Beling v Victorian Legal Services Commissioner

1 In October 2019, Mr Joel Beling commenced this proceeding seeking leave to appeal orders of the Victorian Civil and Administrative Tribunal ('VCAT' or the 'Tribunal') finding him guilty of disciplinary charges of professional misconduct and unsatisfactory professional conduct. A Senior Member delivered his decision on 12 July 2017 and subsequently a penalty decision on 27 September 2017. Mr Beling filed a summons for a directions hearing to appeal the Tribunal's decisions more than two years out of time.

2 A Judicial Registrar decided Mr Beling's extension of time application as a preliminary point considering that 'it was appropriate in all the circumstances to list the extension of time application separately'.[1] The Judicial Registrar refused Mr Beling an extension of time, dismissed his notice of appeal and ordered him to pay the costs of the application. The Judicial Registrar concluded that Mr Beling had not provided an explanation for his delay and had not established that there was sufficient merit in his proposed appeal to warrant granting him an extension of time.[2] The effect of the Judicial Registrar's orders was that this proceeding was dismissed.

3 This judgment concerns Mr Beling's appeal from the Judicial Registrar's orders.

4 Between August 2012 and January 2013, Mr Beling acted as a legal practitioner for Tracie and Peter Hanna in a proceeding they commenced against the Australian and New Zealand Banking Group Limited ('ANZ') in the Federal Magistrates' Court. The retainer ended in January 2013 when Mrs Hanna disagreed with the amount of fees which Mr Beling charged and in turn, Mr Beling was concerned that the Hannas were behind in their payment of those fees.

5 On 21 February 2013, Mrs Hanna lodged a complaint with the respondent, the Victorian Legal Services Commissioner ('the Commissioner') against Mr Beling. On 20 May 2014, the Commissioner advised Mr Beling by letter that it was possible that a finding of professional misconduct or unsatisfactory professional conduct might be made against him as a consequence of Mrs Hanna's complaints. The Commissioner gave Mr Beling an opportunity to provide written submissions in response. On 18 July 2014, Mr Beling provided his fourth response to the Commissioner in a lengthy document, describing the steps that he had taken on behalf of the Hannas.

6 On 23 December 2014, the Commissioner decided under s 4.4.13 of the Legal Profession Act 2004 ('the LPA') that he was satisfied there was a reasonable likelihood that Mr Beling would be found guilty of professional misconduct. As a consequence, the Commissioner was obliged by the LPA to apply to VCAT for an order in relation to Mr Beling. The Commissioner's proceeding against him in VCAT involved two charges of professional misconduct at common law, and two charges of statutory professional misconduct. The charges were heard on various dates before a Senior Member between November 2016 and 8 May 2017. On 12 July 2017, the Senior Member found Mr Beling guilty of one charge of professional misconduct at common law (charge 1). On another charge (charge 3), the Senior Member found Mr Beling guilty of unsatisfactory professional conduct applying s 4.4.20 of the LPA. The other two charges were dismissed on the basis that they were alternative charges. The Senior Member then adjourned the proceeding to hear submissions about penalties.

7 On 27 September 2017, the Senior Member, delivered his decision on penalty which included that Mr Beling was reprimanded, ordered to pay a fine of $10,000 to the Victorian Legal Services Board, required to practise only under supervision for three years, pay the Commissioner's costs in relation to charges 1 and 3 and obtain ten extra CPD points over two years from the time of the decision.

8 The Senior Member described the case that Mr Beling pursued on behalf of the Hannas and the draft statement of claim he prepared for mediation purposes as being very substantially based on statements alleged to have been made to Mrs Hanna by unnamed ANZ employees in a telephone conversation on 27 April 2011. She said that they told her that a default letter had been sent to Mr Hanna and that all arrears on his accounts had to be paid by 29 April 2011 or the ANZ would commence foreclosure proceedings against him. She was told on four or five occasions that this default notice would be re-sent to them. In fact, the notice did not exist.[3]

9 Mr Beling had commenced various proceedings. On 15 April 2013, he filed an application in VCAT seeking to recover his fees from the Hannas[4] and on 23 June 2013 the Hannas filed an application, in effect, a counterclaim alleging overcharging and negligence.[5]

