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Victorian solicitor pursues ‘fishing expedition’ to snare Legal Services Commissioner
A Victorian solicitor was accused of “fishing” for evidence to support a sensational allegation that the state’s legal disciplinary body had tampered with documents and witness evidence.
Naomi Neilson
Victorian Civil and Administrative Tribunal (VCAT) senior member Jonathan Smithers found solicitor Xiao Yi Chen’s – or Anna Chen – request for documents “amounted to a fishing expedition”.
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This “expedition” related to Ms Chen’s allegations that the Victorian Legal Services Commissioner (VLSC) tampered with a further amended application and “doctored” seven witness statements during disciplinary proceedings it launched against her in 2017.
At the time, VLSC alleged Ms Chen conferred with her family law client during cross-examination and provided false and/or misleading information to the disciplinary body on three occasions.
While VCAT found her guilty of professional misconduct in February 2020, the findings were set aside after a judicial review and an order was made for the matter to be remitted back to the tribunal.
At first, VCAT indicated it would seek to prosecute the disciplinary application again but ultimately decided to withdraw due to the passage of time since the alleged misconduct and the evidence it would again be required to compile to establish the charges.
VLSC proposed the withdrawal would be on the basis that each party pays their own costs, but Ms Chen disagreed.
The current matter before the tribunal relates to this disagreement and Ms Chen’s request for 13 documents from the VLSC, including copies of interview notes with witnesses and an investigation report.
In addition to denying all allegations against it, VLSC accused Ms Chen of requesting the documents as part of a “fishing expedition”.
“Further, the commissioner contends the respondent has more probably issued the notice to produce for a purpose which is not connected with this proceeding,” VLSC submitted.
“Invoking the processes of the tribunal for an ulterior purpose amounts to an abuse of process.”
Mr Smithers said in his judgment that Ms Chen did not identify a “legitimate forensic purpose” for the production of documents.
He added Ms Chen is under an obligation to articulate a proper basis for her allegations against VLSC, which she failed to do.
“Ms Chen cannot simply make assertions of improper conduct, without more, and then contend this is a basis for documents to be ordered to be produced, in the course of conducting the argument about costs,” Mr Smithers said.
“Her request amounts to a fishing expedition.”
Ms Chen’s application for documents was refused.
The remaining costs application will be heard and determined at a later date.
