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A Letter to the Victorian Ombudsman 07 10 2012

Diarmuid Hannigan 236 Smith StreetCollingwood. Victoria 3066 03 94195044 charada@mira,net Sunday 7^th of October 2012

Mr George Brouwer File No C/11/7789 The Victorian Ombudsman

Dear George

Re: Complaint the Victorian Legal Services Commissioner.

After receiving your last letter dated 19^th of October 2011 which suggested I pursue this matter through the Supreme Court. I approached the Attorney General Robert Clark, as I do not have the financial resources to pursue this matter in the Supreme Court, nor do I agree with the Victorian Legal Services Commissioner that it is a matter for the court. As a contest between myself and a well-established law firm would hardly be a fair contest and the likely hood of a successful outcome would be negligible Ref (attachment ). It is not a matter for a court to decide, it is a matter for the Victorian Legal Services Commissioner to regulate upon, as it involves very serious issues pertaining to the trust that Victorian citizens place in their legal practitioners, particularly when they are nominated as executors by Victorian citizens in their wills and the trust is of a fiduciary nature.

Victorian citizens must have complete faith in the trust they bestow upon a legal practitioner who performs the role of executor for them when they are dead, for the relationship between the citizen and the legal fraternity to operate. The role of the Victorian Legal Services Commissioner is to ensure that the profession does operate in a manner that guarantees that trust to Victorian citizens. Without that trust the very principles of the rule of law are eroded.

The Attorney General replied to me on 15^th of December 2011 Ref (attachment 2). In his reply he informed me that the Victorian Legal Services Commissioner has the discretion to consider a complaint made outside of the six year time limit provided the evidence is compelling and has not been considered previously.

As a result of this new information I forwarded another submission to the Victorian Legal Services Commissioner on the 1^st of January 2012 Ref (attachment 3).

I received a response from the Victorian Legal Services Commissioner on the 25^th of January 2012. Ref (attachment 4).

I responded to the Victorian Legal Services Commissioner on the 29^th of January 2012 Ref (attachment 5).

In this response I pointed out to the Victorian Legal Services Commissioner that my complaint is not only towards Ian Bult of Russell Kennedy but also it is a complaint towards Ian Bult and Russell Kennedy.

I also requested the Victorian Legal Services Commissioner to state the reasons as to why the new evidence provided was insufficient reason for the Victorian Legal Services Commissioner to re-open the complaint.

The Victorian Legal Services Commissioner responded on 20^th February 2012 Ref (attachment 6).

I again responded to the Victorian Legal Services Commissioner on the 26^th of February 2012 Ref (attachment 7).

In this letter I detailed my concerns to the Victorian Legal Services Commissioner about the individuals who were working within Russell Kennedy as lawyers so as to overcome the issue of his inability to investigate law firms and I again asked for the reasons as to why the new evidence provided was insufficient reason for the Victorian Legal Services Commissioner to re-open the complaint.

Victorian Legal Services Commissioner responded on 30^th March 2012 Ref (attachment 8).

In parallel to these communications both my brother and I have been communicating with Paul Gleeson of Russell Kennedy. My brother has also corresponded with the Victorian Legal Services Commissioner and with Robert Clark the Victorian Attorney General.

Through these communications more information has come to light.

Most significantly: A meeting which occurred on the 19^th of August 2004 at the offices of Russell Kennedy. Mr Ian Bult attended that meeting along with Arthur Bolkas Russell Kennedy`s wills and estates expert, my brother Tim Hannigan, my sister ******* and her husband ******** both practicing psychologists and my sister, the family nominated executor and her husband a medical practitioner. The purpose of the meeting was to discuss how the estate could be distributed equally amongst my mother’s four children who were all in agreement as to this being my mother’s final wish and that this would be in the long term interests of our families’.

At this point in time as far as I can ascertain my sister was the only nominated executor to the will along with all of the members of Russell Kennedy at the time of my mother`s death as probate had not yet been granted and the actual member from Russell Kennedy who was to take up the role of executor had not yet been decided. Ian Bult happened to be at that meeting because he had been involved in writing my mother’s will and had been the lawyer from Russell Kennedy to who my mother communicated with.

The facts are that a meeting at the offices of Russell Kennedy Solicitors at which one family member executor attends and one lawyer who is representing another 20 lawyers one of whom could become the other executor and a lawyer Arthur Bolkas employed by the law firm Russell Kennedy attends. The lawyer Ian Bult states that he has a letter in his possession written by my mother that states that he cannot divide the estate equally between her four children as it would be contrary to her wishes. This statement was not true and was a misrepresentation of the contents of the letter. The lawyer Arthur Bolkas who was charging the estate for his presence at that meeting had at least two clients one being my sister and another 20 clients that is the members of Russell Kennedy at the time of my mother’s death who are referred to in the will and the probate documents. That lawyer had a duty of care to my sister ******** to tell her that his other client was misleading her during the meeting.

Instead when my sister requested a copy of the letter Mr Ian Bult said he had possession of: stating to him. “My mother would never have wanted her children to be treated in an unequal manner after her death.” Mr Arthur Bolkus advised Mr Bult that he could not let my sister see that letter as it was a privileged document.

Mr Gleeson the current lawyer who is dealing with this matter at Russell Kennedy has been asked who was representing who at this meeting on 19^th August 2004. He has stated that Arthur Bolkas was primarily representing Ian Bult and that it had been adverted to my sister prior to this meeting that she required independent legal advice. Upon checking with my sister it has been found that Paul Gleeson is not telling the truth. At no time prior to the meeting of 19^th August 2004 had she been informed by any member of Russell Kennedy that she required independent legal advice at that meeting. This means that Arthur Bolkas was representing my sister as the family nominated executor of the estate and the other 21 members of the law firm Russell Kennedy at the time of my mother’s death as stated in her final will.

The Attorney General Robert Clark in his letter to my brother dated 27^th of June 2012 Refer (attachment 9) states; “The Commissioner can also investigate serious misconduct that occurs outside of legal practice that would justify a finding that the practitioner is not a fit and proper person to engage in legal practice or that would be reasonably regarded as disgraceful or dishonorable to the profession.”

I would request that The Victorian Ombudsman ask the Victorian Legal Services Commissioner to explain:

Why he has determined that the evidence that proves that Ian Bult lied to my mother’s children about her wishes is insufficient evidence for the Victorian Legal Services Commissioner to reopen and investigate the complaint?
What evidence would the Victorian Legal Services Commissioner require that would be sufficient to reopen the complaint and explain why the evidence provided that proves that Ian Bult lied is insufficient evidence?
Why does the Victorian Legal Services Commissioner consider that a lawyer who is acting as an executor in a fiduciary position, who lies to the children of their deceased mother about her final wishes is not seen by the office of the Legal Services Commissioner as engaging in behaviour that is disgraceful and dishonourable to the profession?

Particularly:

when the lawyer Ian Bult and the lawyer (Arthur Bolkas) advising Ian Bult and the members of the law firm Russell Kennedy and at the same time representing my sister the family nominated executor, were informed by all family members that his (their) decision based upon Ian Bult`s own lie would destroy the inter family relationships between my mother`s children.
And that Ian Bult was aware of the financial gain that he would create for himself and his law firm in the form of fees and charges against the estate that were estimated to be in the order of $200,000 if the matter progressed to trail?