10 Mr Beling commenced his first proceeding in this Court on 17 November 2014 seeking judicial review of aspects of the Commissioner's investigation ('the 2014 proceeding'). On 5 January 2015, Mr Beling informed the Court and the Commissioner by email that he intended to apply for leave to discontinue the proceeding. However, because his application was not in the appropriate form and had not been filed, the Commissioner, out of an abundance of caution, applied to the Court on 20 February 2015 to summarily dismiss the proceeding. On 22 April 2016, an Associate Justice dismissed the proceeding and ordered Mr Beling to pay costs. He sought leave to appeal the orders of the Associate Justice almost 4 years, out of time. In a judgment delivered today, I have dismissed that application because Mr Beling has not provided valid reasons for his delay and has not established that he has prospects of succeeding in his appeal if an extension of time were granted.

The history of the 2014 proceeding and this proceeding

11 The two proceedings were listed for hearing on 26 March 2021, but Mr Beling sought their adjournment so that he could make interlocutory applications and have them determined before the proceeding was heard. Mr Beling's first application sought leave to join the Tribunal as a second defendant to the proceedings. The second sought leave to serve interrogatories directed to the Tribunal in the 2019 proceeding. The third sought leave to file and serve a notice to admit on the Tribunal in the 2019 proceeding.

12 I refused each of the applications. I granted Mr Beling leave to rely on an amended notice of appeal from the Judicial Registrar's orders.[6] I ordered that Mr Beling pay the Commissioner's costs of the applications.

13 On 13 September 2021, the Court of Appeal refused Mr Beling leave to appeal my orders.[7]

14 Following the Court of Appeal's decision, both this proceeding and the 2014 proceeding were listed for hearing on 5 October 2021. However, on 1 October 2021, Mr Beling's applied to the High Court for special leave to appeal the Court of Appeal's orders. Therefore, I adjourned the hearings until 9 December 2021 and then, because the special leave applications had yet to be determined, until 19 May 2022, by which time the High Court had refused Mr Beling's applications for special leave to appeal.

15 At the commencement of the hearing on 19 May 2022, Mr Beling again made interlocutory applications seeking substantially similar orders to those refused in 2021 based on 'new facts and circumstances'.[8] He sought leave to join VCAT as second defendant, amend the notices of appeal, serve a notice to admit and interrogatories on VCAT and serve interrogatories on the Commissioner. The Commissioner opposed these applications.

16 I have dealt with those interlocutory applications in the judgment 2014 proceeding delivered today and rely on the reasons that I give there for dismissing Mr Beling's summons seeking interlocutory orders.[9]

VCAT's summary of the allegations on which the four charges were based

17 The Senior Member identified the following nine key allegations on which the Commissioner based the four charges brought against Mr Beling:

1. preparing and relying on a draft statement of claim which suffered serious deficiencies;
2. failing to give his clients adequate advice on their prospects of success;
3. not providing sufficient costs disclosure, or estimates of costs;
4. following his client's instructions despite accepting they were 'clearly wrong, unwise and inappropriate' in circumstances where he had failed to make adequate efforts to advise them as to what course of action was in their best interests;
5. maintaining a file which did not record appropriate care and conduct of his clients' proceeding;
6. failing to provide advice in written form, despite having been told Mr Hanna was legally deaf;
7. according to Mr Beling's own statement to the Commissioner on 22 April 2014 providing advice to the Hannas which was solely comprised of advice given before they signed the costs agreement on 29 August 2012;
8. failing to provide the Hannas with legal advice explaining the issues in the case and their rights and obligations in relation to it; and
9. billing his clients fees in the order of $50,000 for the services described above.

18 In summary, the four charges against Mr Beling alleged:[10]

Charge 1 - professional misconduct at common law comprising failure to exercise due care and competence in acting for the Hannas. Charge 1 relied on all nine of the allegations listed above.

Charge 2 - professional misconduct at common law comprising a failure to exercise due care and competence in failing adequately to advise the Hannas in the course of his retainer. Charge 2 relied on the same particulars as charge 1, save that it did not rely on allegations 1 and 9 namely the preparation of the draft statement of claim and charging $50,000 for his services. It relied on allegations 2 - 8.

Charge 3 - statutory professional misconduct comprised by a breach of Rule 12.2 of the Professional Conduct and Practice Rules 2005 ('the Rules'), which states:

A practitioner must seek to assist the client to understand the issues in the case and the client's possible rights and obligations, if the practitioner is instructed to give advice on any such matter, sufficiently to permit the client to give proper instructions, particularly in connection with any compromise of the case.

