenda for many other components of the legal industry.

I would like to share my concerns with you regarding the final report released by the Victorian Law Reform Commission on its Review of Our Succession Laws which will be used as part of the national plan to unify our ascendency laws..

I have communicated these concerns via an audio visual medium as I feel it will be more useful in creating public discussion about this most important issue which will shape the future of this nation.

The report does not address:

The fact that the legal profession manages the greater share of the transfer of inheritance and is not bound to comply with Australian Consumer Law. Therefore it is free to engage in misleading and deceptive conduct, unconscionable conduct and unfair empowerment in a contract.

I have attached my comments in detail for your information and have provided you with five links to You Tube where I have communicated my concerns and proposed solutions for your viewing.

The first three videos are an introduction to the issues and the last two identify the problems and suggest solutions.

I hope it is a gift that bears fruit or perhaps cheesecake.

LAWYERS OR GRAVE ROBBERS? INTRODUCTION. CAN WE TRUST OUR LEGAL SYSTEM?

LAWYERS OR GRAVE ROBBERS? A HISTORY OF GRAVE ROBBING IGNORED BY AUSTRALIAN LEGAL CULTURE.

LAWYERS OR GRAVE ROBBERS? BOATS THAT BRING FAMILIES. A CULTURE SPURNED BY AUSTRALIAN LAW MAKES.

LAWYERS OR GRAVE ROBBERS? SUCCESSION LAW REFORM BY LAWYERS.

HOW TO STOP LAWYERS FROM ROBBING OUR GRAVES.

BROKEN TRUST

There is a desperate need to educate our community on the need for law reform in the area of inheritance as it is currently too expensive, takes too much time and damages families.

I trust you will appreciate the need for this debate and assist in facilitating it so as it is in the public arena which will help develop our nation as there are currently some very serious cultural flaws that exist within the framework of our law reform processes.

I thank you for your time and interest and if I can be of further assistance in facilitation of the debate I would be more than happy to assist.

Good wishes

Diarmuid Hannigan (B Mech Eng)

Contact Details Diarmuid Hannigan 236 Smith Street Collingwood. Victoria 3066 03 94195044 charada@mira.net

Ombudsman`s report on the Brookland Greens fiasco Russell Kennedy`s input.

I have read through the report by The Victorian Ombudsman on the Brooklands Green Estate. (City of Casey 2009), the Melbourne law firm Russell Kennedy was the developer’s lawyers. Through their somewhat dishonest and manipulative techniques they created an environment where families purchased land and built their homes on land that was emitting methane and which could have led to explosions thereby endangering the health and safety of those families. Not to mention the financial burden these families have incurred by owning houses on land that is unsellable. It appears from reading the report that the Melbourne law firm Russell Kennedy played a pivotal role in securing permits to build on questionable land for approximately 1000 house lots. At a sale price of $150,000 per lot, would have netted the development syndicate $150 million less the development costs say max $50 million, rendering a net profit of approximately $100 million. At the expense to innocent young people who were trying to make a go of it.

It appears from reading the report that the Melbourne law firm Russell Kennedy were motivated to secure as much land for development as possible to obtain a maximum profit for the developer at the expense and safety of the evolving community by whatever means possible. I am wondering what the agreement was between Russell Kennedy and the developer. It appears to me that they were either rewarded on the basis of how many extra blocks of land they could secure or they were indirectly involved in the share structure of the development.

The report is very long 250 pages. I have separated the sections pertaining to Russell Kennedy`s involvement.

I note that the Ombudsman does not in his recommendations request any regulatory scrutiny of the actions of the Melbourne law firm Russell Kennedy, which I see as typical of the hubristic culture now displayed by the Victorian Regulators of the legal Industry. It is clear from this report that the Melbourne law firm Russell Kennedy participated in misleading and deceptive conduct, unconscionable conduct and used their power unfairly along with the developer in a contract. The ombudsman did not refer this matter to the Victorian Legal Services Commissioner or to Consumer Affairs Victoria despite the seriousness of the final outcomes. The Ombudsman had recently completed a damming report on the Victorian Legal Services Commissioner and the type of behaviour exhibited by the Melbourne law firm Russell Kennedy throughout this disaster is indicative of a destructive culture that has been allowed to grow within the legal profession through the ineptitude of its regulator; In this case costing the Victorian Tax payer at least $100 million dollars in compensation and land repair costs so as to stop the leakage of methane.