Why does the Victorian Legal Services Commissioner continue to refer to the previous complaints raised against Ian Bult and the law firm Russell Kennedy, instead of looking at the new evidence which constitutes the basis for a completely different complaint of a far higher order, as it involves dishonest conduct thru concealment and lying to obtain a benefit by the lawyer, lawyers’?
Why at the very least has the Victorian Legal Services Commissioner not set up a formal mediation between a lawyer representing Russell Kennedy and the members of my mother’s family who want to attend and why has the Victorian Legal Services Commissioner not arranged for Russell Kennedy to permit myself and my brother Tim Hannigan to inspect the file that they are holding on the estate that they refuse to grant us access to, despite the fact that all of their fees have been paid for and the lie Ian Bult told that was not conveyed to my sister my sister resulted in Ian Bult becoming the executor of the estate through his fraudulent acts?
Why has the Victorian Legal Services Commissioner, originally Professional Standards, maintained that it could not investigate Ian Bult for his actions because he was acting as an executor and not a lawyer and this was a matter for the Supreme Court?
Could the Victorian Legal Services Commissioner please explain how it was that Ian Bult became the executor at the meeting of 19 August 2004 when the will clearly states that my mother appointed the members of Russell Kennedy at the time of her death along with my sister *********** to act as executors of her estate?. I have requested this information from Russell Kennedy solicitors and they have not responded. I have asked Russell Kennedy for the opportunity to inspect the estate file and they have denied me access. As yet I do not believe that Ian Bult was actually the executor at that initial meeting of 19 August 2004 and he was actually just another lawyer representing the other 20 lawyers who were also members of Russell Kennedy at the time of my mother’s death. Since all 21 lawyers were named in the will and referred to in the probate documents I will assert that they were all professionally responsible to their client, that is my mother and then to her daughter *********** to ensure that a member of their firm did not act in a dishonest manner when dealing with my mother’s estate and were responsible at a professional level to ensure that the member representing them did not lie to my mother’s children about her final wishes. So please could you request that the Legal Services Commissioner clarifies these points and obtains the relevant documentation from the estate file that clearly shows that Ian Bult at the time that he lied was acting as an executor and not a lawyer. I realise we are dealing in semantics but it is not I that has created the semantics it is the making of the Victorian Legal Services Commissioner and Professional Standards and unfortunately these points are relevant and require clarification.
Could the Victorian Legal Services Commissioner explain why he has made a decision not to investigate my complaint, which proves that a group of lawyers who are partners in a reputable and well respected law firm allowed one of their partners to lie about my mother’s final wishes to her children, when he was placed in a fiduciary role?
Could the Victorian Legal Services Commissioner explain his reasons for considering my complaint as insignificant and not worth a proper and thorough investigation, particularly when the Victorian Legal Services Commissioner has investigated complaints against members of the legal profession that are of a far less serious nature? Please note: There has never been a proper investigation carried out by the regulator about this matter.

Victorian Legal Services Commissioner has continually stated that Mr Ian Bult was acting as an executor and not a lawyer and that the matters that I am concerned about are a matter for the Supreme Court. I find this to be very surprising particularly when you become aware of a case of professional misconduct that is currently being bought against a Mr Harold James Johnson by Mr Michael McGarvie – Victorian Legal Services Commissioner. VCAT Ref J124/2011

Mr Johnson is charged with writing intemperate language in three affidavits to the courts whilst he was acting as a self-represented non litigant in a family law matter. In this case the Victorian Legal Services Commissioner is prepared to go all out against Mr Johnson on the basis that even though he was not acting as a lawyer in his self-representing role he had communicated in a way that lawyers are not permitted to do and in so doing had behaved in a disgraceful manner and should be barred from practicing law for five years. None of what Mr Johnson has stated in his affidavit material has been disproved.

And yet we have about 300 complaints arriving at the Victorian Legal Services Commissioner`s desk many involving lawyers who are acting as executors whom the Victorian Legal Services Commissioner does not see fit to investigate and refers the complaint back to the complainant often suggesting that they take the matter to the Supreme Court so as they can incur more legal fees and charges.

We have at least one case that I know of where a lawyer who may or may not have been an executor who clearly behaved in a dishonest manner to gain control of my mother’s deceased estate, whose behaviour is disgraceful and is not investigated by the Victorian Legal Services Commissioner.

None of these actions by Mr Johnston or the other cases of lawyer misconduct by lawyers when not acting as lawyers who were found to be guilty of professional misconduct, mentioned in the Victorian Legal Services Commissioner`s submission to V C AT, have split a family and devastated the value of a deceased estate. None of these actions have broken the trust between a person who has died and a legal practitioner who was paid to perform a fiduciary role as an executor. None of these actions have interfered with the natural love that exists between a mother and her children. In fact none of these actions are anywhere near as repugnant as those performed by Ian Bult, Arthur Bolkas and supported by the members of Russell Kennedy at the time of my mother’s death.

May I state that when a person who is a lawyer and is empowered by a testator into their fiduciary position: lies to the children of their dead mother about her wishes even though they are not considered to be acting as a lawyer because they are now an executor, can reasonably be regarded as behaviour that is disgraceful and dishonorable to the profession. Neither would they be considered to be in accordance with community expectations in relation to the way property is dealt with after a person dies.

I bought these matters to the attention of Mr Richard Wynne in his capacity as the Shadow Minister for a Fairer Victoria whom I have had the privileged to have engaged with during the past 14 years and whose advice and guidance I respect. He has suggested to me that I write again to your office as was indicated in the correspondence received from the Victorian Legal Services Commissioner dated 30th March 2012.

As previously stated I would like the Victorian Legal Services Commissioner to do his job properly and conduct an open and transparent investigation into the matters that I have set out. These matters are very serious as they affect the public perception of trust between the citizens of Victoria and the legal profession. This trust when eroded by corrupt practices within the legal profession lead to an erosion of the fabric of our society which is ultimately bound together by the rule of law from which lawyers are also governed by.

Yours Sincerely

Diarmuid Hannigan

Attachment 1

Report 99 (2001) – Complaints against lawyers: an interim report

Negligence

Negligence and misconduct in New South Wales

3.8 The definition of unsatisfactory professional conduct under Part 10 refers to conduct below the standard of competence and diligence that the public is entitled to expect of a reasonably competent practitioner. Professional misconduct includes substantial or consistent failure to reach reasonable standards of competence and diligence.¹⁸

3.9 The relationship between professional negligence and misconduct has been considered by the Tribunal. In Pitsikas, the Tribunal found that unsatisfactory professional conduct would not necessarily cover mere negligence by a practitioner.¹⁹The Tribunal commented that negligence may or may not constitute unsatisfactory professional conduct. Subsequently, in Re a Barrister, the Tribunal found, by a majority, that in most cases professional negligence by a practitioner would also constitute unsatisfactory professional conduct.²⁰The majority expressly disagreed with Pitsikas.

3.10 There is a considerable body of case law which deals with the particular circumstances in which negligence will amount to misconduct. For example, negligent supervision of the firm’s dealing with money entrusted by clients has been held to constitute misconduct.²¹Serious delay in completing work, concealing this from the client and accepting money for costs and fees connected with the work constitutes both negligence and misconduct.²²Failing to keep a client informed of the state of their affairs amounts to both negligence and misconduct.²³

3.11 Despite this, the OLSC’s web site states that the LSC will usually decline to deal with a complaint involving professional negligence, and advises that if negligence results in the client suffering a significant measurable loss, the client should consider suing the practitioner for negligence.²⁴

Submissions

3.12 Several submissions argued that many consumers are reluctant to commence legal proceedings against a practitioner for negligence, because they think that it will be difficult and expensive to win a case against a practitioner, and because they are averse to the idea of hiring another practitioner and to the legal profession in general.²⁵It was also argued that many consumers simply will not have the resources to fund litigation in situations where the defence will often be funded by a professional liability insurer.²⁶A number of submissions argued that Part 10 should be amended to clarify that negligence is capable of constituting unsatisfactory professional conduct.²⁷One submission argued that negligence should always constitute unsatisfactory professional conduct.²⁸

3.13 Other submissions opposed the inclusion of negligence in the definition of unsatisfactory professional conduct.²⁹

Other jurisdictions

3.14 The definition of unsatisfactory professional conduct in the Australian Capital Territory, South Australia, Tasmania and Victoria is similar to the New South Wales definition.³⁰In South Australia, Tasmania and Victoria, the definition of professional misconduct includes substantial or recurrent failure to meet the standard of conduct observed by competent practitioners of good repute.³¹

3.15 In the Northern Territory, where there is only one category of misconduct, it includes neglect constituting a gross breach of duty to a client.³²In Queensland, the definition of unprofessional conduct or practice includes serious neglect and failure to maintain reasonable standards of competence or diligence.³³The complaints and discipline scheme in Queensland also covers malpractice, although this term is not defined.³⁴Finally, in Western Australia, the complaints and discipline system also includes neglect.³⁵This term is not defined.