Charge 3 alleges a failure adequately to advise the Hannas in the circumstances so as to permit them to give proper instructions. This was alleged to comprise a consistent failure to reach or maintain a reasonable standard of competence and diligence. It related to the whole of the period of the retainer. Charge 3 relied on the same particulars as charge 2. That is, it related to allegations 2-8 above, but not 1 and 9.

Charge 4 - similarly to charge 3, charge 4 alleged statutory professional misconduct comprised by a breach of Rule 12.2, being a consistent failure to reach or maintain a reasonable standard of competence and diligence, but confined to the adequacy of the advice given to the Hannas in writing prior to the mediation on 26 November 2012. Charge 4 alleged a failure to seek to assist the Hannas to understand the issues in the case and their rights and obligations, so as to permit them to give proper instructions in connection with the compromise of the case. Charge 4 relates to allegations 2, 3, 5, 6, and 8 only. It does not concern the draft Statement of Claim, allegation 1, nor the acceptance of wrong, unwise and inappropriate instructions, allegation 4, nor the admission of 22 April 2014 that the advice given was limited to advice prior to 29 August 2012, allegation 7, nor the amount billed to the Hannas, allegation 9.

19 A person seeking an extension of time in which to commence a proceeding must generally explain the reasons for their delay and establish that an extension would have utility in the sense that the proceeding must have sufficient prospects of success, so that there might be a purpose in permitting its commencement. If there is a proper explanation for the delay, then the interests of justice ordinarily require an extension of time be granted if it might have some utility. An extension of time will not be granted if the case is hopeless, unarguable, or bound to fail, because, in those circumstances, it would serve no purpose.[11]

20 Mr Beling was aware of the time limit for seeking leave to appeal, but made a deliberate decision not to seek to commence this proceeding and the 2014 proceeding within the time permitted. Mr Beling explained that: [12]

In light of the above alleged serious misconduct by the Commissioner and VCAT, and the alleged serious misconduct by former Associate Justice Derham in [the judicial review proceeding]... I say that I made a deliberate and considered tactical decision not to appeal the decisions of VCAT dated 12 July 2017 and 27 September 2017 and the decision of ... [Derham AsJ] dated 22 April 2016 within the prescribed statutory time frame, because of a grave fear of a reasonable apprehension of bias or actual bias, and because I could not risk losing my and my children's home on a judiciary who had shown a tendency to falsify documents and cover up evidence of clear misconduct by the Commissioner. In other words, I was fearful the Supreme Court would not bring an objective, fair and impartial mind to adjudicating the issues in dispute because two judicial members of the Court had already allegedly falsified documents and covered up clear misconduct by the Commissioner...

21 Mr Beling's disputes with the Commissioner have already led to two Court of Appeal judgments, which reject some of the arguments on which he relies in this proceeding. Despite those two judgments, Mr Beling has persisted with arguments that the Court of Appeal rejected. In one of the judgments,[13] the Court dismissed applications for leave to appeal from my judgment of 1 July 2021 in which I dismissed Mr Beling's interlocutory applications in this proceeding and the 2014 proceeding to join VCAT as a party, and to serve interrogatories and a notice to admit, to seek discovery and to amend notices of appeal.[14]

22 Of present relevance is that the Court of Appeal rejected Mr Beling's argument that the Tribunal had earlier rejected, that his VCAT case file had been manipulated, and was not authentic, because documents had been removed from it.[15] The Court stated that he did not raise this allegation in VCAT because it would not have suited him forensically to do so.[16] The Court also rejected his allegations of misconduct against VCAT and impropriety by an Associate Justice who decided the 2014 proceeding stating: [17]

The applicant also says that VCAT was complicit in the removal of the documents. He later said that he did not raise this allegation in VCAT because it would not suit him forensically to do so. Subsequently, he has alleged serious impropriety on the part of the Associate Justice related to the proceeding and the file.