If you view this report together with the way the Melbourne law firm Russell Kennedy has treated Murray, the farmer mentioned by Senator John Madigan in his Access to Justice Speech in the Senate, combined with my own family’s situation you can see a similarity with all three cases. That is the Melbourne law firm Russell Kennedy have engaged in Misleading and deceptive conduct, unconscionable conduct and unfair empowerment in a contract in all three instances. Which leads me to believe this is part of the culture of this firm.

A far more serious concern should be this firm’s expansion of its existing practice within the Aged Care and Retirement living industry in Victoria to the national stage; through its adventure to Canberra.  The last thing I would want to see is an uncontrolled entity such as Russell Kennedy let loose on one of our most vulnerable sectors in our community, the aged.

http://www.b2bmagazine.com.au/new-to-canberra,-not-to-government-668.html

If Russell Kennedy thinks it is OK:

  • To let young couples live in houses that can explode whilst they are developing families
  • To bleed a farmer of all his hard earned wealth, wealth that he created through his own sweat and blood.
  • To lie to the children of their dead mother about her final wishes.

God alone knows what they have in store for our ageing population but I am sure it will involve diminishing the value of the money they have invested into retirement living at the fasted rate possible and then dispensing with the carcasses, in the cheapest way possible.  This will not be too difficult as the retirement village will most likely be built on top of a tip and there will be plenty of free methane with which to power the incinerator.

History tells us that when you allow an unregulated powerful group to dominate you end up at the house of horrors with an isolated population being gassed to death and then incinerated. In this case a green field site that is carbon neutral.

I have included my review of the Ombudsman’s report and a link to the full report. The numbers on the side lead you to the relevant sections pertaining to (Colin Taylor of the Melbourne law firm Russell Kennedy) of the report. Remember Colin Taylor is one of the principles of this firm; he is not a minion, as is Michael Main, Ian Bult and Paul Gleeson all persons named on my mother’s estate documents as executors, a firm that sits on five special advisory boards to the Victorian Government.

Best Wishes

Diarmuid.

Brooklands Green Estate Shire of Casey. Review of Ombudsman’s report

The Melbourne law firm Russell Kennedy were the lawyers who represented the developers Peet at the Planning Appeal Tribunal VCAT.

The expert witness for Pete told Colin Taylor of the Melbourne law firm Russell Kennedy that there had been problems with methane escape in a similar development which had the potential to cause an explosion. The lawyer from the Melbourne law firm Russell Kennedy when questioning the expert witness did not broach this issue and the decision by Member Horsfall went in the favour of the developer; hence this disaster. The Melbourne law firm Russell Kennedy also prepared the section 173 and omitted the word land fill replacing it with Sand Extraction Facility. This little omission has cost the Victorian Community a pretty sum estimated to be in excess of $100 million. .

The solicitors acting for the developer Peet were the Melbourne law firm Russell Kennedy. They were represented by Colin Taylor one of the principles of the firm also mentioned as an executor of my mother’s estate.

From reading the report and being aware of the culture within Russell Kennedy of sophistry I enclose my synopsis.

The development involved a 135 Hectare site that bordered two landfills that had both been sand extraction facilities.

The section 173 Agreement drafted by the Melbourne law firm Russell Kennedy in its final form does not mention land fill only sand extraction.

926 The Section 173 Agreement was drafted by the Melbourne law firm Russell Kennedy, lawyers on behalf of Peet and signed by the City of Casey and Peet on 16 August 2000. Clause 2.1 of the Agreement contained covenants that no dwelling was to be constructed within a buffer area until:

  1. My investigation established that the Section 173 Agreement made no reference to the Stevensons Road landfill. The wording in the Agreement referred to a ‘sand extraction site’. At the time that the Agreement was signed in August 2000, sand was still being extracted from Lot 7 of the Stevensons Road site in preparation for the acceptance of putrescible waste.

However, the landfill at Lot 10 Stevensons Road had been in operation for over four years and sand extraction was finished in Lot 7 by December 2000. Also, the ‘Schedule 2 Buffer Plan’ included in the Agreement made no mention of the landfill, again only referring to a ‘sand extraction facility’ in the location where the landfill was operating.