The Commission’s view

3.16 It is clear under the common law, including the recent decision of the Tribunal in Re a Barrister,³⁶that negligence is capable of constituting misconduct. The Commission does not consider that it is necessary to amend Part 10 to clarify this. The common law also provides considerable guidance on the circumstances in which negligence will constitute misconduct. In a serious case, in which the practitioner’s negligence amounts to a wilful breach of professional standards in disregard of the practitioner’s duty to the client, it will almost certainly amount to professional misconduct. These principles are not in any real sense controversial or subject to doubt. The Commission considers that the LSC needs to re-evaluate his policy of declining to deal with complaints about negligence to reflect the law that negligent conduct which happens to satisfy the requirements of the tort of negligence may also amount to unsatisfactory professional conduct or professional misconduct.

3.17 Consumer redress is an express object of Part 10.³⁷This provision implements the Commission’s previous recommendation that Part 10 should be more consumer oriented.³⁸The law should facilitate redress for a client who has suffered loss due to professional negligence by a practitioner which does not amount to misconduct. This Report includes recommendations addressing this issue. Chapter 5 of this Report recommends that the powers of the LSC should be expanded to enable the LSC to compel a practitioner and client involved in a consumer dispute to attend mediation.³⁹

Letter One to the Victorian Ombudsman

Thursday 18^th February 2010

Diarmuid Hannigan 236 Smith StreetCollingwood. Victoria 3066 03 94195044 charada@mira,net Thursday18^th February 2010

The Victorian Ombudsman

Mr George Brouwer

Dear George.

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

This report would assist me in responding to The Victorian Legal Services Commissioner, any further correspondence I would be having with you and a submission to The Council of Australian Governments involvement in the reform of regulation affecting the legal profession in relation to the management of deceased estates by legal professionals.

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

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

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

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

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

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

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

Yours Sincerely

Diarmuid Hannigan.

Letter One From the Victorian Ombudsman

23rd February 2010

Letter Two to the Victorian Ombudsman

Sunday 10^th of April 2011

Diarmuid Hannigan 236 Smith StreetCollingwood. Victoria 3066 03 94195044 charada@mira,net Sunday 10^th of April 2011

Mr George Brouwer File No C/11/7789

The Victorian Ombudsman

Dear George

Re Complaint Victorian Legal Services Commissioner.

I will break my response to your letter of 23 06 2011 into three parts.

Part one.

The facts that prove Ian Bult and Russell Kennedy acted as lawyers and were dishonest in their communications about information that they held that they claimed was privileged.

The implications of Russell Kennedy and Ian Bult`s dishonest behaviour as lawyers.

Part two

Outlines:

(1) the law as is written in the parliamentary acts that pertain to this particular situation. Ref:

The Legal Professional Act 2004

The general principles of professional conduct.

The Trade Practices Act 1974.

The Wills Act 1997.

The Trustee Act 1958.

The Administration and probate act 1958.

The Victorian Charter of Human Rights.

(2) Having regard for the evidence (see attached letter from my mother dated 30 10 1998 to Ian Bult) and for the laws as set out in the above acts the reasons why the government instruments, namely (The Victorian Legal Services Commissioner, The Atorney General and the Victorian Ombudsman) have failed in their duty of care to protect my mothers family from the criminal actions of Ian Bult (a lawyer) and Russell Kennedy (a large law firm).

Part three:

The principals that formulate the laws by which we all live by.

The existing evidence from the Victorian Ombudsman in his report on The Victorian Legal Services Commissioner that there were systemic failings within that office when carrying out its role to protect the public from dishonest lawyers.
The evidence gathered from the Legal Services Commissioners round table discussion on ascendancy law that identifies the systemic problems between lawyers who act as executors and consumers of their services (beneficiaries, namely children of parents who have died) in this area of law.
The reasons why the Legal Services Commissioner has failed in his duty of care to my family and many other Victorian Families in failing to carry out investigations about complaints about lawyers who are acting as lawyers and also acting as executors in a dishonest (criminal) manner because he states they are acting as executors and not lawyers.
The reasons why the Legal Services Commissioner needs to carry out a proper and thorough investigation of my complaint about Ian Bult and Russell Kennedy that is transparent.

Part one:

I enclose a copy of the letter dated 30 10 98 that was written to Russell Kennedy and Ian Bult when my mother was writing her last will. This letter was withheld from the family member executor by the lawyer executor prior to the application for probate. The lawyer (Ian Bult and Russell Kennedy) stated that the contents of the letter justified his position into the interpretation of my mother`s will. This interpretation was different from that of my sister and of my mother`s other three children. My sister, the nominated family executor asked Ian Bult and Russell Kennedy to see the letter and was refused on the grounds of legal client privilege which placed the lawyer in a position of power over the family, a position which allowed him to be dishonest about the content of the letter to my mother’s children. The difference of interpretation of the will by Ian Bult/Russell Kennedy led to the lawyer/executor strongly suggesting to my sister not to partake in her role in probate despite denying her access to this letter. Was this suggestion which was written on a Russell Kennedy letter head legal advice by a lawyer or was it legal advice written by an executor. If it was legal advice written by an executor who was not acting as a lawyer then why was it written on a law firm’s letter head and why it was not clearly specified that it was not advice written by a lawyer, a lawyer by the way who obtained his position as executor because he is a lawyer.

In paragraph one my mother states:

“Dear Mr Bult

Thank you very much for your letter (see attached) and thank you for staying on as executor in conjunction with my daughter. However if at any time you want to rethink this, let me know. – but I do need someone who understands the tax law and other laws relating to wills. It can be a minefield and none of my family are trained in this area so maybe you could suggest someone within your office.”

This part of the letter clearly defines the role of Ian Bult and Russell Kennedy by their client my mother with regards to them managing her estate after her death as lawyers. My mother states that they are to act in conjunction with my sister because none of her family are familiar with taxation or wills law and that it can be a minefield.

My mother nominated her daughter and the Victorian members of the firm Russell Kennedy as the executors to her will. Russell Kennedy is a law firm that practices law. The reason they were appointed as executors in conjunction with my sister, by my mother was because they were lawyers. As a consumer of their services she rightfully understood that because they were lawyers they are bound by a professional code of conduct in the form of the Legal Professional Act 2004 and could be trusted to care for her family after her death. The law firm Russell Kennedy is in the business of providing legal work. All of the members of Russell Kennedy who have been named in the probate documents practice law.

Executors named In the Supreme Court of Victoria Probate Jurisdiction, in the will of Elizabeth Moira Hannigan are:

Ian Fraser Bult of Russell Kennedy named as executor with leave being reserved to (my sister) and the following members of Russell Kennedy. Michael Douglas Main, Bruce Wayne Kent, John Mathew James Corcoran, Michael William Gorton, Ross Fraser Hodges, Paul Gerard Gleeson, Wai Hwoon Low, Damian Thomas Neylon, Victor Anthony Harcourt, Robert Anthony Ewing, Colin Robert Taylor, Andrew James Sherman, Leslie Andrew Fox, Andrew Bruce Van Ingen, Julie Callea-Smyth, Leonard Adrian Warren, Michael John Redfern, Sebastian John Michael Saccuzzo, Rohan David Harris and Rosemary Barbara South Gate.

My mother, as all of us, believed that lawyers are ethical people who are bound by a code of ethics, a code that permits consumers of their services to create relationships with them based upon trust. Placing a person who you have only know in a professional relationship as an executor in conjunction with your daughter to assist her family after her death is an ultimate act of trust. Trust not so much in the person as in the profession. A profession that she was married to (her husband my father being the head of the legal studies department at Melbourne University for many years form 1965 until 1975) and that she believed she could trust.