Two points must be made clearly. First, at no stage has the applicant supported his grave allegations of fraud, misconduct, collusion, and impropriety by evidence or cogent material. The allegations have never risen higher than assertion. Second, the applicant has repeatedly said that the respondent has admitted the wrongdoing. Such admissions were said to arise from the failure of the respondent to deny the allegations on oath and because the respondent consented to the applicant filing an amended notice of appeal from the Associate Justice and from VCAT. Although we deal with this more fully when we turn to proposed grounds 5 and 6, it can be stated at once that the failure to deny the allegations on oath does not constitute an admission. Further, consent to a party filing an amended pleading does not in any way amount to an admission as to the truth of the allegations contained in the pleading.

23 The second Court of Appeal decision arose from County Court orders in proceedings commenced by the Commissioner to recover from Mr Beling a debt due under a settlement agreement concerning costs awarded against him in the 2014 and the VCAT proceedings. Judge Cosgrave had made orders striking out Mr Beling's defence and counterclaim with leave to file a proposed amended defence and counterclaim and ordered him to pay the Commissioner's costs. Subsequently, Judge A Ryan refused Mr Beling's application for leave to file and serve the proposed amended defence and counterclaim and granted the Commissioner's application for summary judgment. She ordered Mr Beling to pay the Commissioner's costs.

24 The Court of Appeal refused Mr Beling an extension of time to appeal Judge Cosgrave's orders, after he had delayed 12 months and also refused him leave to appeal Judge Ryan's orders. The Court noted that Mr Beling's delay was the product of his deliberate decision.[18] It concluded that 'while pressures of Mr Beling's work and family life at the time might account for some minor aspects of the delay, they did not, and could not, logically account for the delay of twelve months.'[19] It noted that Mr Beling made unsubstantiated allegations concerning the Commissioner and other persons associated with the case which lacked any evidentiary support.

25 The Court of Appeal found that Mr Beling's allegation of file tampering was 'entirely without evidentiary foundation.'[20] 'There is no evidence at all to substantiate the grave allegation that the Commissioner in some way conspired and colluded with VCAT to forge and falsify Mr Beling's client files in the disciplinary hearing,'[21] and 'in any event that alleged conduct predated the entry of the parties into the settlement deed by two years.'[22] The Court of Appeal described the allegation of file tampering as having never risen higher than assertion.[23] It also said that:[24]

Significantly, during the hearing of the VCAT proceeding Beling did not cross-examine Ms Freeman about the authenticity of the file that she annexed to her statement in the proceeding.

26 The Court reached the same conclusion with Mr Beling's allegations of an undefined conspiracy between three judicial officers, which the Court of Appeal described as being 'entirely unsupported' and which should not have been made.[25] The Court stated that there was no proof of 'the allegation of some form of undefined conspiracy between three judicial officers.'[26] On another point, the Court stated that the Commissioner's offer to settle was not admissible evidence.[27]

27 Mr Beling relied on other matters to justify his delay in this proceeding. He said that he was impecunious and unable to afford legal representation or advice. However, he was a legal practitioner who has acted for himself in the many branches of his disputes with the Hannas and the Commissioner. He has demonstrated that he is able to commence proceedings in time, as he did with this appeal from the Judicial Registrar's orders. He said that the Commissioner had behaved oppressively and refused to cooperate to narrow the issues in dispute as she was obliged to do under the Civil Procedure Act 2010. There is no evidence of such oppression and, if Mr Beling considered that it had occurred, that was all the more reason for him to commence this proceeding in time. Mr Beling emphasised that the proceeding concerned the important issue of holding the Commissioner, as the regulator of the legal profession, accountable to adhere to the rule of law. But if Mr Beling wished to pursue that issue, he should have commenced this proceeding in time. He submitted that the Commissioner would suffer no prejudice if time were extended. However, there is always prejudice in delaying proceedings which attack the conduct of persons and which may require the reconstruction of events occurring long in the past.

28 Mr Beling wanted to adduce fresh evidence in support of his explanation for an extension of time which I consider below. He relied on the Tribunal's delay in determining his proceeding against the Hannas for fees he claimed were owing, in which proceeding relevant evidence had been produced. He also relied on the Commissioner's refusal to respond to the allegations made in his affidavit.

29 The Commissioner described Mr Beling's conduct as involving inordinate delay for which he had provided no adequate explanation. He had made a deliberate decision not to appeal. His complaints were substantially about conduct that occurred after the conclusion of the VCAT proceeding and after the expiration of the time for him to appeal VCAT's orders. He relied on events occurring in the County Court proceeding which had no relevance to this application.

