Victorian Attorney General
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At the end of 2013 the Victorian Law Reform Commission completed a lengthy report named Succession Law Reform. A part of that report dealt with the role of lawyers who act as executors. The reason this report dealt with this particular issue was due to a large number of complaints from families who had been robbed by lawyers who were acting as executors. The matters were discussed in a round table discussion the Legal Services Commission conducted.
The Law Reform Commission finally realised that lawyers who acted as executors had to be included under the Legal Professional Act of 2004 because if they were not they would be engaging in misleading and deceptive conduct as their clients who are nominating them as executors think they are lawyers and therefore assume they are bound by the legal regulator. As yet now two and a half years later the Attorney General and Lawyer inc are still thinking about getting around to writing guidelines for lawyers who are executors and non of the regulators or any of our politicians from the major parties give a toss that this has not occurred. In other words these people who are supposed to be ensuring the interests of Australian families are looked after do not give a damn about your family of mine because if they did and there was a buck or a vote in it they would be there as quick as you see a rat go up a drainpipe.
The Victorian Attorney Generals attitude as seen by its response is well I will get around to that when I feel like and who are you to bring up the issue which in effect means he will not ever get around to it and unscrupulous and unaccountable lawyers such as Ian Bult and the members of Russell Kennedy will go on committing acts of fiscal necrophilia on innocent and unsuspecting families such as my own mother`s family. Those families will never be able to discover the true wishes of their own parents as the legal costs in the Supreme Court of Victoria are prohibitive and if one is to self represent against a law firm they will defend with a Silk and you will not be allowed to wear a wig,
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.
- 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: ARE THE PIGS WHO CHANGED THE RULES, NOW WALKING ON TWO LEGS? I AM AFRAID, THEY ARE!
This is the pathetic response from the Victorian Attorney General.
This is the hand ball from the minister for consumer affairs Jane Garret another Lawyer.
This is the response from The Federal Attorney General George Brandis. Another handballer.
From Diarmuid Hannigan 236 Smith Street Collingwood Victoria 3066 Tel 94195044
To the Hon. Martin Pakula MP 14 12 14 Attorney General Victoria
Thank you for responding to my letter.
Unfortunately the response I have received does not address the three concerns I have raised, concerns that impact in a devastating manner on Victorian Families.
I gather the Victorian Attorney General`s Department does acknowledge its responsibilities to ensuring the health and wellbeing of Victorian families is held highest in its objectives.
In my letter to you of 14 12 14 I explained why it was impossible for the Attorney General`s Department to disassociate itself from my concerns supported with evidence and yet the response dissociates the Attorney General from my concerns.
To add weight to these concerns and to support them I have attached an open letter regarding the Report by the Productivity Commission titled Access to Justice which has been tabled in the Federal Parliament Dec 2014. Which States: 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”
In my own matter. The members of law firm Russell Kennedy were named executors to my mother’s will along with my sister. A member of Russell Kennedy who was her solicitor lied to my mother’s children about her wishes and concealed the evidence for a period of seven years. It is obvious to my mother`s children that he did this so as to generate fees and charges for his firm from the estate. His actions are detailed in a book Lawyers or Grave Robbers?
For a professional person in a paid position of trust to stoop to such a low in moral dignity sets a new level, one that even the devil would not stoop to. The fact that the regulators of the legal profession have not acted against such moral depravity is of concern to myself and to all members of Australian families.(I trust you acknowledge this point.) As by not acting against it can only suggest this behaviour is acceptable and is allowable within the legal profession. It follows the ethos I heard from a lawyer. “A good estate is one where there is little left for the beneficiaries to waste.” Note the statement does not contain even a nano particle of emotional substance.
I trust you will reread my letter and respond appropriately as the matters I raise are serious and do adversely affect Victorian Families.
To the Hon. Martin Pakula MP 26 01 26 Attorney General Victoria
In August of 2013 the Victorian Law Reform Commission tabled its report on Succession Law Reform to the Victorian Parliament.