In paragraph three of the letter my mother states:

“Diarmid needs to be corrected to Diarmuid. I do not wish ************* to have any control of any money belonging to the children should that event arise.”

The event: being my death, either just prior or just after her death. She does not specify my death as it would be impossible for her to state that as with any other parent it would be one of the worst occurrences to befall a parent.

The contents of the letter were dishonestly misrepresented by Ian Bult and Russell Kennedy to my mother`s nominated executor and to her children in order that they could create a dispute over the will and force a part four application under the family provisions act. This process would have allowed Russell Kennedy and Ian Bult to become involved in legal litigation that would have cost the estate an estimated sum of $200,000 in legal charges.

This action was never pursued as I did not believe there was a problem with my mother`s will. I have only ever believed there to be a problem with the law firm Russell Kennedy and Ian Bult. Furthermore by engaging in litigation I would be forced to erode the value of the estate that would benefit my family. I am not a self-destructive person.

Russell Kennedy and Ian Bult were asked to present this letter from my mother by all of her children on many occasions. They continually concealed this letter from everybody on the grounds of legal client privilege and were thereby able to conceal the true wishes of my mother.

This action by Russell Kennedy and Ian Bult is:

A complete breach of the trust placed in them to act as lawyers in conjunction with my sister in helping her family through the minefield of wills and taxation law.
Dishonest conduct that misled and deceived my mother`s family.
A criminal act of fraud by Russell Kennedy and Ian Bult upon my mother`s will that could only benefit themselves through increased legal fees against the estate.
A criminal act by a lawyer and law firm against a deceased persons estate is unethical, brings the legal profession into disrepute as it erodes the trust between the community and the legal profession which is against the public interest. It is also a breach of inheritance rights, family rights and human rights.

The criminal act by Russell Kennedy act Ian Bult is at a far higher order than a criminal act conducted by a common thief as a trust is an imperative for the Rule of law to function as was seen with Justice Enfield. (I don’t think that lying about who was driving a car that was speeding has as serious ramifications for any victims or for the reputation of the legal profession as does the actions of Ian Bult and Russell Kennedy when they lied to the children and grandchildren of the deceased about her will.. If lawyers who are entrusted to manage the affairs of a deceased person break the trust by lying about the contents of documents that they hold from the deceased and claim legal client privilege over them, they are in fact committing perjury. The privilege is given to lawyers by the court and they are honoured by the court to tell the truth. They are not permitted to lie about the contents of the documents and because Russell Kennedy and Ian Bult have lied to my mother`s family about the content of the documents they held under the privilege, a privilege granted by the court to them acting as lawyers and therefore bound by the court not to misrepresent the truth, they have in fact committed an act of perjury.

Perjury is an act that is taken extremely seriously by the courts because if people lie then it becomes very difficult to ascertain the truth and for the rule of law to function the community at large expects that lawyers who hold their trust as a necessary function of law are governed by ethics that prevent them from lying.

When lawyer such as Russell Kennedy and Ian Bult do lie when they are in the position of utmost trust (a position when the client is dead and cannot intervene) then they expose their profession to disrepute to the wider community. Once the trust is broken between the wider community and the legal profession, who are the working instruments of the rule of law, particularly when dealing with inheritance which is a component of family rights and human rights, the fundamental principles from which our civilized contemporary democratic society has evolved are threatened.

The breach of trust and the misleading and deceptive conduct carried out by Russell Kennedy and Ian Bult have:

Irreparably split my mother`s family against her wishes. The unnecessary psychological pain that has been inflicted upon her children and grandchildren for the past seven years through the lies created by Russell Kennedy and Ian Bult pertaining to her will, has had devastating and permanent effects upon the inter family relationships of a first generation Australian family. A family that prior to her death was functioning in a positive and amicable light.

Healthy interpersonal family relationships are essential for healthy human development. A migrant family is particularly vulnerable to a complete breakdown in these relationships as they are isolated from extended family networks that are living in their country of origin. Thus it is essential for family development that the distribution of the estate of the first generation is managed without disharmony as my mother attempted to achieve.

Inflicting physical pain through violence is a criminal act. Psychological pain can have far more damaging effects upon people that criminal violence and the infliction of psychological pain without reason by a person (who is in a position of unquestionable power, being a lawyer or a law firm which they have obtained through a commonly perceived trust) upon another human being can also be interpreted as a criminal act of violence.

Cost my mother`s children a great deal of money. This includes:
At least $70,000 in unnecessary legal fees.
$35,000 on uncollected rent.
$40,000 on capital gains tax that could have been minimised by a lawyer expert in taxation law. $100,000 in interest foregone.
$40,000 in losses on the share market.
$700,000 in loss of financial opportunity by denying me my whole share of the estate.
$700,000 in loss of earnings capacity due to the time consuming nature of rectifying the actions of Russell Kennedy and Ian Bult.

A total of $1,685,000 not including an unspecified amount for the psychological violence meted out Ian Bult and Russell Kennedy upon my mother`s family through their lies.

Part two

Outlines:

(1) the law as is written in the parliamentary acts that pertain to this particular situation. Ref:

The Legal Professional Act 2004

The general principles of professional conduct.

The Trade Practices Act 1974.

The Wills Act 1997.

The Trustee Act 1958.

The Administration and probate act 1958.

The Victorian Charter of Human Rights.

(2) Having regard for the evidence (see attached letter from my mother dated 30 10 1998 to Ian Bult) and for the laws as set out in the above acts the reasons why the government instruments, namely (The Victorian Legal Services Commissioner, The Attorney General and the Victorian Ombudsman) have failed in their duty of care to protect my mother’s family from the criminal actions of Ian Bult (a lawyer) and Russell Kennedy (a large law firm).

The law as it has been interpreted by the ethics committee, The Law Institute of Victoria, the Victorian Legal Services Ombudsman, the Victorian Legal Services Commissioner, the Attorney General and The Victorian Ombudsman.

Lawyers who act as executors even though they are lawyers working for a law firm that has been nominated by the deceased are not bound by the legal professional Act of 2004 because even though they are lawyers they are acting as executors.
Lawyers who are in private practice are not bound by the Victorian Charter of Human Rights.
Legal professional Act of 2004.section 2.10. Summary dismissal of complaints

The Victorian Legal Services Commissioner may dismiss a complaint if-

further details are not given, or the details of the complaint or further details are not verified, as required by the Victorian Legal Services Commissioner under section 4.2.9; or

(b) the complaint is vexatious, misconceived, frivolous or lacking in substance; or

(d) the conduct complained about is the subject of another complaint; or

(e) the complaint is not one that the Victorian Legal Services Commissionerhas power to deal with; or

(f) in the case of a disciplinary complaint, the Victorian Legal Services Commissioner, having considered the complaint, forms the view that the complaint requires no further investigation.

Vexatious: Definition

A legal action instituted without sufficient grounds to cause annoyance or embarrassment to the defendant.

Misconceived: Definition

Faulty or wrongly planned or based.

Frivolous: Definition

Not serious or sensible in content, attitude or behaviour, silly. Unworthy of serious or sensible treatment.

Substance:

The tangible matter of which a thing consists.

The Victorian Legal Services Commissioner, Victorian Legal Ombudsman and the law institute of Victoria have dismissed my complaint regarding Russell Kennedy and Ian Bult claiming they are acting as executors not lawyers. Because they were able to dismiss my complaint on these grounds they did not even investigate the complaint and were able to obfuscate their responsibilities by finding a legal loop hole. If they had investigated the complaint they would have obtained the letter. They would then have been able to ascertain that Russell Kennedy and Ian Bult were lying about my mother`s wishes and about the role that they had been asked to perform as lawyers acting in conjunction with my sister.

The Victorian Legal Services Commissioner would then have become aware that Ian Bult and Russell Kennedy were breaching section 4.4.4 c 111 of the legal professional act 2004.