  1. I note that the Section 173 Agreement, which failed to make any mention of the landfill, was included with Peet’s contract to prospective purchasers of residential lots in the estate. Since March 2007, Peet has included with its contracts to potential property purchasers a copy of a letter from the then Mayor of the City of Casey dated 7 March 2007 advising of the restoration works at the landfill and the detection of small amounts of landfill gas in the estate.
  2. The landfill was referred to as ‘future parkland’ rather than a ‘landfill’ by Peet in its sales material advertising the estate. This is consistent with the City of Casey’s long-term vision to rehabilitate the landfill and use it as parkland.
  1. Mr Jonson of Bosco Jonson, the surveyors engaged by Peet, was interviewed on 28 November 2008 in relation to why the ‘Schedule 2 Buffer Plan’ attached to the Section 173 Agreement referred to a ‘sand extraction facility’ and not a landfill. He said:

It’s interesting that you could pick up on that as there was never any doubt that in my mind that that’s what those buffers referred to. I’d say that is probably a drafting error.

  1. Mr Colin Taylor, formerly of Russell Kennedy Lawyers and who acted on behalf of Peet, was also asked about the reference to a ‘sand extraction facility’ and not a landfill in the Section 173 Agreement. At interview on 25 March 2009 he said:

I can’t answer

Mr Colin Taylor, formerly of Russell Kennedy Lawyers and who acted on behalf of Peet, was also asked about the reference to a ‘sand extraction facility’ and not a landfill in the Section 173 Agreement. At interview on 25 March 2009 he said:

I can’t answer that. I don’t know why. I don’t think there was an intent to try and obscure it.

  1. During the course of my investigation I established that an earlier draft of the Section 173

Agreement, including the schedule/plan on buffers prepared by Bosco Jonson and sent by Russell Kennedy Lawyers to the City of Casey on 14 July 2000, made specific reference to the landfill site.

  1. However, all references to the landfill site had been removed from the Section 173 Agreement and the final schedule/plan signed by the City of Casey and Peet on 16 August 2000. While I have been unable to identify who removed the reference to the landfill on the earlier draft of the schedule/plan or to establish whether this was done intentionally, I note that the City of Casey and its advisers did not identify and rectify the matter before executing the agreement.
  2. Colin Taylor of Russell Kennedy represented Peet in proceedings against SITA who were the company managing the land fill site. He was therefore aware of the problems with gas being emitted from the ground where Peet was trying to alter the planning scheme so as to allow them to build homes for families upon it.
  3. My investigation revealed that SITA and Peet had come to an arrangement prior to the VCAT hearing, whereby Peet agreed to discontinue legal proceedings against SITA concerning the Application for Enforcement Order, in return for SITA giving evidence at the VCAT hearing regarding the satisfactory operation of the landfill.
  4. Colin Taylor of Russell Kennedy represented Peet in proceedings against City of Casey re their refusal to approve amendments to the planning schedule.

They called an expert witness to support their application.

The witness told Colin Taylor about the danger of an explosion caused by gas emissions but Colin Taylor did not question the expert witness about these concerns. He should have even though he was representing the developer. This lack of questioning bought about a decision by VCAT In favour of the developer to go ahead with the proposed changes to the plan.

  1. As VCAT hearings are recorded, my office obtained from VCAT the recording of the hearing and listened to the proceedings. In doing so, it was identified that Dr Bellair did not present VCAT with all relevant facts in relation to the risk of methane gas migration at the Preston landfill site.
  2. An assessment of the audio recording identified that during a lunch adjournment on the first day of the VCAT hearing on 3 May 2004, microphones in the hearing room recorded Dr Bellair’s conversation with Mr Colin Taylor of Russell Kennedy Lawyers, representing Peet, and Mr Brenton Downing, Project Manager for Peet, regarding the risks associated with methane gas migration. For an unknown reason, the recording device was not turned off during the lunch adjournment. Dr Bellair said during the adjournment: If the gas goes sideways if it goes into the surrounding areas it’s going to filter up. The only problem’s been where you’ve got basements or cellars and the gas can go into basements and there is an explosion risk. This happened at the Preston landfill at the Target [retail store], it was in a hotel or somewhere. They have a potential explosion risk – I think they even had an explosion.
  3. My investigators provided Dr Bellair with the opportunity to listen to the relevant section of the VCAT recording. He has since stated:

I was able to confirm that all but the last … words (‘I think they even had an explosion’) of the extract presented … accurately reflect what I said. Despite having the relevant part of the recording replayed at least four times, and listening intently, I am unable to confirm that I (or anyone else) spoke the last … words attributed to me …

  1. I consider that the statement attributed to Dr Bellair (‘I think they even had an explosion’) is an accurate record of what he said during the lunch adjournment on the first day of the VCAT hearing on 3 May 2004.
  2. Dr Bellair was questioned at interview about why he failed at the VCAT hearing to mention the explosion and fire linked to the former Preston municipal landfill site, in relation to evidence he gave regarding the Summerhill Village residential development. He said during interview:

Because number one, I didn’t know whether that was only anecdotal and I didn’t know whether – I sort of vaguely remembered having heard in the course of being involved in this Summerhill’s estate matter. And it’s outside of my area of expertise. So if I had gone into that [the explosion/fire] I couldn’t have taken it beyond saying that I seemed to recall.