In mid-December of 2014 The Productivity Commission tabled its report on Access to Justice to the Federal Parliament.
Deep within the Productivity Commissions Access to Justice Report it mentions that some recommendations with regards to law reform are not adopted.
This raised my concerns relating to certain recommendations held within the Succession Law Reform Report pertaining to the regulation of Lawyers who are appointed as executors which I have copied below.
Due to my concerns I phoned the Law Institute of Victoria, The Victorian Law Reform Commission and the Law Foundation in an attempt to obtain the documents referred to in recommendations 61 and 62. Unfortunately my efforts bore no fruit.
I asked the Law Reform Commission who is the responsible body to whom I should raise my concerns with and they said it was the Attorney Generals responsibility.
Hence I am asking you as to whether or not recommendations 61 and 62 have been implemented along with recommendation 59 and how I may obtain a copy of the new documents referred to in recommendation 62.
Your assistance in this matter will be greatly appreciated
Chapter 7 Executors’ costs and commission
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).
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.
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.
This is how our attorney General Treats the issue of family when it comes to law making in Australia. The ATTORNEY General does not care that the GUIDELINES for Lawyers who are Executors has not been written. The letter below as far as he is concerned answers the letter above when it does nothing of the kind.
From Diarmuid Hannigan 236 Smith Street Collingwood Victoria 3066 Tel 94195044
To the Hon. Martin Pakula MP 14 12 14 Attorney General Victoria
I am following up on a letter I sent to Robert Clark on the 14 09 14. As yet I have not received a response. I gather some correspondence that was not dealt with prior to the change of government has been referred back to the relevant departments. I am sending you a copy of my letter to Robert Clark as I would appreciate a response.
Copy of the original letter.
From Diarmuid Hannigan 236 Smith Street Collingwood Victoria 3066 Tel 94195044
To the Hon. Robert Clark MP 14 09 14 Attorney General Victoria
Thank you for responding to the letter I sent to you on the 8th of June 2014. I am replying to the response I received from your office on 25th of August 2014 copy attached.
We are discussing three fundamental components that relate to the relationship between the consumers of legal services (the citizens of Victoria), and the providers of those services, that is the legal industry. The Attorney General`s Department is responsible for the integrity of those services so as the Victorian citizens can maintain their trust in the rule of law.
The three fundamental components are.
1 The integrity of the body created by the government to administer complaints against lawyers by the public: The office of the Victorian Legal Services Commissioner.
- The integrity of the Department of Justice, through its failure to address the primary cause of the Brookland Greens Estate fiasco.
- The integrity of the legal industry through its failure to acknowledge its responsibilities to consumers of its services under the Trade Practices Act of 1974.
- The Integrity of the Legal Services Commissioner.
In 1996 the office of The Victorian Legal Ombudsman was created.
“The first Legal Ombudsman, Marg O’Donnell, established a regulatory body based on principles of propriety, integrity and fairness. Ably assisted by Deputy Janet Cohen and a committed staff, Marg O’Donnell put in place a complaint handling system with two core purposes in mind – the protection of the public and the betterment of the legal profession.”
In 2004 The Legal Ombudsman`s office was replaced by the office of the Victorian Legal Services Commissioner. The outgoing Legal Ombudsman in her 2003 Annual Report pays a great deal of attention to the integrity of the new office that will regulate lawyer behaviour.
Please refer to Refer message from the Legal Ombudsman
The Legal Services Commissioner will be the sole receiver of all complaints. As I have already stated, this is a positive step that will end confusion for complainants. However, while the commissioner will receive all complaints it is not clear what will happen to these complaints after they have been received.
The new legislation contains a provision for the commissioner to delegate powers and functions. This means the commissioner will be able to refer complaints to the lawyers’ associations for investigation. It is also possible the commissioner could delegate to these professional associations the power to prosecute.