4.4.4 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

Penalty: s. 4.4.4

Without limiting section 4.4.2 or 4.4.3, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct—

conduct consisting of a contravention of this Act, the regulations or the legal profession rules;

(b) charging of excessive legal costs in connection with the practice of law;

(i) a serious offense; or

(ii) a tax offense; or

(iii) an offense involving dishonesty;

By reading The Legal Professional Rules one can see that Ian Bult and Russell Kennedy have ignored them by being dishonest about the contents of the letter that they maintained they had a right to hold under privilege.

GENERAL PRINCIPLES OF PROFESSIONAL CONDUCT

(A) Object of Rules

The object of these rules is to ensure that each practitioner:

(i) acts in accordance with the general principles of professional conduct;

(ii) discharges that practitioner’s obligations in relation to the administration of justice; and

(iii) supplies to clients legal services of the highest standard unaffected by self-interest.

(B) Serving the interests of Justice and complying with the Law

A practitioner must not, in the course of engaging in legal practice, engage in, or assist, conduct which is:

(i) dishonest or otherwise discreditable to a practitioner;

(ii) prejudicial to the administration of justice; or

(iii) likely to diminish public confidence in the legal profession or in the administration of justice or otherwise bring the legal profession into disrepute.

(C) Reading down of rules

If, but for this rule, any provision of the foregoing rules or any other rule would be inconsistent with the general principles stated in section 64 of the Act the provision or rule shall be construed so that it is consistent with such general principles.

10 Professional Conduct and Practice Rules 2005

RELATIONS WITH CLIENTS

Practitioners should serve their clients competently and diligently. They should be acutely aware of the fiduciary nature of their relationship with their clients, and always deal with their clients fairly, free of the influence of any interest which may conflict with a client’s best interests. Practitioners should maintain the confidentiality of their clients’ affairs, but give their clients the benefit of all information relevant to their clients’ affairs of which they have knowledge. Practitioners should not, in the service of their clients, engage in, or assist, conduct that is calculated to defeat the interests of justice or that is otherwise in breach of the law.

Duty to Client

1.1 Honesty and Confidentiality

A practitioner must, in the course of engaging in legal practice, act honestly and fairly in clients’ best interests and maintain clients’ confidences.

RELATIONS WITH OTHER PRACTITIONERS

In all of their dealings with other practitioners, practitioners should act with honesty, fairness and courtesy, and adhere faithfully to their undertakings, in order to transact lawfully and competently the business which they undertake for their clients in a manner that is consistent with the public interest.

LEGAL PRACTICE

A practitioner is endowed by law with considerable privileges, including exclusive entitlement to appear in some courts and tribunals, exclusive entitlement to conduct some transactions and draw some documents, and special protection against disclosure of client confidences. These privileges require that the community has confidence that a practitioner must at all times be fit to enjoy those privileges. A practitioner ought also to act in ways which uphold the system of administration of justice in relation to which those privileges are conferred.

By Ian Bult and Russell Kennedy ignoring the legal professional rules and acting in a dishonest manner to my mother’s family they then breach sections the following sections of the Legal Professional Act of 2004.

2.7.43 Conflicts of interest

2.7.46 Application of legal profession rules

2.7.51 Undue influence

3.2.17 Binding nature of legal profession rules

3.2.21 Law practice or practitioner must provide information and documents

4.4.4 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

If the legal services commissioner had investigated the complaint he would have through his powers been able to read the letter and been able to discover that Ian Bult and Russell Kennedy were in fact engaging in dishonest conduct and were also engaging in misleading and deceptive conduct. The misleading and deceptive conduct is created because they are appointed as lawyers by my mother to assist her family with her affairs after her death, because they are lawyers. This is very clear from the will and the letter. That means the client expected them as lawyers not to be dishonest and not to engage in dishonest conduct by lying to her children about her communications with them and to be governed by whatever legal acts govern the behaviour of lawyers when they practice law. At no time during the contract that my mother had with Russell Kennedy did they ever explain to her that when they acted as executors they were not acting as lawyers and were not subject to the requirements of the legal professional act 2004 or were exempt from legal practice rules or that they would lie to her children about the contents of a letter she had written to them six years prior to her death so as they could extract a large sum of money from the estate whilst simultaneously destroying the inter family relationships between her children that she had worked for most of her life to nurture as a mother does.

The claim by The Victorian Legal Services Commissioner that my complaint was dismissed under section 4.2.10 b of the Legal Professional Act 2004 is without basis.

The complaint was neither, vexatious, misconceived, frivolous or lacking in substance, apart from the substance of the letter that was concealed by Russell Kennedy and Ian Bult, so as hide their crime.

Vexatious: A complaint about a lawyer and a legal firm who have hidden the wishes of a deceased parent from her children is not vexatious. It is a request from a responsible authority to intervene in an action that is criminal. The fact that it is made against both the senior principal of a very well respected, influential and trusted law firm and the law firm, does not in itself make the complaint vexatious. The fact that the law firm has members who sit on the human rights committee, the legal services board and hold executive positions on the Law institute of Victoria and are also named in the probate of my mother’s will does not make the complaint vexatious.

Misconceived: The complaint against Russell Kennedy and Ian Bult contained hard evidence and a well-documented account of the basis behind the complaint in the form of a statutory declaration by my sister ******, a letter from my sister *******, two letter written to my mother by Mr Ian Bult when forming her will and a copy of a book Lawyers or Grave Robbers.

The only missing evidence was the letter written to Ian Bult by my mother dated 30 10 1998.

Frivolous: A complaint about criminal activity concerning the activities of a lawyer and a law firm in their management of a parent’s deceased estate is extremely serious as it is an abuse of inheritance rights, family rights and ultimately the human rights of all living family members. It is not a frivolous matter.

Lacking in substance: The substance contained in the complaint was substantial and should have been enough to alert the Legal Services Commissioner to the need to utilise its powers of investigation so as to obtain the substance of the letter and prevent any further abuse of my mother’s family`s human rights by Ian Bult and Russell Kennedy.

The particular substance being that my mother asked Ian Bult and Russell Kennedy to act as lawyers in conjunction with my sister ******. It was thus that she the client defined their role as lawyers even though they were executors and they should therefore be bound by The Legal Professional Act of 2004 to act as lawyers and to act in an ethical manner.

Letter 28 10 2004 To Juliano Furletti and Scott from Ian Bult of Russell Kennedy Paragraph 3. Is a dishonest statement by a lawyer on a lawyer’s letterhead to another lawyer. The lawyer writing the letter has strongly suggested to my sister the family member executor to renounce probate of the will, based upon his dishonest interpretation of the letter and his fraudulent and dishonest communications of its contents to my two sisters and brother.

These actions along with the actual letter and a truthful interpretation of its contents by my mother’s children make both Ian Bult and Russell Kennedy and all of its named members accountable under the legal professional act of 2004. 2.7.19 Extension of vicarious liability relating to failure to account, pay or deliver and dishonesty to incorporated legal practices

The definition of vicarious being as follows:

A vicarious liability can be defined as the liability created by an action or non action by a person, working on behalf of him when he is responsible for all the action or inaction of such person within the limits of their association. So when an employee or worker cause a loss to somebody in the normal course of his duty then the employer will be responsible for such loss.

The unfortunate truth of the matter is that if The Law Institute of Victoria in the first instant had investigated my initial complaint a lot less damage to my mother’s family would have occurred. The same applies to my complaints to The Victorian Legal Ombudsman and later to The Victorian Legal Services Commissioner who was provided with ample evidence in which to launch an investigation and obtain the key to the deception. The Victorian Legal Services Commissioner chose not to pursue the complaint because Ian Bult was acting as an executor. He did not even consider that he was also acting as a lawyer.