I wouldn’t consider it [the explosion/fire] relevant to the evidence that I was asked to provide or the areas that I was asked to address.

So if I made a misjudgement that’s what it was. There was never any intent to cover that up. My report was dealing with odour.

  1. Dr Bellair has since described his conversation with Mr Taylor and Mr Downing as simply a ‘story’.

He has also stated that:

On further consideration, I stand by the bulk of my initial responses, but do not consider that I made a misjudgement in relation to this matter, based on my knowledge at that time.

  1. Mr Taylor was asked about the conversation he had with Dr Bellair and Mr Downing during the lunch adjournment on the first day of the VCAT hearing, regarding the risk of explosion caused by methane gas. He said:

I don’t remember it [the conversation]. But I was aware; as I think everyone was, would be and as the Tribunal surely was, that there is a potential danger of this gas exploding.

The win at all costs adversarial culture displayed by Colin Taylor of the Melbourne law firm Russell Kennedy when he became complicit with his clients objectives over and above the long term interests of the community who were to live at the Brookland Greens Estate by failing to show any professional integrity and bring up the issue of explosive gas is indicative of a serious failing within the planning decision making process.

In a collaborative forum which a planning tribunal should be, matters endangering human life must be put on the table, the fact that a professional is on one side or the other is irrelevant and if the adversarial culture shown by Colin Taylor of the Melbourne law firm Russell Kennedy is endemic within the planning tribunals held at VCAT problems such as the one that developed at Brookland Greens are guaranteed to re-emerge.

As yet no investigation that I am aware of has been carried out so as the adversarial nature of this forum is addressed.

Working Families Denied Natural Justice

Dear Federal Attorney General

I am writing to you to express my concerns in regards to three letters I have received.

One is from The Victorian Legal Services Commissioner (Letter 1) in which Mr McGarvie states “Victorian Charter Of Human Rights and Responsibilities only applies to Public Authorities. A legal practitioner in private practice does not have to comply.”

This letter is in response to a complaint that I raised with the commissioner regarding the decision by Russell Kennedy/Ian Bult to withhold a letter from my late mother written six years prior to her death which is being used by the lawyer to justify his decisions regarding my family’s inheritance. My mother’s children and grandchildren do not agree with the lawyer’s interpretation of her will and have on many occasions requested a copy of this letter. The non disclosure of this letter allows the the Melbourne law firm Russell Kennedy and the lawyer Ian Bult to remain unaccountable to my family and my mother’s family. The exercise has split my mother’s family and has cost the estate at least $100,000 the majority of which has been appropriated by the Melbourne law firm Russell Kennedy in fees and charges. Through their actions they have been able to exploit our families and have eroded the value of our inheritance whilst simultaneously destroying a well balanced family.

The second is from The Victorian Ombudsman (Letter2) in response to a request for a copy of his report on The Office of the Victorian Legal Services Commissioner which he mentions in his annual report. “I confirm that as the Ombudsman conducts his investigations in private, pursuant to section 17(2) of the Ombudsman Act 1973, this office is unable to confirm or deny the existence of Ombudsman’s reports that are not publicly available.” This report is mentioned in the 2009 annual report of The Victorian Ombudsman.

I have requested this report as it contains 28 recommendations on ways to improve the operations of The Legal Services Commissioner in satisfying consumer needs. The reason I have requested this report is so I can analyse the process used to investigate my complaint and ensure that the complaint was handled in a proper manner. Thus ensuring that the work done by The Legal Services Commissioner on my complaint was carried out in a professional manner. The act of denying me access to this report effectively sends a message that The Office of The Victorian Legal Services Commissioner and the office of the Victorian Attorney General choose to be unaccountable to a consumer such as myself.

The third is from The Victorian Legal Services Commissioner (Letter 3) in response to a freedom of information request in which the Office of The Legal Services Commissioner chooses to withhold 16 of eighteen documents that I have requested.

 The concealment of these documents illustrates how unaccountable the office of the Victorian Legal Services Commissioner is to the Victorian public.