Or any other powers for that matter. This provision to delegate has the potential to undermine the whole purpose of reform. We could end up with a system less independent than what we have now.
In the hands of a strong and forthright commissioner, the power to delegate would not be a problem because this commissioner would be careful to exercise that power in a judicious and responsible way.
But we should not have to rely on the strength of an individual to uphold the integrity of a system – integrity must be built into the system.
Other features of the new system will make it difficult for even a strong and forthright commissioner to remain independent.
In addition to being responsible for complaint handling, the Legal Services Commissioner will also be CEO of the Legal Services Board, the body responsible for other regulatory functions such as issuing practising certificates and operating the fidelity fund. The board will comprise three members of the legal profession, three non-lawyers and a chairperson who may or may not be a lawyer.
The commissioner is supposed to be independent of the board with regard to complaint handling; however it is difficult to see how this will work in practise. The commissioner will be reappointable by and answerable to the board on all other matters including expenditure. It will be important for the commissioner to stay in the board’s favour, so there is the very real risk that this could influence the commissioner’s complaint handling role.
A possible scenario: under pressure from the lawyers on the board, the commissioner decides to delegate all investigations and prosecutions to the professional associations. If anyone thinks that is a worst-case scenario, it is worth noting that it is nothing more than what the professional associations lobbied for in the review process.
As it is currently proposed, the new system will only work in the hands of a very strong commissioner prepared to stare down the lawyers’ professional associations. Such strength and integrity will be hard to find in an individual. They are virtues that should have been built into the system.
In closing, it has been a great privilege to serve in this role for the last 5 years and to have played a part in such an important area of consumer protection.
During this transition period the Attorney Generals Department had a responsibility to the Victorian Public through its duty of care to ensure that the new system was working in the interests of the public. By 2009 the Victorian Ombudsman received 95 complaints from the public against the Legal Services Commissioner. So great were his concerns that he conducted his own motion report and published his findings in his 2009 annual report in which he stated.
“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.”
Clearly this report exposes the Attorney General`s Department and the Legal Industry to a claim by the Victorian public that they have breached their duty of care by not closely monitoring the inner workings of the Legal Services Commissioner`s Office during this important transition period. It exposes these entities to claims of incompetence coupled with extreme bias in favour of the legal profession at the expense of the public.
The refusal of the entities involved to make the Ombudsman’s report available to the public when truth can only be created through transparency which allows the public to trust the integrity of the system is contrary to the basic principles of common sense.
The failure of the Attorney General`s Department to address the issue of reopening cases based on merit and handballing it into the federal arena where it appears to have become lost in space is a corruption of the process.
- The integrity of the Department of Justice, through its failure to address the primary cause of the Brookland Greens Estate fiasco.
As a result of methane intrusion into houses built on the Brookland Greens Estate the Attorney General commissioned the Victorian Ombudsman to investigate.
When reading his report which is available to the public it is evident that the primary cause of the problem occurred when Colin Taylor of Russell Kennedy failed his duty to the court by not informing it of the lunch time communications between himself and an expert witness, inadvertently caught on tape, that there could be a risk of an explosion of methane gas in a building built some distance from a land fill site, as gas can travel sideways under the ground as well as up and down.
1000 homes affected, a bill to the Victorian public of 150 million dollars and a serious failure in the integrity of our land management system through VCAT.
Serious failures in the integrity of our land management system through VCAT are the responsibility of the Attorney General`s Department who have the power to address these matters.
The integrity of our land management system is the basis upon which our communities are built. The Attorney General has a duty of care to the Victorian public to insure we can trust this system and when an abuse of process occurs and it is discovered in a report commissioned by the Attorney General’s Depart it is the responsibility of the department to act, not a member of the public.
3 The integrity of the legal industry through its failure to acknowledge its responsibilities to consumers of its services under the Trade Practices Act of 1974.