The claim by the Victorian Legal Services Commissioner that he is unable to investigate complaints against lawyers who are acting as executors because they are executors and not lawyers is a furphy and is in fact an abuse of human rights inheritance rights and family rights. I trust that with this new evidence which should have been made freely available to my mother’s family by Russell Kennedy and Ian Bult six years ago, the Victorian Legal Services Commissioner can go forward and investigate my complaints against Ian Bult and Russell Kennedy utilising trained staff and proper procedures in a transparent way so as we can all be satisfied that procedure has been followed without incurring any bias in favour of the legal fraternity.

The dishonesty by Ian Bult and Russell Kennedy to my mother’s children and grandchildren created a trust that in fact was not based upon the testator’s wishes. By Russell Kennedy breaking the contract of the will through their dishonesty has led to the formation of an unnecessary trust that has lost $70,000. Hence Russell Kennedy and Ian Bult have breached the Legal Professional Act 2004 sections:

3.3.17 Trust money subject to specific powers

3.3.21 Deficiency in trust account

Because they had no power under the will to become trustees of a trust that was set up because they lied to the family executor about the content of the letter where they inferred that they were given those powers by my mother to override the family even though they refused to show the letter and substantiate that power with evidence. Hence the trust that was run by Russell Kennedy was set up under a dishonest premise created by them.

The dishonest conduct by Ian Bult and Russell Kennedy also breach the Trade Practices Act 1974, the Wills Act 1997 , the Trustee Act 1958 and the Administration and probate act 1958. They also breach the Victorian Charter of Human Rights.

Part three:

The principals that formulate the laws by which we all live by.

1 The existing evidence from the Victorian Ombudsman in his report on The Victorian Legal Services Commissioner that there were systemic failings within that office when carrying out its role to protect the public from dishonest lawyers.

2 The evidence gathered from the Legal Services Commissioners round table discussion on ascendancy law that identifies the systemic problems between lawyers who act as executors and consumers of their services (beneficiaries, namely children of parents who have died) in this area of law.

3 The reasons why the Legal Services Commissioner has failed in his duty of care to my family and many other Victorian Families in failing to carry out investigations about complaints about lawyers who are acting as lawyers and also acting as executors in a dishonest (criminal) manner because he states they are acting as executors and not lawyers.

4 The reasons why the Victorian Legal Services Commissioner needs to carry out a proper and thorough investigation of my complaint about Ian Bult and Russell Kennedy that is transparent.

The relevant principals that formulate the laws by which we all live by are defined by The Victorian Charter of Human Rights as I set out for you in my previous letter and are guided by our ethics.

Ethical: Definition. in accordance with the principals of conduct that are considered correct. Especially those of a given profession.

Ethic: Definition. a moral principle or set of moral principles held by an individual or a group.

Ethics: Definition. The philosophical study of the moral value of human conduct and of the rules and principles that ought to govern it. A social, religious or civil code of behaviour considered correct. Especially that of a particular group, professional, or individual

These principals are also referred to in the relevant government acts already referred to, in particular the disdain for dishonest behaviour and misleading and deceptive conduct.

Dishonest behaviour coupled with misleading and deceptive conduct is unethical behaviour and goes against the moral principles expected of the legal profession by the wider society. Particularly when a member of the legal profession is given a position of trust to act as an executor of a person`s will because the person giving that trust knows they will not be there when the trustee exerts their power. When that power is abused through dishonesty to obtain financial gain:

it is an abuse of Inheritance rights family rights and ultimately human rights.
It brings the legal profession into disrepute by undermining the trust the community has in it.
It undermines the very fabric of the rule of law that allows us to live in a civilised community
It attacks the core component of our society which is the family unit

Our contemporary democratic society has allowed us to create structures to ensure these very principles are not destroyed by criminals.

The Victorian Ombudsman and The Victorian Legal Services Commissionerare examples of such structures.

In the Victorian Ombudsman`s own motion report on the Legal Services Commissioner you state the following:

“The role of the Victorian Legal Services Commissioner is to protect both consumers of legal services and the public interest in the proper administration of justice. The Victorian Legal Services Commissioner has the power to address complaints made against Victorian legal practitioners to ensure that they acted within the confines of the law, with appropriate ethical standards and with deference to their professional position.”

In your reply to me letter dated 23 06 2011

Breaches of my mother’s family`s human rights by The Victorian Legal Services Commissioner.

You state you have dismissed my complaint of human rights abuses by the Victorian Legal Services Commissioner on the grounds that the human rights abuses were committed by a lawyer and a law firm who are lawyers in private practice who are not bound by the Victorian Charter of Human Rights.”

In a contemporary democratic society our government has set up authorities who protect its citizens from abuse by others who are in a position of power as a result of their privileged position. The Victorian Legal Services Commissioner is one of those authorities.

The Victorian Charter of Human rights the definition of ethical behaviour, the own motion report of the Victorian Ombudsman and the round table discussion on succession law 2010 held by the Victorian Legal Services Commissioner identify a very serious problem, a problem that has created a significant number of complaints relating to lawyers who are acting in succession law. The systemic issues identified by the round table discussion are all issues that I raised in my complaint to the Victorian Legal Services Commissioner and are contained in the book Lawyers or Grave Robbers? Of which the office received a complimentary free copy. The operation of the office of the Victorian Legal Services Commissioner was of such concern that it generated over 90 complaints to your office and led to your own motion report. A report that found there were systemic failings within the legal Services Commissioners office. A report that contains 28 recommendations on how to address those failings.

Victorian Legal Services Commissioner received over 1000 complaints about lawyers who were acting in succession law from 2006 to 2009. Many of those complaints were not investigated properly by the Victorian Legal Services Commissioner as has been stated in your report.

“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. Victorian 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.”

The round table discussion on succession law 2010 has identified the following areas as systemic concern.

During the course of the Round Table, participants were asked to identify any areas of concern they may have had with probate and estate matters. The range of issues raised included the following:

emotions and family disputes
delay
communication problems
elder abuse
legal costs
the quality of wills
problems with executors
solicitor executors.

Considering the damage that is done to families within our community when inheritance rights are abused by lawyers which constitutes systemic human rights abuse the community would expect the Victorian Legal Services Commissioner to take such complaints very seriously and put in place systems to ensure the complaints are thoroughly investigated. As an engineer I am aware that to solve a problem one has to carry out a thorough investigation so as to define a problem and then find solutions to solve the problem. In the case of the abuse of inheritance rights by lawyers Victorian Legal Services Commissioner has in many instances failed to investigate the complaints at all because lawyers who act as executors are not bound by the legal professional act 2004 and are not bound by the Victorian Charter of Human Rights.

This has allowed some lawyers to perpetuate criminal acts and human rights abuses against families of deceased parents. Victorian Legal Services Commissioner`s failure to act against this systemic human rights abuse is in itself an abuse of human rights. As the regulator when it becomes aware of a systemic human rights abuse it is bound to act. It is an ethical requirement and is one that is assumed by the citizens of our contemporary state.

In my own case I have now provided you with substance. Substance that proves a well-respected lawyer (Ian Bult) of a well-respected law firm (Russell Kennedy) can lie to the children of a deceased parent and create a massive amount of emotional and financial damage to a family just so as he could create a dispute that would earn him a few dollars. Hardly believable but true.

Considering the level of the breach of trust that has occurred by Russell Kennedy and Ian Bult and their standing within the legal fraternity I urge you and your office to request Victorian Legal Services Commissioner to:

1 investigate my complaint in a thorough, transparent and professional manner as it is particularly serious and would help to identify where the root causes of the problem arose and thus ways to prevent it ever occurring to another Victorian family.

2 Request the Victorian Legal Services Commissioner to investigate the complaints he has dismissed against other lawyer executors on the basis of the shocking abuse of privilege shown by Russell Kennedy and Ian Bult that may be prevalent within some parts of the legal fraternity.

Yours Sincerely

Diarmuid Hannigan.

Definition: Sophistry

In modern usage, sophism, sophist and sophistry are derogatory terms. A sophism is taken as a specious argument used for deception. It might be crafted to appear logical while actually representing a falsehood or it might use obscure words and complicated sentence constructions in order to intimidate the opponent into agreement out of fear of feeling foolish. Other techniques include manipulating the opponents prejudices and emotions to overcome their logical facilities.

