The Victorian Attorney General Lawyer No 1
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To The Victorian Attorney General Martin Pakula
20th February 2014
From Diarmuid Hannigan 236 Smith Street Collingwood Victoria 3066 Tel 94195044
To the Hon. Martin Pakula MP 20 02 2015 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.
From The Victorian Attorney General Martin Pakula 14th December 2014
To The Victorian Attorney General Martin Pakula 14th December 2014
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 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 practicing 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 practice. 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
From The Victorian Attorney General 25th August 2014
To The Victorian Attorney General 7th June 2014
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.
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. .
Victorian Ombudsmans Report on Brookland Green`s Estate.
1.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.
- 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:
- 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.
- 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.
- 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: 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.
Letter to The Victorian Attorney General Attorney General Robert Clark
Sunday 29th January 2012
Diarmuid Hannigan 236 Smith Street Collingwood. Victoria 3066 03 94195044 charada@mira,net
To The Hon Robert Clark
Thank you for responding to my concerns regarding legal practitioners who are acting as executors. Your acknowledgment that this matter will have long lasting negative implications for my family and my mother’s family is appreciated.
As you suggested, I went ahead and provided the Victorian Legal Services Commissioner with new evidence and a detailed submission as to why Russell Kennedy and Ian Bult had behaved dishonestly and breached their fiduciary obligations to my mother and her children by lying to those children about the contents of the new evidence. I enclose the Legal Services Commissioner`s response and my reply to that response.
As Victoria`s head lawyer and the person upon whose shoulders the reputation of the legal profession rests, I sincerely hope you can see the need to address your profession and its relationship with the regulator The Victorian Legal Services Commissioner. As I have already stated, the power imbalance between families and the legal profession needs to be changed to favour families instead of lawyer’s pockets. The regulator, the Victorian Legal Services Commissioner needs to be accountable to Victorian families. The only way that can happen is through government influence.
I raise the following concern regarding your response to the general matters I raised. I bought up the problem the legal profession has with the Trade Practices Act in regards to misleading and deceptive conduct. I understand that the law has been shaped to ensure lawyers who are acting as executors are not bound by the Legal Professional Act 2004. The problem I see is that there is no clear instruction to a person who nominates a lawyer as an executor, that the lawyer is no longer acting as a lawyer when they become an executor, and yet the person nominating the lawyer as an executor is always under the perception that the lawyer is a lawyer, hence the misleading and deceptive conduct.
A lawyer would need to introduce a clause within the will stating:
I the testator nominate Joe Blogs “Lawyer” and I am fully aware that when Joe Blogs becomes my executor Joe will no longer be a lawyer and I am now hiring him as an executor and he will no longer be bound by the Legal Professional Act of 2004 and that The Legal Services Commissioner will therefore not have the power to investigate any complaints bought against him by the beneficiaries of the estate.
As an absolute minimum for him not be seen to be engaging in false and misleading conduct by misrepresenting himself and the legal profession (along with its perception of public trust) to the person nominating the lawyer as an executor.
In relation to the development of law reform within Victoria, you may wish to consider looking into the over representation of the legal profession when it comes to reshaping our laws and how that influence is permitting an out-dated inefficient and expensive system to perpetuate itself at the expense of Victorian families.
I would suggest that one way to address this imbalance in the shaping of law would be to fund and resource representation from other groups from outside of the legal profession who have the concerns of Victorian families as their priority.
Again I thank you for your response and trust you will continue to work hard so as to make Victoria a better place for all our families to live in.
Letter From The Victorian Attorney General Robert Hulls
12th July 2010
Working Families, Denied Natural Justice an Open Letter
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 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 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 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.”
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.
Letter From The Victorian Attorney General Robert Hulls
20th June 2009
Letter to The Victorian Attorney General Robert Hulls
24th May 2009
Diarmuid Hannigan 236 Smith Street Collingwood. Victoria 3066 03 94195044 charada@mira,net 24th May 2009
To The Hon Rob Hulls MP The Attorney General For Victoria
Thank you for responding to my letter of 18th April 2009.
In your reply you have stated “The Department of Justice is aware of the specific concerns that you have raised in your letter, and will continue to take into account the need to reduce costs, delay, and the complexity of litigation, in line with the Attorney-General’s Justice Statement 2.
Unfortunately although commendable your reply does not address the issues that I have raised in my four questions. Issues that are fundamental to the protection of the human rights of families and the provision of consumer protection for these families, as consumers of legal services.