In your response you assure the public that under the new legislation the Legal Services Commissioner can deal with consumer matters. I assume that means the word consumer will enter the Legal Services Commissioner`s diction. Unfortunately that does not deal with the matter I raised which is that the word consumer should have been a part of the legal diction as far back as 1974 when describing people who use legal services as consumers of those services instead of clients who do not have consumer rights.
What is of greater concern is the fact that an Office that was created to regulate the legal profession in 2004 about whose structure the proceeding regulator had raised concerns and was found to be failing by the Victorian Ombudsman in 2009 is now given the responsibility of dealing with consumer complaints against lawyers?
You appear to reason that because I have received correspondence from Consumer Affairs Victoria that the matter has been investigated without bias towards the legal industry in a competent manner that is free from corruption.
Unfortunately nothing could be further from the truth. As in fact the matters I have raised regarding the conduct of Russell Kennedy when managing my mother`s estate have never been investigated either by Consumer Affairs Victoria or by the Legal Services Commissioner and any of their findings are based upon opinion not facts, opinion that smacks of extreme bias and incompetence that appears to be corrupted by vested interest.
In summing up:
The provision of legal services to the citizens of Victoria affects us all. The quality of those services is dependent upon how effective the regulator performs in eradicating bad apples. The influences that drive the improvement of quality are courage, compassion and intellect; its inhibitors are incompetence, extreme bias and corruption.
I look forward to your reply
To the Hon Robert Clark MP 07 06 14 Attorney General Victoria
I am writing to you with the following serious concerns with regards to the way the regulation of the legal industry is being administered within the Victorian Department of Justice.
These agencies include:
- The Office of the Legal Services Commissioner. (LSC).
- The Department of Consumer Affairs Victoria (CAV).
- The office of the Freedom of Information Commissioner. (FOIC).
My concerns arise due to the following facts.
- The failure of the Department of Justice to table to the Parliament the own motion report by The Victorian ombudsman on the LSC (as mentioned in his 2009 annual report) so as it could be made available to the public.
- Due to the fact that this report was never tabled to the parliament the Victorian public are not aware of the 28 recommendations contained in the report and are thus not able to know if the LSC has implemented those recommendations and whether or not the implementation of these recommendations have had the required effect of ensuring the Victorian public that the LSC is honouring its obligations to them. By analysing the limited information available in the Ombudsman’s annual report one can gleam the following: The Ombudsman requested that the Legal Services Commissioner be able to reopen his files on some complaints so as they could be properly investigated. I gather from the correspondence received from the LSC that has as yet not occurred please refer to letter dated 14 01 2012. (attachment Censored documents) The Ombudsman identified that the LSC was not aware of its own powers in certain instances and I enclose a letter dated 20 02 2012 that stated that the LSC does not have the power to investigate law firms, when in fact Victoria is the only state in Australia were the legal services commissioner under the Legal Professional Act of 2004 does have the power to investigate law firms. The Ombudsman identified that the LSC case files lacked reasons for decisions. I enclose a letter dated 25 01 2012 which also states a decision without reasons.
- The failure of CAV to facilitate a voluntary mediation between my mother`s family and the law firm Russell Kennedy leads me to believe that they are loath to even tip their toe in the water as it would set a precedent that the legal Industry in Victoria are bound by Australian Consumer law and that the profession is put on notice that Misleading and deceptive conduct, unconscionable conduct and unfair empowerment in a contract will not be tolerated by the regulator because it will open the flood gates for a tsunami of consumers who have had their consumer rights abused when employing the services of the legal profession.
- The failure of The Law Reform Commission in its enquiry into Succession Law Reform to clearly identify that all professional legal work done in this area must be made accountable to ACL.