Letter Two From the Victorian Ombudsman

19 October 2011

Letter Three to the Victorian Ombudsman

Sunday 9th of September 2012

Diarmuid Hannigan 236 Smith StreetCollingwood. Victoria 3066 03 94195044 charada@mira,net Sunday 9th of September 2012

Mr George Brouwer File No C/11/7789

The Victorian Ombudsman

Dear George

Re: Complaint the Victorian Legal Services Commissioner.

After receiving you last letter dated 19th of October 2011 which suggested I peruse this matter through the Supreme Court. I approached the Attorney General Robert Clark, as I do not have the financial resources to pursue this matter in the Supreme Court, nor do I agree with the Victorian Legal Services Commissioner that it is a matter for the court. As a contest between myself and a well-established law firm would hardly be a fair contest and the likely hood of a successful outcome would be negligible.

It is not a matter for a court to decide, it is a matter for the Victorian Legal Services Commissioner to regulate upon, as it involves very serious issues pertaining to the trust that Victorian citizens place in their legal practitioners, particularly when they are nominated as executors by Victorian citizens in their wills and the trust is of a fiduciary nature.

Victorian citizens must have complete faith in the trust they bestow upon a legal practitioner who performs the role of executor for them when they are dead for the relationship between the citizen and the legal fraternity to operate. The role of the Victorian Legal Services Commissioner is to ensure that the profession does operate in a manner that guarantees that trust to Victorian citizens. Without that trust the very principles of the rule of law are eroded.

The Attorney General replied to me on 15th of December 2011 Ref (attachment 1). In his reply he informed me that the Victorian Legal Services Commissioner has the discretion to consider a complaint made outside of the six year time limit provided the evidence is compelling and has not been considered previously.

As a result of this new information I forwarded another submission to the Victorian Legal Services

Commissioner on the 1st of January 2012 Ref (attachment 2).

I received a response from the Victorian Legal Services Commissioner on the 25th of January 2012.

Ref (attachment 3).

I responded to the Victorian Legal Services Commissioner on the 29th of January 2012 Ref (attachment 4).

I also requested the Victorian Legal Services Commissioner for the reasons as to why the new evidence provided was insufficient reason for the Victorian Legal Services Commissioner to re-open the complaint.

The Victorian Legal Services Commissioner responded on 20th February 2012 Ref (attachment 5).

I again responded to the Victorian Legal Services Commissioner on the 26th of February 2012

Ref (attachment 6).

The Victorian Legal Services Commissioner responded on 30 March 2012 Ref (attachment ).

Through these communications more information has come to light. Most significantly: A meeting which occurred on the 19th of August 2004 at the offices of Russell Kennedy. Mr Ian Bult attended that meeting along with Arthur Bolkus Russell Kennedy`s wills and estates expert, my brother Tim Hannigan, my sister ******* and her husband *********** both practising psychologists and my sister ************. the family nominated executor and her husband *********** a medical practitioner.

The purpose of the meeting was to discuss how the estate could be distributed equally amongst my mother’s four children who were all in agreement as to this being my mother’s final wish and that this would be in the interests of our families’ long term interests.

The facts are that a meeting at the offices of Russell Kennedy Solicitors at which one family member executor attends and one lawyer who is representing another 20 lawyers one of whom could become the other executor and a lawyer Arthur Bolkus employed by the law firm Russell Kennedy attends. The lawyer Ian Bult states that he has a letter in his possession written by my mother that states that he cannot divide the estate equally between her four children as it would be contrary to her wishes. This statement was not true and was a misrepresentation of the contents of the letter. The lawyer Arthur Bolkus who was charging the estate for his presence at that meeting had at least two clients one being my sister and another 20 clients that is the members of Russell Kennedy at the time of my mother’s death who are referred to in the will and the probate documents. That lawyer had a duty of care to my sister ************ to tell her that his other client was misleading her during the meeting.

Instead when my sister requested a copy of the letter Mr Ian Bult said he had possession of stating to him. “My mother would never have wanted her children to be treated in an unequal manner after her death.” Mr Arthur Bolkus advised Mr Bult that he could not let Grainne see that letter as it was a privileged document.

Mr Gleeson the current lawyer who is dealing with this matter at Russell Kennedy has been asked who was representing who at this meeting on 19th August 2004. He has stated that Arthur Bolkus was primarily representing Ian Bult and that it had been adverted to my sister prior to this meeting that she required independent legal advice. Upon checking with my sister it has been found that Paul Gleeson is not telling the truth and that at no time prior to the meeting of 19th August 2004 had she been informed by any member of Russell Kennedy that she required independent legal advice at that meeting. This means that Arthur Bolkus was representing my sister as the family nominated executor of the estate and the other 21 members of the law firm Russell Kennedy at the time of my mother’s death as stated in her final will.

The Attorney General Robert Clark in his letter to my brother dated 27th of June 2012 Refer (attachment 8) states; “The Victorian Legal Services Commissioner can also investigate serious misconduct that occurs outside of legal practice that would justify a finding that the practitioner is not a fit and proper person to engage in legal practice or that would be reasonably regarded as disgraceful or dishonourable to the profession.”

May I state that when a person who is a lawyer is empowered by a testator into their fiduciary position: lies to the children of their dead mother about her wishes even though they are not considered to be acting as a lawyer because they are now an executor, can reasonably be regarded as behaviour that is disgraceful and dishonourable to the profession.

Yours Sincerely

Diarmuid Hannigan

Letter Three From the Victorian Ombudsman

17 October 2012

Letter Four to the Victorian Ombudsman

Sunday 11 November 2012

Diarmuid Hannigan 236 Smith StreetCollingwood. Victoria 3066 03 94195044 charada@mira,net

Mr George Brouwer File No C/11/7789

The Victorian Ombudsman

Dear George

Re: Complaint the Victorian Legal Services Commissioner.

Thank you for your reply to my correspondence of 07 10 2012.

In your reply you state.

“As your recent letter to this office concerns the same issues about the commissioner, I will take no further action on this matter.”

I have taken the opportunity of speaking with Marina on the telephone where I raised my concerns in regards to the Ombudsman’s offices perspective that my two communications related to the same issues.

I explained to Marina that the first communication concerned the obligations of the Victorian Legal Services Commissioner to the Victorian community and thus to my mother’s family under the Victorian Charter of Human rights. This concern has been rejected under the guise that lawyers in private practice are not bound by the Victorian Charter of Human Rights.

I explained to Marina that my second communication contained a completely different concern.

My concern in my second communication is that the Victorian Legal Services Commissioner has not given me any of his reasons as to why he feels the new evidence that was presented to him did not allow him to investigate my complaint.

Since the new evidence proves the lawyer Ian Bult who was representing the nominated executors of Russell Kennedy misled my sister at a meeting where Arthur Bolkas, Russell Kennedy’s wills expert was attending. Since the estate was paying for the attendance of Arthur Bolkas at that meeting and he was there to represent the executor/executors it seems obvious that he had two clients and was obligated to tell my sister that Ian Bult was misleading her. Instead he stated that the information that Ian Bult was using to mislead her was privileged.

My first letter describes the abuses inflicted upon my mother’s family by the lawyer and the law firm. Because of the rules of privilege the lawyer and the law firm were able to conceal the one piece of evidence that would prove the lawyer was making misleading statements and that his actions constituted professional misconduct.

My second letter relates to the accountability of the office of the Victorian Legal Services Commissioner and the way they have dealt with the new evidence they have been provided with.

It is fair of me to ask for the reasons as to why the legal services commissioner thought the evidence, which clearly shows the lawyer lied to my mother’s children about her final wishes, is insufficient for him to go and investigate. His failure to provide those reasons makes him unaccountable for his actions/decisions.

