Applicant v First Respondent

1 The applicant applies by summons dated 24 November 2025 seeking an order staying underlying proceedings in the Victorian Civil and Administrative Tribunal (VCAT) pending the hearing and determination of, among other things, an appeal from a decision of Irving AsJ delivered on 19 November 2025.[1]

2 The applicant's summons does not identify the rule of Court pursuant to which such relief is sought, although it was essentially common ground that the applicable rule is r 77.06.6 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic). In argument, little turned upon the precise source of the power that the Court was being invited to exercise.

(a) the applicant filed and relied upon an affidavit sworn on 21 November 2025, together with exhibits 'JG-1' to 'JG-8' (inclusive);

(b) the applicant referred to and/or handed up copies of several decisions that he sought to rely upon as stating or describing relevant principles;[2]

(c) the applicant handed up three items of apparent publicity that he described as 'one-sided' and generally sought to identify as indicative of the 'irreparable harm' he faces if a stay were not ordered; and

(d) senior counsel for the second respondent, the Victorian Legal Services Commissioner (VLSC), handed up a chronology relating to orders and other steps taken at VCAT and in this Court since April 2022, together with a collection of annexures relating to some of those orders and other steps.

4 The presently relevant principles have been stated in many decisions of the Court of Appeal and Trial Division of this Court, including some of the decisions handed up by the applicant in argument.

5 In Quick v Lam-Ly Pty Ltd,[3] Beach JA stated -

In deciding whether to order a stay of execution, the court has a wide discretion and is required to take into account all of the circumstances of the case. The party applying for a stay bears the onus of demonstrating that a stay is justified. Ordinarily, a successful party is entitled to the benefit (or fruits) of the judgment and the presumption that the judgment is correct.

As has been said many times before, the power to order a stay will generally not be exercised unless the party seeking the same demonstrates special or exceptional circumstances.

Special circumstances may be found to exist where the applicant is able to demonstrate that there is a real risk that it will not be possible to restore the applicant substantially to his or her former position if the judgment against the applicant is executed before the conclusion of the appeal. However, the prospect that the appeal may be rendered nugatory must be balanced against a principal that the successful party is entitled to the fruits of its judgment.

In order to justify the grant of a stay, an applicant should also demonstrate that there is at least an arguable ground of appeal. That said, ordinarily, the court does not have before it sufficient materials to consider, in detail, the merits of the grounds of appeal relied upon in the application for leave to appeal. In such a case, unless there is no arguable ground of appeal, or the appeal is not bona fide, the court ordinarily will focus on matters relevant to the enforcement of the judgment, rather than matters that are relevant to its validity or correctness.[4]

6 Other cases have referred to the sui generis nature of disciplinary proceedings and, consequently, the particular relevance in such cases of factors such as the need to protect the public interest, the seriousness of the conduct that has led to the decision of the Tribunal, the prospects of success on appeal and the extent to which the appeal might be rendered nugatory should a stay not be granted.[5]

7 It is not presently necessary to recite all aspects of the underlying chronology of events, although I should not be thought to suggest that the whole of the steps apparently taken since April 2022 are not of present relevance.

8 On 18 August 2025, VCAT emailed the parties a lengthy decision of a senior member following a hearing held over several days in December 2023 and October 2024. One aspect of the associated order by the senior member was later corrected.[6]

9 In substance, the senior member found eight charges against the applicant under s 300 of the Legal Profession Uniform Law to have been established.

(a) the senior member made findings of professional misconduct as well as a finding of unsatisfactory professional conduct;

(b) in respect of at least one of the charges, the senior member found the applicant's conduct to have been seriously dishonest; and

(c) the senior member ordered, in substance, that the matter be listed for an administrative mention with a view to a penalty hearing at a later date.

11 On 3 September 2025, the senior member made timetabling orders that included listing the matter for a penalty hearing at 2.00pm on 25 November 2025. That, obviously, is today.

12 It seems that prior to or on 3 September 2025, the applicant informed the senior member that he intended to 'appeal' the earlier decision. The senior member referred the applicant to the decision of Ginnane J in Chen v Victorian Legal Services Commissioner[7] and otherwise implicitly declined the submission that the proceeding ought not be listed for a penalty hearing.

13 Subsequently, in respect of the decision to which I have earlier referred, and by affidavit sworn on 17 September 2025, the applicant purported to make an application for review pursuant to the provisions of the Administrative Law Act 1978 (Vic) ('ALA'). It is presently unnecessary to outline the steps that are said to have intervened, however, it seems that the application did not come on for hearing until 7 October 2025 before Irving AsJ.