The actions by the law firm have damaged the destiny of my family and have abused our family rights and our human rights.

This would not be such an issue if it were only a one off case, but systemic abuse by lawyers, combined with an antiquated, unaccountable and costly legal processes is damaging many families on a daily basis within Australia. This damage is particularly severe in Family Law proceedings and with regards to deceased estates.

When one becomes aware of the damage that is being wreaked upon families who are entering our judicial process and the financial and social waste to our society, one would expect a responsible government operating in a contemporary liberal democratic state to create a legal process that by its very structure, aimed to assist and help people, who need to resolve their problems via the consumption of its services. One would expect a government would ensure this process and the professionals who work within it, are accountable to their customer base, who are predominately Australian families.

The financial waste caused by our current legal process of family law and deceased estates could well amount to $50 billion per year. The greater part of this wealth is extracted from the capital base of families. The resulting loss of wealth to these families can have no positive outcomes for their future but the wealth does end up with the legal fraternity. This denies working families’ natural justice.

Approximately 150,000 Australians die each year leaving an average estate worth $500,000. Approximately 75 billion per year. Legal costs amount to about 7 billion and a further 12.5 billion is diverted into trusts by the legal profession.

Approximately 90,000 families are processed by The Federal Family Courts at an estimated cost of $30 Billion. (Legal fees of approximately $15 billion and $15 billion is lost through asset redistribution). There are approximately 2200 suicides emanating from these families in distress. They consist of men, women, and children.

The role of government in our contemporary state is to work towards a fair and just society. It stands above the interests of the exploiter and the exploited. Through its evolution it has abolished slavery, evolved a society of universal suffrage and acknowledged the existence of human rights.

Australia was settled as a penal colony and the power imbalance between the convict and other members of the society was absolute. The jailer held the power and the prisoner had no option but to yield to it. The convict was a slave without a commercial value entombed in a prison created by the state.

Through our isolation and our need to survive, we realised the importance of understanding our natural environment and the role of common sense. This realisation shaped the relationship between the convict and the jailer and incorporated common sense into our way of life and governance. This incorporation of common sense into the fabric of our society has made our nation the country it is today.

It would make common sense in my family`s case for the lawyer Ian Bult to fax us a copy of our mother`s letter to him so as he could be accountable to us for his actions.

The initial competing interests in Australian colonial society were between the convicts and those who ran the colony. The exploiters vs. the exploited. This society had little room for the evolution of family rights and the roots of our modern day legal system lie hear.

Fortunately as time passed and our nation invited migrants to these shores our values developed and the role of family as in any society became dominant. Being a Christian society our church bought these families together under the sphere of god and common sense. Our values of family, and our religion intertwined and were embedded in our constitution upon Federation. The connectedness with family has always been the mainstay of this wonderful nation that we live in and is what gives us our strength and our ability to be a tolerant and fair society.

The contempt for mindless authority devoid of common sense is embedded into Australian culture and showed itself during the two world wars that Australian troops became involved with.

One of Government’s main functions is to work towards reducing the exploitation of a powerful and privileged group in this instance; (The legal profession), over a weaker poorly resourced group; (The people who make up our communities).

Our government has been given this power through democratic elections and represents all competing groups without having a bias or a vested interest. Its purpose is too evaluate and act upon situations that work in the best interests of the community. Unfortunately it appears as if our current government which is well endowed with members of the legal profession, appears to have a bias towards the profession.

This is all too apparent when one realises how law reform is carried out within Australia. A committee comprising mainly of lawyer interest groups is formed to investigate matters pertaining to law reform. The vested interests of the legal profession lobby to ensure its interests are protected. This has created an industry that does not use standards, is not accountable to consumers of its products and continues to maintain its reliance on self regulation.

When you ask

  • Why has the Victorian Attorney General Mr Hulls suppressed the Report on The Victorian Legal Services Commissioner by The Victorian Ombudsman?
  • Why won’t the Legal Services Commissioner demand that the Melbourne law firm Russell Kennedy produce the said letter?
  • Why is it that lawyers in private practice who are court appointed and practice the laws proclaimed through acts of parliament in Victoria are not bound by The Victorian Charter of Human Rights?
  • Why is The Victorian Legal Services Commissioner denying full access to his investigatory files in relation to consumer complaints?

Yes in deed, you may well ask, it does make one wonder why a profession seems to be above accountability: like the big banks that brought about the Wall Street crash, no politician could challenge them for one reason or another. It is now however accepted that no group should be without proper governance and answerability for due diligence in the discharge of the duties they are paid to perform least society at large bear the brunt of the irresponsibility.