30 As part of his application for an extension of time, Mr Beling sought leave to adduce fresh evidence, which he described in his affidavits of 26 August and 2 and 3 October 2020 and which he argued provided 'fresh and compelling evidence which was not available at the time of the hearing'.[28]

31 On 20 March 2020, in advance of the hearing before the Judicial Registrar, the Court emailed the parties stating:[29]

The application to adduce fresh evidence is a matter more appropriately heard, if an extension of time is granted, alongside the application for leave to appeal, and, if granted, the appeal. The material provided by Mr Beling in support of the application to adduce fresh evidence has been considered by the Judicial Registrar, and may be referred to when Reasons are provided in the extension of time application.

32 However, the parties addressed the question of whether Mr Beling should be allowed to provide further evidence both before the Judicial Registrar and on this appeal.

33 The Commissioner pointed out that the proposed grounds of appeal refer to Mr Beling seeking to adduce 'fresh evidence' from persons involved in two VCAT proceedings and a County Court proceeding.[30] But the Commissioner argued that such evidence was not relevant and concerned other proceedings dealing with other issues, to which the Commissioner was neither a party nor a witness. Mr Beling had not shown how the fresh evidence might have an important influence on the result of this case.

34 Mr Beling's affidavits identified the fresh evidence as including a settlement deed he made with the Commissioner, and his email correspondence with the Commissioner about his client file, which included allegations that the Commissioner had tampered with the file. He also referred to documents connected with the County Court proceeding. He also sought to lead evidence from a judicial resolution conference to the effect that the Commissioner was prepared to accept a lower amount for costs than had originally been claimed, but the Court of Appeal said that that evidence could not be admitted.

35 I do not consider that the 'fresh' evidence was relevant to the issues in dispute. The evidence or allegations were in existence at the time of the Tribunal hearing, or had been rejected as without foundation by the Court of Appeal, or contained material that was not admissible, or concerned other proceedings, such as the County Court proceeding.

36 That material is not relevant to the extension of a time period which had expired before the occurrence of most of the events which were said to be fresh evidence. The same is so with email correspondence between Mr Beling and the Commissioner's solicitor concerning the VCAT proceeding.

37 I dismiss Mr Beling's summons of 26 August 2020 seeking leave to adduce further evidence.

Analysis of Mr Beling's explanation for his delay in commencing the proceeding

38 I consider that Mr Beling has not provided an adequate explanation for his delay in commencing this proceeding. His delay was very long and followed his deliberate decision not to commence this proceeding within time.

39 None of the matters that Mr Beling advanced to explain his delay provided a justification for it. The delay was substantial and his lack of resources and other difficulties do not explain a delay of that magnitude.

40 Despite my conclusion that Mr Beling did not provide an adequate explanation for his delay in commencing this proceeding, it is necessary to consider his prospects of success in challenging the Tribunal's orders if he had commenced this proceeding within time, as that issue is relevant to the exercise of the discretion to extend time.

41 The appeal requires a de novo hearing of Mr Beling's application for an extension of time in which to commence this proceeding. To succeed on this appeal Mr Beling does not have to establish an error in the Judicial Registrar's orders and decision, as the Court must decide his application for an extension of time afresh.[31] The time permitted for an application for leave to appeal orders of VCAT is 28 days, but the Court may extend it.[32]

42 The parties approached the questions and grounds differently. Mr Beling addressed most of his proposed questions of law and associated grounds of appeal. The Commissioner made more limited submissions about them explaining that the only issue before the Judicial Registrar and on the appeal, was whether Mr Beling ought to be granted an extension of time. The Commissioner relied on passages in the Judicial Registrar's reasoning to support the submission that Mr Beling should not be granted an extension of time, and to demonstrate that the Judicial Registrar did not make an error in refusing to grant the extension. She submitted that Mr Beling had not presented an arguable case to justify an extension of time.

43 Mr Beling's proposed amended notice of appeal contains 18 questions of law and 138 proposed grounds of appeal and included many duplications. I will only consider those about which he made specific submissions. Many of the matters that he raised are in substance factual issues or statements of his discontent that since the VCAT decisions, the Commissioner's staff have not provided him with affidavits and other assistance that he required to make his appeal.