14 Meanwhile, at VCAT, the applicant seems specifically to have sought that the senior member vacate the earlier timetabling orders as well as the listed date for the penalty hearing. That request was declined on 17 October 2025.

15 In that connection, among other things, the senior member stated -

The Tribunal notes that Mr Guss's application to the Supreme Court of Victoria is not an appeal, and so [Chen v Victorian Legal Services Commissioner [2020] VSC 842] is not directly applicable here. However, it regards it as inappropriate for these proceedings, which have been underway for three years, to be fragmented and for their finalisation to be further delayed. Mr Guss will have the opportunity to appeal and/or conduct other review proceedings, once they have been finalised and all issues decided.

Further, the Tribunal notes Mr Guss's statement that the Court would, at its next hearing on 29 October 2025, consider ordering a stay of the VCAT proceedings until the hearing and determination of the ALA review.

In the circumstances, the Tribunal varies the orders of 3 September 2025 as set out below. These orders will apply, unless and until an order is made to the contrary by the Supreme Court.

16 I should note that the senior member varied aspects of the relevant timetabling orders, although he otherwise confirmed the listing of the matter for a penalty hearing on 25 November 2025.

17 On 29 October 2025, the applicant and the VLSC appeared before Irving AsJ in connection with the application for review. Nothing in the material before the Court suggests that the applicant made any application for a stay of the proceedings at VCAT. The essential issue before Irving AsJ seems to have been whether the application under s 4(1) of the ALA had been made out of time.

18 His Honour reserved his decision and, as I have noted, delivered written reasons (and orders) on 19 November 2025.

19 His Honour's reasons refer to relevant decisions of the Court of Appeal and Trial Division of this Court, as well as applicable statutory provisions and rules of Court. In that connection, his Honour concluded that the application for review was made out of time and, consequently, ordered it to be dismissed.

(a) the applicant filed a notice of appeal in terms that might be described as rather diffuse and discursive;

(b) the applicant made the present application by summons seeking, principally, a stay of the penalty hearing at VCAT; and

(c) the applicant sought that the senior member adjourn the penalty hearing listed for 25 November 2025 at 2pm - which was refused.

21 In argument, the applicant submitted that his appeal from the decision of Irving AsJ is one of public importance that also enjoys reasonable prospects of success. The applicant advanced the latter contention in respect of the underlying application for review, if his appeal from the decision of Irving AsJ were successful.

22 In his affidavit sworn on 21 November 2025, the applicant deposed as follows -

... the review would be rendered nugatory and I would suffer irreparable reputational, financial and other damage if the penalty hearing fixed by the Tribunal for 25 November 2025 were allowed to proceed...

23 In argument, the applicant expanded upon that submission and said that if the penalty hearing were to proceed this afternoon, and penalties were to be imposed, he would suffer 'irreparable harm'.

(a) he submitted that while it is 'trite' to say that he would later have an ability to appeal on a question of law from an order of VCAT under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), the 'damage' would already be done;

(b) he handed up three items of publicity to which I have earlier referred and said that a penalty hearing would 'effectively destroy me';

(c) he said that since publication of those items he has had 'few clients', no new clients and the 'phone doesn't ring any more'; and

(d) he submitted that the penalty hearing would create further such harm.

25 By way of contrast, the applicant submitted that there would be no prejudice to the VLSC, albeit that there would be delay which, he said, 'is normal when you have litigation'.

26 I should add that, in his affidavit, the applicant also says that Irving AsJ only delivered his decision on 19 November 2025 and so '[t]his application could not have been [made] earlier'.

27 For its part, the VLSC submitted, in substance, that -

(a) the chronology identifies numerous delays and incidents of non-compliance by the applicant;

(b) the present risk of publicity is no different to that in other such cases and does not amount to special or exceptional circumstances;

(c) the applicant's appeal from the decision of Irving AsJ enjoys 'very poor' prospects;

(d) in any event, the applicant may and probably will later appeal under s 148 of the VCAT Act; and

(e) VCAT has made findings that a solicitor has engaged in serious dishonesty and, accordingly, there is a strong public interest in the proceedings at VCAT being brought to a conclusion.

28 In reply, among other things, the applicant said that an appeal under s 148 of the VCAT Act would take 'some time' and, at that point, there would 'have to be stays' anyway.