“All that is necessary for the triumph of evil is that good men do nothing.”

Edmund Burke
Irish orator, philosopher, & politician (1729 – 1797)

In your position as a member of parliament I would request that you ascertain through the Parliament

Is Mr McGarvie`s statement re lawyers in private practice and The Victorian Charter of Human Rights true or is just an interpretation made by and on behalf of our legal elite?

  • Why is our Attorney General Mr Robert Hulls concealing the Victorian

Ombudsman’s Report from the people of Victoria particularly when the Victorian Legal Services Commissioner is fundamental in identifying and addressing systemic abuse by the legal profession?

I believe that our legal profession is obligated to observe our human rights above their own self interest of gathering fees at the expense of family equity. The role of common sense and our Christian values are entwined within our constitution so as to place that caveat on those who practice law within Australia. This is an unwritten and assumed component of our constitution, which should prevent lawyers from empowering themselves over families.

It is the responsibility of our elected parliament, who appoint this profession and who’s Acts they abide by, to work with them to provide a system where:

  • we all have affordable and timely access to justice.
  • The relationship between the legal profession and the consumer has accountability.

The claim by Mr McGarvie that lawyers in private practice do not have to abide by The Victorian Charter of Human Rights is preposterous, especially when one considers, they are dealing in many instances, with peoples and families destinies. The way these matters are handled impacts upon the well being of our communities and our nation for time immemorial

The refusal by The Victorian Ombudsman to release his report on The Victorian Legal Services Commissioner to the public is a retrograde step which will retard our social development. It will prevent public comment on the performance of our legal profession from the consumer perspective which will raise the issue of the Legal professions need to be accountable to all Australians. The attempts to keep this report secret smacks of legal nepotism.

Mr Hulls replaced The Victorian Legal Ombudsman Kate Hammond with the office of The Legal Services Commissioner because her office and the legal profession had irreconcilable differences of opinion. He promised us this move would improve our legal system. The office receives about 2500 complaints a year and only ever acts on about 150 of them. The other 2350 are dismissed. One wonders how many other complaints there were from people who could either not be bothered, were so gutted by the legal process that they had not the energy or fortitude to peruse it and people who through their lack of education or circumstances where not even aware that they had grounds for a complaint. I gather 80% of customers of the legal profession are dissatisfied.

When you combine this information with the statement by The Victorian

Legal Services Commissioner and the refusal by The Victorian Ombudsman to release his report I trust you will empathise with my concerns and act as a good person to restore the balance of power between the legal profession and working families so as to give all Australians access to natural justice.

Yours Sincerely

Diarmuid Hannigan

 

Dear

I am writing to you to express my concerns in regards to three letters I have received.

One is from The Victorian Legal Services Commissioner (Letter 1) in which Mr McGarvie states “The Victorian Charter of Human Rights only applies to Public Authorities. A legal practitioner in private practice does not have to comply.”

This letter is in response to a complaint that I raised with the commissioner regarding the decision by Russell Kennedy/ Ian Bult to withhold a letter from my late mother written six years prior to her death which is being used by the lawyer to justify his decisions regarding my family’s inheritance. My mother’s children and grandchildren do not agree with the lawyer’s interpretation of her will and have on many occasions requested a copy of this letter.  The non disclosure of this letter allows the Melbourne law firm Russell Kennedy and the lawyer Ian Bult to remain unaccountable to my family and my mother’s family.

The exercise has split my mother’s family and has cost the estate at least $100,000 the majority of which has been appropriated by Russell Kennedy in fees and charges.

Through their actions they have been able to exploit our families and have eroded the value of our inheritance whilst simultaneously destroying a well balanced family.

The second is from The Victorian Ombudsman (Letter2) in response to a request for a copy of his report on The Office of the Victorian Legal Services Commissioner which he mentions in his annual report. “I confirm that as the Ombudsman conducts his investigations in private, pursuant to section 17(2) of the Ombudsman Act 1973, this office is unable to confirm or deny the existence of Ombudsmans reports that are not publicly available.” This report is mentioned in the 2009 annual report of The Victorian Ombudsman.

