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Barrister fails to appeal disciplinary action for fraud allegations
A Victorian barrister failed to overturn a reprimand for accusing an opposing counsel of relying on a “fraudulent or false” document.
Naomi Neilson
Alan Walter Sandbach, a practising barrister until 2018, was unsuccessful in appealing a professional misconduct finding for making and repeating claims that an opposing counsel relied on a false document when seeking taxation of a bill of costs.
VCAT heard Sandbach first made the allegations in June 2016, telling Victorian Supreme Court judicial registrar Meg Gourlay the document was “plainly a false invoice” and that “on no view could this bill be a genuine bill in accordance with any form of retainer”.
Gourlay warned Sandbach the allegation could be a breach of the Civil Procedure Act and was “made almost out of desperation”.
The following month, Gourlay again cautioned Sandbach against pressing the allegation and said it would be “outrageous” for any member of the Bar to do so without any basis.
However, Sandbach continued to assert the invoice was fraudulent.
When the matter reached VCAT in November 2022, Sandbach told Justice Quigley there was a “reasonable basis” for him to have made the allegation because it was “more than irregular, it was a nullity”.
Justice Quigley said that in making the fraud allegations, Sandbach was “grasping at straws” and put his “client’s desires before his dignity as a legal practitioner and before his paramount duty to the court”.
Sandbach sought to overturn Justice Quigley’s finding and punishment in the Court of Appeal on 12 separate grounds.
In a judgment handed down this week, Justices Richard Niall, Kevin Lyons and Terry Forrest granted leave to appeal on three of those grounds but ultimately dismissed the appeal.
In addition to claiming that Justice Quigley should have considered whether Sandbach had a proper basis to make the allegation, the first two grounds alleged the judge misstated several of his submissions as being directed to the question of fraud allegations.
Sandbach contended that Justice Quigley asked a “fundamentally inappropriate and irrelevant question” about whether he had a proper basis for a belief or a reasonable belief for the conclusion that the invoice was false and should have asked whether he had a reasonable basis to make the allegation.
Justices Niall, Lyons, and Forrest found Justice Quigley was aware of and applied the correct legal test and question.
“It is true that on occasions the judge considered whether the … invoice was fraudulent or false,” they said.
“This appears to be because, while the ultimate issue for VCAT was whether the applicant believed on reasonable grounds the material provided a proper basis for the fraud allegations, it was implicit and/or inherent in the submissions of the applicant … [that the] invoice was a fraudulent and false document and he believed it to be so.”
The third ground to be granted leave alleged there was no evidence for Justice Quigley to find Sandbach made the allegation without instructions and without consulting his client of the possible consequences if the allegation was made.
Specifically, Sandbach said there was “no evidence the applicant did not have instructions and no evidence he did not give such advice”.
The Court of Appeal bench said two elements had to be established for this ground to be made out: that the client was aware and advised and that the client wished the fraud allegation to be made out.
While Justices Niall, Lyons, and Forrest agreed that the evidence relied on by Justice Quigley did not address the first element, Sandbach was still unable to establish there was no inference to be made.
“We concluded it was open to the judge to infer … that the first element had not been established,” they said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