29 As earlier noted, the Court is asked to exercise a discretionary power. The applicable principles are settled.

30 In substance, the applicant bears the onus of demonstrating that a stay is justified. Generally, such a power will not be exercised unless special or exceptional circumstances are shown.

31 The starting point must be whether there is any arguable ground of appeal. I have already mentioned the form of the applicant's notice of appeal. I have also read the reasons of Irving AsJ, which, as noted in argument, refer to relevant and apparently applicable decisions of the Court of Appeal and Trial Division. In the circumstances, I do not accept that there is any question of public importance.

32 As to prospects of success, I am conscious of the manner in which the present issue must be approached. I could not conclude that there could be no arguable ground of appeal. That said, the applicant's prospects in the appeal do not present as at all strong and might best be described as no more than speculative.

33 As to the underlying application for review (if the appeal from the decision of Irving AsJ were successful), I am realistically in no position to assess the extent to which there might be any merit in that hypothetical event, although I note that the senior member has delivered very detailed and seemingly complete reasons for the findings made.

34 As noted, the applicant also says that if a stay is not granted that -

(a) his appeal and application for review will be rendered nugatory; and

(b) there are risks of reputational and other damage.

35 I do not consider the risks of further publicity to be a significant factor. There seems already to have been publicity, and the applicant now claims that it has led to him obtaining no new clients or even any telephone calls. Even if any of that is correct (about which I say nothing, as it emerged only in argument and was not deposed to in the applicant's affidavit), it is hard to see how publicity in respect of a penalty hearing, and any subsequent imposition of orders, could affect the applicant much more than the position he already claims to find himself in.

36 More broadly, perhaps, I should say that it would have to be an unusual case in which such risks of publicity should be thought to present as a factor that could justify or lend significant support to any conclusion that the overall circumstances were sufficiently special or exceptional.

37 As to the risk of rendering the appeal and underlying application for review nugatory, the VLSC submitted, and I accept, that -

(a) the applicant might be expected to appeal any substantive orders ultimately made by VCAT; and

(b) at that point, assuming that there is a question or questions of law, the applicant is likely to be able to pursue the substance of the points sought to be advanced in his application for review as well as any other points arising from any penalty ordered.

38 Further, upon the commencement of any such appeal, the applicant may well apply to VCAT seeking a stay and, indeed, handed up a copy of a case in which exactly that had occurred.[8]

39 To me, such prospects present as real, and tend to underline that it is not presently known what penalty might be ordered at VCAT or, indeed, when that might occur. None of that suggests that there is any immediate need for the relief presently sought.

40 That brings me to the assertion that the applicant could not have sought a stay until after the decision of Irving AsJ on 19 November 2025 and, in the result, on the morning of the listed penalty hearing.

41 I do not accept that the applicant has been so constrained. In effect, the orders of the senior member of 17 October 2025 show that not to have been the case.

42 Further, no explanation was given for why such a step was not pursued before Irving AsJ on 29 October 2025, as seems to have been intimated to the senior member, or, indeed, at any other time before or since. After all, the substance of what is presently sought is a stay of the penalty hearing, and that was scheduled by orders made by the senior member on 3 September 2025.

43 To all of the above, of course, must be added at least some degree of weight in respect of the following further considerations -

(a) the VLRC is entitled to the fruits of its judgment;

(b) the underlying proceedings are disciplinary in nature;

(c) some of the conduct has been found to have been seriously dishonest; and

(d) there is an interest in protecting the public.

(a) I am not satisfied that special or exceptional circumstances have been shown; and

(b) more broadly, the applicant has not discharged his onus of demonstrating that a stay is justified.

[1] Guss v Victorian Civil and Administrative Tribunal [2025] VSC 708.

[2] Maher v Commonwealth Bank of Australia [2008] VSCA 122; Hoskin v Victorian Civil and Administrative Tribunal & Ors [2015] VSCA 270; Kingston CC v Lantrak Developments Pty Ltd [2020] VCAT 1181 ('Kingston CC'); Dobson v Australian Postal Corporation [2013] FCA 320.

[3] [2019] VSCA 111.

[4] Ibid [27]-[30] (citations omitted).

[5] Frugtniet v Law Institute of Victoria Limited [2011] VSCA 184, [10]-[12]. See also Medical Board of Australia v Aly [2021] VSC 819, [18]-[20].

[6] Victorian Legal Services Commissioner v Guss (Legal Practice) (Corrected) [2025] VCAT 714.

[7] [2020] VSC 842.