I have requested this report as it contains 28 recommendations on ways to improve the operations of The Legal Services Commissioner in satisfying consumer needs. The reason I have requested this report is so as I can analyse the process used to investigate my complaint and ensure that the complaint was handled in a proper manner. Thus ensuring that the work done by the Legal Services Commissioner on my complaint was carried out in a professional manner. By denying me access to this report effectively sends a message that the office of the Victorian Legal Services Commissioner and the office of the Victorian Attorney General chose to be unaccountable to a consumer such as myself.

The third is from The Victorian Legal Services Commissioner (Letter 3) in response to a freedom of information request in which the Office of the legal services commissioner chooses to with hold 16 of eighteen documents that I have requested. The concealment of these documents illustrates how unaccountable the office of the Victorian Legal Services Commissioner is to the Victorian public.

The actions by the law firm have damaged the destiny of my family and have abused our family rights and our human rights.

This would not be such an issue if it were only a one off case but systemic abuse by lawyers and our antiquated legal process of deceased estates is occurring on a large scale through out our nation and is negatively impacting upon many Australian families. When one becomes aware of the damage that is being wreaked upon families who are entering the federal family courts as a result of relationship breakdowns the damage is magnified and is contributing to our national suicide rate.

The role of government in our contemporary state is to work towards a fair and just society. It stands above the interests of the exploiter and the exploited. Through its evolution it has abolished slavery, evolved a society of universal suffrage and acknowledged the existence of human rights. Estimated annual waste of approximately $30 billion.

Please note that Australia was settled as a penal colony and its convicts were its slaves. Slaves without even the relationship the master places upon the amount paid for the slave and the value of the slave in relation to their work output. The convict was a slave without a commercial value entombed in a prison created by the state. The initial competing interests in Australian colonial society were between the convicts and those who ran the colony. The exploiters vs the exploited.  This society has little room for the evolution of family rights and the roots of our modern day legal system lie hear.

Fortunately as time passed and our nation invited migrants to these shores our values developed and the role of family as in any society became dominant. Being a Christian society our church bought these families together under the sphere of god.  Our values of family, and our religion intertwined and were embedded in our constitution upon Federation.

The contempt for mindless authority is well embedded within Australian culture and showed itself during the two world wars that Australian troops became involved with. The connectedness with family has always been the mainstay of this wonderful nation that we live in and is what gives us our strength and our ability to be a tolerant and fair society.

In regards to the relationship our government has with the legal profession and its opposing entity the consumer of its products. Government’s role is to work towards reducing the exploitation of a powerful and privileged group (The legal profession) over a weaker poorly resourced group (The people who make up our communities).  Our government has been given this power through democratic elections and represents all competing groups without having a bias or a vested interest. Its purpose is evaluate and act upon situations that work in the best interests of the community.

Unfortunately it appears as if our current government which is well undowered with members of the legal profession appears to have a bias towards the profession. This is all too apparent when one realises how law reform is carried out within Australia. A committee comprising mainly of lawyer interest groups is formed to investigate matters pertaining to law reform. The vested interests of the legal profession lobby to ensure its interests are protected. This has created an industry that does not use standards, is not accountable to consumers of its products and continues to maintain its reliance on self regulation.

When you ask

  • Why has the Victorian Attorney General Mr Hulls suppressed the Report on The Victorian Legal Services Commissioner by The Victorian Ombudsman?
  • Why won’t the Legal Services Commissioner demand that Russell Kennedy produce the said letter.
  • Why is it that lawyers in private practice who are court appointed. the courts and the laws of our nation proclaimed through acts of parliament are not bound by The Victorian Charter of Human Rights?
  • When you ask why won’t The Victorian Legal Services Commission allow full access to his investigatory files?

The simple answer to all three questions is:

To protect the vested interests of the legal industry.

These actions by the agents of the government are impeding the development of our community and are allowing a powerful and privileged group to exploit many normal Australians. This exploitation although not slavery or imprisonment within a penal settlement is just as damaging to the individuals and families who are and have been subjected to it.

In your position as a member of parliament I would request that you ascertain through the parliament

  • Is Mr McGarvie`s statement re lawyers in private practice and The Victorian Charter of Human Rights true or is just an interpretation made by and on behalf of our legal elite?
  • Why it is that our Attorney General Mr Robert Hulls is concealing the Victorian Ombudsman’s Report from the people of Victoria particularly when the Victorian Legal Services Commissioner is fundamental in identifying and addressing systemic abuse by the legal profession?

I believe that our legal profession is obligated to observe our human rights above their own self interest of gathering fees at the expense of family equity. I believe that that this an unwritten and assumed component of our constitution. I believe it is the responsibility of our elected parliament who appointed this profession and whose acts they abide by: to work with them to provide a system where by we all have affordability and timely access to justice.