Relevant principles governing appeals from VCAT's orders

44 An appellant cannot challenge VCAT's findings of fact in an appeal under s 148 of the VCAT Act save in limited circumstances. As Warren CJ stated in Myers v Medical Practitioners' Board of Victoria:[33]

... Essentially, by seeking to impugn various findings of fact, the appellant is seeking to rely on the error of law discussed in the judgment of Phillips JA in S v Crimes Compensation Tribunal. Accordingly, if there are any grounds of appeal with respect to the tribunal's decision, they would be, with respect to each of the board's allegations made out against Dr Myers:

(1) that the tribunal's primary findings of fact were not open on the evidence before it;

(2) that it was not open for the tribunal to find that the primary findings of fact substantiated each allegation made out against the appellant; and

(3) that it was not open for the tribunal to find that the various charges against the appellant constituted unprofessional conduct as defined in s 3 of the [Legal Profession] Act [2004].

45 VCAT was the fact-finding tribunal in Mr Beling's dispute with the Commissioner and s 148 of the VCAT Act only permits an appeal to this Court from VCAT's orders on questions of law, not on questions of fact or because of a disagreement about the merits of a proceeding. An appeal on a question of law cannot be used to argue the merits or to contend that differing findings of fact were appropriate. A challenge to a finding of fact can only amount to a question of law where there was no evidence to support the finding.[34]

46 Many of Mr Beling's proposed grounds of appeal sought to re-argue issues or matters concerning evidence that he had argued unsuccessfully before the Tribunal. The Tribunal's findings on those issues did not involve any question of law and Mr Beling could not appeal against them.

47 Against that background, I will now consider Mr Beling's proposed questions of law and their associated grounds of appeal to determine if they have sufficient merit to influence the decision of whether to grant him an extension of time. I will consider whether his grounds disclose an arguable case.

Mr Beling's advice to the Hannas and the draft proposed statement of claim -questions of law 1 and 4

48 Mr Beling seeks to challenge the Tribunal's findings about the advice that he gave the Hannas and the content of the draft statement of claim that he prepared ('the draft statement of claim)'. These issues were raised in questions of law 1 and 4, which state:

Whether the Tribunal failed to give consideration or sufficient consideration to evidence and/or submissions relevant to the Tribunal's conclusion regarding the finding of guilt in relation to Charge 1.

...

Whether the Tribunal has erred in using the wrong legal test to determine whether the causes of action pleaded in the draft Statement of Claim had a proper basis, improperly using the tests no "good" basis, no "realistic" basis, no "coherent" basis, no "sufficient" basis and no "objective" basis.

49 Mr Beling argued that the Tribunal did not sufficiently consider that the Hannas signed a settlement agreement with the ANZ, the conduct of the Commissioner, that the draft statement of claim was prepared for mediation purposes only and would have been revised before being filed and served, that legal practitioners are entitled to make robust arguments on behalf of their clients and that the retainer and fees he charged were for the entire litigation which might have lasted for up to two years.

50 Mr Beling also contended that the claims he advanced for the Hannas had multiple factual bases and any dispute about that should only have been decided after all the evidence was in. He challenged the Tribunal's comments about the draft statement of claim and argued that the Tribunal had adopted a more lenient approach to the adequacy of pleadings in other cases.

The Tribunal's conclusions about the draft statement of claim

51 The Tribunal described the draft statement of claim as follows:[35]

On 9 November 2012, [Mr Beling] sent a 'draft Statement of Claim for the purposes of mediation' to the ANZ's solicitors. Although it was not filed, it was intended to inform the ANZ broadly of the case which would be brought against it. As I find below, this document was clearly deficient in a number of fundamental ways. It listed a large number of provisions of various consumer protection laws which it alleged had been breached by the ANZ. I made many serious allegations including dishonesty, fraud and falsification of documents. It sought the maximum amount payable under the FMC's jurisdiction of $750,000. This was stated to be comprise specific amounts totalling $163,000. The remaining $587,000 appeared to be compromised by 'stress and damages' and 'loss of reputation'.

52 The Tribunal described the purpose of the statement of claim as follows:[36]

It is clear Mr Beling intended that this document would substantially form the basis of the Statement of Claim the Hannas would file four weeks after the mediation (if it was not successful) subject to it being polished and amended by counsel. During the hearing, in response to the question whether the draft was 'well short of final form', Mr Beling said 'no'.