The four questions deal with:
- 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 rather than the Supreme Court.
These four issues and the four specific questions when answered would begin to assure the Australian public that any reforms that are made to our current process of dealing with deceased estates would be effective in reducing costs, delay, and the complexity of litigation.
Hence my concern that you have currently avoided answering the questions and my concern that any reforms to our ascendancy laws will amount to very little change for Australian families.
I would appreciate a response that assures me that the issues laid out in my four questions are being addressed by the National Committee for Uniform Ascendency Laws.
Cc Senator Steve Fielding Senator Bob Brown Senator Nick Xenophon The National Committee for Uniform Ascendency Laws.
Letter to The Victorian Attorney General Robert Hulls
20th May 2009
Letter to The Victorian Attorney General Robert Hulls
18th April 2009
Diarmuid Hannigan 236 Smith Street Collingwood. Victoria 3066 03 94195044 charada@mira,net 18th April 2009
To The Hon Rob Hulls MP The Attorney General For Victoria
Thank you for responding to my letter of 8 November 2008.
I have outlined the following questions that were contained in my letter which you have not answered.
(1) 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 who would assist in determining the wishes of the deceased?
(2) 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?
(3) 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?
(4) 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?
The reasons I put them to you again and request an answer are as follows.
(1) The Queensland Law Reform Commission currently has the ability to address these issues.
(2) The withholding of information by lawyer/executors from family member beneficiaries and executors can be viewed as an abuse of their human rights. Please refer to the following.
The Charter of Human Rights and responsibilities Protection of Freedoms and Rights for Everyone in Victoria.
“At the heart of Victoria’s Charter of Human Rights and responsibilities is respect: the belief that everyone is entitled as we say, to ‘a fair go’.
Recognition and equality before the law
People have the right to equality before the law.
Protection of families and children
Families, as the fundamental group unit of society, are entitled to be protected by society and the State.
Privacy and Reputation
A person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with and the right not to have his or her reputation unlawfully attacked.
3) The Victorian evidence act states:
121 Loss of client legal privilege—generally
(1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died.
- 120 Chapter 3—Admissibility of Evidence Evidence Act 2008 No. 47 of 2008 97 (2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court. (3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person. (4) Lawyer/Executors who withhold information that is essential for determining the wishes of the deceased from family member executors and beneficiaries could be seen to be breaching their fiduciary duties to the deceased estate and could be perceived by the public as engaging in misleading and deceptive conduct in order to advantage themselves by increasing their fees and charges earned from the estate. This doubt in the public’s mind which is corroborated by the carnage that is occurring in the courts and the number of complaints to the legal services commissioner should be of concern to all of us.
One wonders if the problem is endemic?
(5) Only government can create mechanisms to protect families from unscrupulous legal professions which will result in a reduction in the damage caused to many families within our community during the settlement of their inheritance.
(6) The secrecy that is held by lawyer/executors leaves them unaccountable to the beneficiaries of the deceased estate and provides for an opportunity to defraud or abuse the funds of the estate without any accountability at all and creates a system where financial abuse of the deceased can go undetected.
I trust that as the duly elected representative of the people of Victoria responsible for this area of law, that you have the best interests of our community at heart and will realise that the issue of inheritance distribution is fundamental to the long term workings of healthy families. That to protect those interests long term goes above that of accommodating the vested interests of a small group of privileged people and will ultimately improve the perception of the legal profession by the general populous.
I look forward to your answers.
(B Mech Eng)
Letter from The Victorian Attorney General Robert Hulls
Letter to The Victorian Attorney General Robert Hulls
8th November 2008
Diarmuid Hannigan 236 Smith Street Collingwood. Victoria 3066 03 94195044 charada@mira,net Sunday 8th November 2008
To The Hon Rob Hulls MP The Attorney General For Victoria
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.
- 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.
- 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.
- 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.
- This situation puts the lawyer/executor in a more powerful position than the family member executor when determining the wishes of the deceased.
- 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?
- 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.
Mr. Diarmuid Hannigan
CC The Attorney General. The Hon Robert McClelland MP The New South Wales Attorney General. Hon John Hatzistergos MP The Western Australian Attorney General. Hon Christine Porter MP The Queensland Attorney General. Hon Kerry Shine MP The South Australian Attorney General. Hon Michael Atkinson MP