The claim by Mr McGarvie that lawyers in private practice do not have to abide by The Victorian Charter of Human Rights is preposterous especially when one considers they are dealing in many instances with peoples and families destinies. The way these matters are handled impacts upon the well being of our communities and our nation.

The refusal by The Victorian Ombudsman to release his report to the public there by restricting public input mechanisms required to improve the functions of Legal Services Commissioner smacks of legal nepotism.

Mr Hulls replaced The Victorian Legal Ombudsman Kate Hammond with the office of the legal Services Commissioner because her office and the legal profession had irreconcilable differences of opinion. He promised us this move would improve our legal system. The office receives about 2500 complaints a year and only ever acts on about 150 of them. The other 2350 are dismissed. One wonders how many other complaints there were from people who could either not be bothered, were so gutted by the legal process that they had not the energy or fortitude to peruse it and people who through their lack of education or circumstances where not even aware that they had grounds for a complaint. I gather 80% of customers of the legal profession are dissatisfied. When you combine this information with the statement by The Victorian Legal Services Commissioner and the refusal by The Victorian Ombudsman to release his report I trust you will empathise with my concerns and act.

Yours Sincerely

Diarmuid Hannigan

 

Legal Services Commissioner Reply pg1

Legal Services Commissioner Reply pg2

Diarmuid Hannigan236                                                                                    Smith StreetCollingwood. Victoria 306603 94195044 charada@mira,net                                                                    Thursday 18th February 2010

The Victorian Ombudsman                                                                          Mr George Brouwer

Dear Mr Brouwer.

I am writing to request a copy of your report on the Victorian Legal Services Commissioner. I understand this report contains 28 recommendations pertaining to the operation of the Victorian Legal Services Commissioner.

This report will assist me in responding to The Victorian Legal Services Commissioner and a submission to The Council of Australian Governments involvement in the reform of regulation affecting the legal profession in relation to the management of deceased estates by legal professionals.

My own dilemma although appearing trivial, goes to the core of how we as a society treat each others within a legal framework and the obligations we have to in order to avoid the abuse of human rights, family rights and inheritance rights.

The reason I have been led into this legal maize has been caused by a lawyer who along with my sister were appointed executors of my late mother’s estate. Prior to probate being granted a disagreement had occurred between the beneficiaries of the estate (My mother’s children) and the lawyer. My sister, the co executor requested a copy of a letter written to him by my mother six years prior to her death that the lawyer said he had in his possession. He refused to show her the letter and has refused all other requests to show the letter claiming legal client privilege. His claim has no rational basis whatsoever apart from the power he holds in his position as executor and is clearly positioned to advantage his financial interests.

 As a result of the lawyers treatment of my sister and her fragile state she did not take up her position as Executor which has left the family in a powerless position. The fact that the family has not been allowed to interpret their mother’s wishes (letter) has led to a prolonged and painful experience.

I have approached The Victorian Legal Services Commissioner regarding my concerns and as yet I have been unable to obtain a copy of this letter. I have no desire to begin litigation as it will further the abuse that has already been wrought upon my mother’s estate by the lawyer and his firm. I believe that it is an inheritance right and therefore a family right to have access to information that determines ones destiny and that of ones family. It is a fundamental human right and is an integral component of a civilised society governed by the rule of law.  Inheritance rights and their relationship to law are the reason law was founded.

I have enclosed a copy of a letter I have received from the Victorian Legal Services Commissioner and raise my concerns to you regarding Paragraph five. A legal practitioner in private practice is not required to comply with the charter. (The Victorian Charter of Human Rights).

There appears to be a major dislocation between public perception and reality in regards to this issue. I ask the question. How does the government ever hope to instil a philosophy of human rights respect throughout our community if the people (lawyers) who are working the legal system are exempt? Particularly when these people are highly paid professionals who are dealing with the destinies of families.

I look forward to your response and to the opportunity of reading your report. I am aware the report has not been tabled in parliament but since the role of the Victorian Legal Services Commissioner is a fundamental instrument in shaping our Legal services industry so as it becomes cost efficient affordable and of benefit to our community the public interest becomes a more important factor.

Yours Sincerely

Diarmuid Hannigan.

ombudsman reply 001

 

Victorian Legal Services Commissioner FOI1

Victorian Legal Services Commissioner FOI2

Victorian Legal Services Commissioner FOI3

Victorian Legal Services Commissioner FOI4

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