53 VCAT is the primary finder of facts in disputes before it, but its findings must be based on the evidence, in the sense that there must be, at least, some evidence to support them. But, once that requirement was satisfied, it was for VCAT to decide what significance to give to evidence and what conclusions to draw from it. It was not obliged, especially after a lengthy hearing, in this case lasting 12 days, to refer to every item of evidence. Rather it was obliged to consider and decide the issues presented to it by identifying the evidence that it viewed as relevant to their determination. The Senior Member delivered lengthy reasons of 83 pages and referred to much of the material that Mr Beling says was not considered or sufficiently considered. An example is the first proposed ground of appeal under the first question of law. In fact, the Tribunal did refer to the Hannas' settlement agreement with the ANZ in June 2013,[37] but considered, as it was entitled to, that that settlement did not assist Mr Beling, because it occurred long after he had ceased to act for the Hannas[38] and after Mrs Hanna had filed a complaint about him with the Commissioner. In any event, that settlement did not proceed.

54 While, as Mr Beling pointed out, he obtained details of barristers' fees, he did not retain a barrister to settle or revise the statement of claim because he said that Mrs Hanna would not provide the necessary fees. But he relied on it at the mediation.

55 The Tribunal described Mr Beling's professional conduct in the following passage:[39]

Mr Beling took over the conduct of a proceeding commenced by lay clients where the claim was in hopelessly inadequate form and in dire need of redrafting. Instead of bringing clarity and coherence, however, Mr Beling enlarged the scope of the claims made without an objectively justifiable basis, and magnified the confusion.

56 Both the Tribunal's own assessment of the draft statement of claim and Mr Malcolm Howell's expert evidence given as part of the Commissioner's case provided a basis for these conclusions. The Tribunal did not err in referring to the importance of protecting the public. This was an important consideration in determining the standard of professional conduct that might reasonably have been expected of Mr Beling.

57 Mr Beling contended that the Commissioner failed to put the allegations underpinning charge 1 to Mr Matthew Hicks, an experienced solicitor, who he called to give expert evidence and, therefore, the Tribunal erred in finding him guilty of that charge. But the Tribunal referred to Mr Hicks' evidence in deciding whether the Commissioner had proved the disciplinary charges, and on some issues accepted it. Mr Hicks and Mr Howell provided expert evidence and the Tribunal's task was to assess that evidence and reach its own conclusions. The Tribunal did not err by preferring one expert's opinion over another.

58 Questions of law 1 and 4 and the attached grounds do not identify any arguable error by the Tribunal. Its findings about Mr Beling's advice to the Hannas and the adequacy of the draft statement of claim were open on the evidence.

The Tribunal's findings about Mr Beling's potential future conduct - question of law 13

59 It is next convenient to consider Mr Beling's thirteenth question of law which was:

Whether the Tribunal has erred in penalising the Applicant for potential future conduct, namely its finding that "[t]he potential for abuse of process by the making of such allegations [in the draft Further Amended Statement of Claim] is something which practitioners generally, especially those involved in litigation, must be very careful to consider, and to avoid": at [35].

60 Mr Beling contended that the Tribunal erred by conducting a hypothetical trial about the content of the statement of claim when it was filed and served. He could not be penalised for future conduct, meaning the final form of the statement of claim, when that stage had not been reached. He would have briefed a barrister to settle it before it was filed with the Court.

61 Question of law 13 and the proposed appeal grounds do not identify any arguable error by the Tribunal. It was entitled to take into account that the draft amended statement of claim had been relied in the mediation and that it might be used in the ongoing litigation. Mr Beling said as much. Mr Beling did not establish that the Tribunal made an arguable error as alleged in question of law 13 and the attached grounds.

62 Mr Beling's second proposed question of law was:

Whether the Tribunal failed to give consideration or sufficient consideration to relevant evidence and/or submissions relevant to the Tribunal's conclusion regarding the finding of guilt in relation to Charges 1 and 3.

63 This question of law had attached to it many proposed grounds of appeal, some of which overlapped with those attached to questions of law 1 and 4. They include the nature of the advice that Mr Beling provided to the Hannas and the means by which it was provided.

64 The question of whether the Tribunal gave sufficient consideration to evidence does not usually give rise to a question of law.