- The failure of the Department of Justice and the responsible regulators to bring any disciplinary action against Russell Kennedy and Colin Taylor for their role in the Brookland Greens Estate fiasco which has cost the Victorian tax payer in order of $150 Million due to Colin Taylors failure to honour his obligations to the court at VCAT in this matter. If Colin Taylor had informed the court of what he had been told by the expert witness at lunch time about the dangers of an explosion of methane gas, IE the potential danger to human life and more particularly human life involving family homes where children live and communities are formed, the whole fiasco would have been averted. The fact that no disciplinary action has occurred means that at the moment disclosure of a potentially life threatening situation involving whole families can de concealed from the court by one or other of the professional participates and that is acceptable behaviour. The problem with this is that it then puts the credibility of the whole planning appeals process into question. In this case you have the evidence to show the effect was a disaster. 1000 family homes were effected and it has cost the state at least $150 million dollars. Fortunately no lives have been lost as a result of an explosion but there may have been a few lost due to the social disruption the whole fiasco has created.
- Since property development seems to be one of the main stays of our new economy I would assume that the integrity of the planning process was paramount in the minds of the government so as to assure the families who are going to build their communities and families that the land they build their homes on is safe to live on.
I realise this is a lot to absorb but it is indicative of the mess that a self-regulating legal profession can create.
As a mere minion, I would at least expect that a democratically elected government that is very much a part of the facilitation process of legal colonisation of the Australian people, would at the very least ensure the integrity of the colonial masters (that is the lawyers) be respected by those who are colonised, through a system of truth seeking, by transparent process, in order to obtain a culture of trust.
The relationship between the law firm Russell Kennedy and the Victorian Government appear to have influenced the outcomes in regards to the Brookland Greens fiasco. Russell Kennedy sits on five of the special panels that advise the Victorian Government. The firm is dominant in the aged care and retirement living industry and is directly involved in developing legislation in this area. As I have previously stated: In the Brookland Greens matter not only did a disaster eventuate but the evidence that is the VCAT recording over the lunch break was discovered by the Victorian Ombudsman and was mentioned in detail in his report.
In other words the goose was cooked and there was a record of how the goose came to be cooked and yet the regulators have not prosecuted the goose cooker even though goose cooking is not allowed. What this means is that there is a special relationship between the goose cooker and the regulator, in many countries this is called corruption.
So when will the Victorian public get to see:
- The own motion report the Victorian Ombudsman did on the Victorian Legal Services Commissioner?
- Whether or not the 28 recommendations contained within that report have been implemented. The progress the implementation these recommendations have had in alleviating consumers concerns regarding services they have been supplied by the legal profession?
- Consumer Affairs Victoria makes a commitment to Victorian consumers so as to protect their consumer rights when engaging the services of the legal profession?
- Succession laws that ensure that lawyers practicing in this area are bound by Australian Consumer law and are therefore prevented from engaging in, misleading and deceptive conduct, unconscionable conduct and engaging in unfair empowerment in a contract?
- Colin Taylor of Russell Kennedy disciplined for his failure in his duty to the court regarding the Brookland Greens fiasco where the evidence is captured on the VCAT audio. Do that this error never ever happens again.
I trust you will see the relevance of these matters and have attached an open letter to you which contains details of the Ombudsman’s report on Brookland Greens and where Russell Kennedy was involved. The open letter contains other information pertaining to how our legal system is shaped and formed and the reasons behind its current failings. It also contains some suggestions on how to remedy the current mess. I would hope that with an election coming up the accountability of our legal system would come to the fore front of the political agenda.
Thankyou for reading my letter and let us hope we see some action instead of the never ending round of letters that only confirm the obfuscation of the responsibilities our government regulators owe to the citizens of Victoria.
CC All members of the Victorian Parliament.
My contact details:
236 Smith Street Collingwood 3066. Tel 94195044, email firstname.lastname@example.org
Brooklands Green Estate Shire of Casey. Review of Ombudsman’s report
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 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 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. 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 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 Russell Kennedy in its final form does not mention land fill only sand extraction.
926 The Section 173 Agreement was drafted by 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: 928My 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 …
- 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.
- 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 Summerhills 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.
19 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.
- 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: