Ian Humphrey was cycling along a road north of Adelaide when he was hit and killed by barrister Eugene McGee. McGee fled the scene.
It later emerged that McGee had been at lunch. His party of three had ordered three bottles of wine, a glass of port and a glass of beer. He was found guilty of driving without due care and of failing to stop and render assistance after an accident. His penalty was a $3100 fine and a one-year driving ban.
Humphrey’s widow Di complained to South Australia’s Legal Practitioners Conduct Board. Five years later she got a reply. The conduct board found McGee’s conduct was not of a sufficiently ”infamous nature” as to be deemed unprofessional.
As many who have had a passing acquaintance with legal conduct boards will tell you, if you have a complaint about a lawyer you are likely to enjoy better results by complaining to your mother than a legal conduct board.
The South Australian conduct board, however, is in a league of its own. While Di Gilchrist-Humphrey was pursuing justice for the death of her husband, another complainant was being mercilessly flogged by the conduct board. This fellow had had the impertinence to take on the Adelaide establishment.
He is John Viscariello, a small businessman, whose business had collapsed and whose liquidator had then spent $500,000 of company funds chasing a debt of $28,000 said to be owed by his girlfriend. Long after the estate was exhausted, the fees dragged on.
This is the marquee case of asset wasting by liquidators and lawyers. It goes to the heart of the administration of justice in this country and of the failure of those who are entrusted to mete it out. Viscariello has spent 13 years battling the liquidator Peter Macks, formerly of PPB, and Macks’ solicitors from Minter Ellison.
Hopes of justice
This week Viscariello had a win. Among myriad other lawsuits, he had brought a case against the conduct board for failing to investigate his complaints. Justice Kevin Nicholson of the Supreme Court has given the green light for a judicial review into the Legal Practitioners Conduct Board.
This opens the door for orders to the board to ”perform its public duty to make an inquiry into the conduct of Mr [Mark] Livesey QC and Ms [Tyneil] Flaherty” and others at Minters. This is a bone rattler for the South Australian establishment.
Livesey is vice-president of the National Bar Association. Minter Ellison is the most powerful law firm in the state. The ”others” are or were partners at the firm.
Tanya Hamilton-Smith, who was then Viscariello’s girlfriend, had first complained to the conduct board in January 2006. Instead of investigating her complaints though, the conduct board ignored them and shot back with a series of ”own motions” against Viscariello.
An own motion is when the board does something off its own bat rather than investigating a complaint. Viscariello endured dozens of demands over the ensuing eight years – threats of fines and disciplinary action, and umpteen 14-day deadlines entailing weeks of research to meet them.
In short, rather than investigating his complaints, they turned on him. And they finally got their man. Last year, despite a damning interim judgment in the Supreme Court against Macks and Minters – a judgment that went quite a way to vindicating Viscariello’s complaints to the conduct board – they had him struck off as a lawyer.
Had he not graduated in law around the time his company collapsed, things would never have gone this far. He would have run out of money. Instead of being subjected to the usual stripping of the corporate carcass by insolvency people, Viscariello fought them every step of the way.
Even as they struck him off though – for misleading the court – the worm had begun to turn. In a spectacular interim judgment in mid-2012, Chief Justice Chris Kourakis said: ”I have formed the view that the proceedings [against Viscariello and Hamilton-Smith] were prosecuted recklessly, indifferent to the possibility that they might be an abuse.”
This week’s Nicholson judgment quotes Viscariello’s claims to the conduct board that there are ”now reasonable grounds to make inquiries with the management at Minter Ellison at the very highest level, including the board level”.
”It is apparent on the evidence given by Mr Macks at trial that these joint-venture/profit-sharing arrangements between insolvency practitioners and their lawyers are commonplace … It appears that the decision to cover up these arrangements and the unprofessional conduct as I have alleged was sanctioned by senior management at Minter Ellison Lawyers including by Mr Nigel McBride and Mr Greg May.”
McBride was formerly managing partner at Minters and is now chief executive of Business SA. May, as a partner at the firm for 20 years, has ironically been appointed the state’s first Legal Profession Conduct Commissioner. He has inherited the Viscariello case.
In the wake of the hue and cry over the death of Ian Humphrey, the Legal Practitioners Conduct Board has been replaced by this office of the commissioner.
The Nicholson verdict this week lends hope that the stonewalling may be over in the Viscariello matter – that after 13 years justice may finally be had. Don’t hold your breath though, the lawyers and liquidators have a lot at stake.
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