It is fair of me to ask the Victorian Legal Services Commissioner his reasons for not investigating Arthur Bolkas`s role in this matter and his failure to deal with his conflict of interest at the meeting where Ian Bult misled my sister.
It is fair of me to ask the Victorian Legal Services Commissioner why it is possible for his office to prosecute a case against James Johnston, a lawyer who at the time was a self-represented non litigant thus a lawyer who was not acting as a lawyer for writing information in affidavits that questioned the integrity of the courts and the lawyers acting for the other party, none of which mind you has ever been proven to be untruthful and yet the legal service commissioner will not investigate a lawyer who is representing another 19 lawyers from his firm who lies to the children of their dead mother about her final wishes and then is able to conceal his lie by hiding the evidence by claiming legal client privilege over the documents.
It is fair of me to ask the Victorian Legal Services Commissioner to assist me and my mother`s family to gain access to the estate file considering the evidence at hand which proves that Russell Kennedy were able to hijack my mother’s estate by lying to my sister ******* the family nominated executor and then bully and intimidate her from her position as executor.

These matters are extremely serious as they impact upon a family for ever. They bring into question the effectiveness of statutory authorities such as the office of the Victorian Legal Services Commissioner and the Victorian Ombudsman in their fundamental role as protectors of Victorian families.

Since the issues I raise concern the trust the public must have in the legal profession, a trust that is vital for our society to function with. I am surprised that the office of the Victorian ombudsman has not recognised the difference between my two letters and the need for the Ombudsman to raise the concerns mentioned in the second letter with the Victorian Legal Services Commissioner.

I trust that you will re-evaluate my second letter and respond appropriately.

Yours Sincerely

Diarmuid Hannigan.

Letter Four from the Victorian Ombudsman

17th December 2012

Here’s what the Ombudsman said about the Legal Services Commissioner in this latest annual report:

‘
The Legal Profession Act 2004 established the office of the Legal Services Commissioner and lists its objectives, one of which is:

to ensure that complaints against Australian legal practitioners and disputes between law practices or Australian legal practitioners and clients are dealt with in a timely and effective manner [s. 6.3.2].

The role of the Legal Services Commissioner is to protect both consumers of legal services and the public interest in the proper administration of justice. The Legal Services Commissioner has the power to address complaints made against Victorian legal practitioners to ensure that they acted within the confines of the law, with appropriate ethical standards and with deference to their professional position.

The Legal Services Commissioner can receive complaints which relate to disputes about legal costs, claims of up to $25,000, or disciplinary matters. The legal system can be financially costly and the law can be complex, with intricacies which many members of the public find difficult to navigate and understand. This can leave the public vulnerable to unscrupulous, negligent or unprofessional practices of legal practitioners.

Over the past year I received 95 complaints about the Legal Services Commissioner, which replaced the former Legal Ombudsman in December 2005. There were recurring themes in the complaints which pointed to a systemic failure by the Legal Services Commissioner to adequately undertake its statutory role. For example, complainants alleged that:

• complaints were inadequately investigated or not investigated at all
• there were significant delays – sometimes in excess of three years – in finalising complaints
• documentation practices were poor and failed to provide complainants with information about the Legal Services Commissioner’s internal review process and external review mechanisms investigations lacked procedural fairness.

The following case study highlights that the lack of appropriate review powers in place for the Legal Services Commissioner is still the case. It illustrates how this can result in injustice to complainants and allow practitioners to avoid detection and/or prosecution as a consequence of the current legislative framework. I recommended that the Attorney-General consider amending the Legal Profession Act 2004 to enable the Legal Services Commissioner to review its merits-based decisions where there have been deficiencies in its investigations or errors in its decisions.

I understand that this is being considered as part of a national reform of the Australian legal profession announced by the Council of Australian Governments.

Lack of appropriate review powers
The complainant required life-saving medical treatment and so his legal practitioner referred him to a mortgage broker, who sourced a short-term loan. Because the complainant was overseas his brother signed the contract, which contained different terms and conditions from the original agreement.

When the complainant defaulted on the loan the mortgage company sued. In this case the legal practitioner, who formerly represented the complainant, also represented the mortgage company.

The complainant contacted the Legal Services Commissioner (LSC) and maintained that the legal practitioner had a conflict of interest. He also complained that the legal practitioner failed to follow his instructions and advise him properly. The LSC dismissed the complaint because of insufficient evidence.

I investigated the complaint and established that the LSC did not interview the complainant, his brother or the legal practitioner. Although the LSC requested documents from the practitioner, it failed to exercise its powers to obtain the documents when they were not supplied. Instead of gaining access to documents which may have provided evidence, the LSC relied solely on the legal practitioner’s assertions.

Outcome
I asked the LSC to seek legal advice on whether the case could be re-opened. The advice identified that the solicitor ‘acted for both financier and borrower contrary to rules 10.2 and 10.6 [Professional Conduct and Practice Rules 2000]’; that the solicitor ‘failed to protect his client’s interests’ and ‘acted in a potential conflict of interest’.

The deficiencies in the LSC investigation and errors in the final decision drew into question the merits of the decision. However, the legal advice indicated that the legality of the decision was not brought into question because the LSC had followed the legal procedures set out in its governing legislation, the Legal Profession Act 2004.

The advice concluded that deficiencies in an LSC investigation or an error in its decision (which may have been caused by the deficiencies in its investigation) cannot be classed as a ’legal’ error but is an error that goes to the merits of the complaint (‘merits’ error). A merits error does not give the LSC the power to re-open a discipline complaint. This is unsatisfactory. Complainants should be entitled to reviews of deficient investigations or erroneous decisions. I have recommended to the Attorney-General that he amend the Legal Profession Act 2004 to allow the LSC to re-open a case where there has been a merits error.

I note that since this recommendation the Council of Australian Governments (COAG) announced that it had devised a plan to achieve a national regulation for the Australian legal profession and any proposed changes to the Legal Profession Act (including complaint-handling and professional discipline) will be considered as part of this process.

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.’

Letter Five from the Victorian Ombudsman The file is top secret.

11th December 2013

Diarmuid Hannigan

236 Smith Street

Collingwood. Victoria 3066

03 94195044

charada@mira,net

Sunday 16th of March 2014

To Lynne Bertolini

The Freedom of Information Commissioner

Dear Lynne

Re inquiry for a review ref 14/0899

I placed this inquiry with your office 31^st December 3013.

I have subsequently followed up on this inquiry on two occasions by telephone and received a phone call from Mr. Laurie Bailey on or around the 19th of February 2014. During that phone conversation I requested a response in writing. On Friday 7th of March 2014 I again contacted your office to follow up on the written response and enquired as to when it may be sent. Unfortunately a time could not be specified.

Since this matter is important, as it affects the relationship between Victorian families and legal practitioners in general I would appreciate a response in writing at a date that is sooner rather than later. As you would agree a period of two and a half months is sufficient time in which to request a written response from your office.

I would like to emphasise the following regarding a review for the request of this report as follows.

The Victorian Ombudsman dedicated two pages in his 2009 annual report to this report.

It appears as if the Ombudsman at the time of writing and publishing his annual report was of the opinion that this report would be tabled to parliament and would be made available for public viewing and comment otherwise it would be logical to assume he would not have dedicated so much emphasis to it in his annual report of 2009. After the Attorney General received the report a decision must have been made to bury the report. I can only assume that pressure was brought to bear by the legal fraternity.

This report impacts upon the way the lawyer regulator`s office performs its duties in the public interest because as we all know it is important when dealing with any profession`s performance that the regulator must perform its duties effectively to ensure that the profession`s standards are maintained to a satisfactory level. This is essential when dealing with the legal profession, as tardy operators can have devastating effects upon Victorian families. Failure to address poor service within any profession or industry tends eventually to lower the standards of the whole industry; any person familiar with organizational structures involving people knows this.

I also note that Mr Ian Killey PSM, of the Ombudsman’s office who appears to have made the decision not to release the report and has used legal rhetoric based upon an act written fourty years ago is a lawyer and may have a conflict of interest with regards his decision.

Yours Sincerely

Diarmuid Hannigan.