65 The Tribunal found that Mr Beling 'did not provide adequate written advice to the Hannas, as was required, considering the importance and complexity of the matters involved.' [40] Mr Beling argued that the Tribunal erred in finding that his legal advice to the Hannas should have been in writing and not conveyed orally. The Tribunal did not acknowledge that he made several reasonable adjustments to the means by which he provided legal advice to Mr Hanna due to his disabilities. Thus, his oral advice was a reasonable adjustment for a client with disabilities, like Mr Hanna, so as to meet the requirements of the Equal Opportunity Act 2010. In any event, legal advice can be given in writing or orally. Mr Howell gave expert evidence that it would have been competent for Mr Beling to advise the Hannas orally and not in writing, given Mrs Hanna's philosophies and biases.

66 Mr Beling submitted that the Tribunal erred in taking into account that he had not provided the Hannas with a letter encapsulating all his legal advice and had wrongly applied hindsight in concluding that his legal advice was inadequate. It had erred in concluding that he should have advised the Hannas to settle earlier, especially at the mediation. It did not consider the fact that he qualified his advice by noting the need to obtain privileged documents, which the ANZ would fight vigorously to keep privileged. Nor did he have copies of the mortgage and loan documents.

67 Mr Beling also argued that the Tribunal failed to take into account the Hannas' instructions including that he should seek a large out of court settlement sum. Nor did it consider Mrs Hanna's desire to 'take a stand against the banks'.[41]

68 Mr Beling also argued that the Tribunal took into account irrelevant factors, which included the approach adopted by Mr John Mahoney, a solicitor who had previously acted for the Hannas and the Hannas' illnesses. The Tribunal substituted its own settlement figure for what it regarded as a 'successful outcome'. It made a suppression order to protect the Hannas' identities and medical histories and then reversed that order.

69 Mr Beling challenged the Tribunal's findings that he was 'out of his depth,' that in discouraging the Hannas from attending the mediation he 'exacerbated their situation,' and that there were 'no external influences able to "reality check" his and Hannas' approaches to the litigation'. The Tribunal should not have found him guilty of charge 3 because on its findings of fact, he clearly aimed to 'seek to assist' the Hannas understand the issues in the case and their rights and obligations based on the material to hand as that phrase is defined in Rule 12.2.

The Tribunal's findings about the adequacy of Mr Beling's advice

70 The Tribunal found that the simpler and clearer the written advice that Mr Beling provided, the more likely that it would overcome the effects of any manipulation by Mrs Hanna. In addition, as she was also Mr Beling's client and was said not to suffer from the disadvantages that Mr Hanna did, she was entitled to receive advice in the most precise, accurate and form, that is, in writing. The Tribunal stated: [42]

The VSLC accepted that sometimes it is enough for oral advice to be given. On other occasions, written advice is necessary. It is hard to see how oral advice could have been sufficient in the circumstances of this case. In any event, Mr Beling was not able to demonstrate that he gave satisfactory oral advice.

... the most serious aspects of the conduct I have found Mr Beling engaged in which are the subject of charge 1 are: the preparation of such an unprofessional document in the form of the draft Statement of Claim, the failures to carry out a proper analysis of his clients' position, to provide his clients with realistic advice as to their prospects of success or to moderate their unrealistic expectations, including advice that there was a good basis for the inclusion of serious allegations of fraud, dishonesty, corruption and intent to conceal evidence when no objective basis for such claims could be articulated, the potentially confusing nature of the advice given about the costs and risks they faced, and finally, the fact that he charged his clients $50,000 for services which provided them with little if any value.

...

Given the imbalance of the resources between his client and the ANZ, it was very important for Mr Beling to take the opportunity to resolve the matter at the early mediation...

72 The Tribunal found that 'the draft statement of claim did not adequately link the numerous serious allegations made against the ANZ with events which actually occurred, nor did it demonstrate causation or loss.'[44] It agreed with Mr Howell's opinion that the draft statement of claim prepared by Mr Beling, if filed, was 'liable to be struck out as not disclosing a cause of action, or being frivolous or vexatious.'[45]

73 The Tribunal found that the overall effect of Mr Beling's actions prior to the mediation was that the Hannas were not given the advice that they needed. While he may have believed that he was promoting the Hannas' interests, he did not attempt or try, especially at the vital stage prior to the mediation, to assist them to understand the issues of strategic significance to their case. The only written advice that he provided stated that they had strong prospects of success '(in the event the Financial Ombudsman Service (FOS') material was admitted into evidence)', without explaining the basis for that conclusion, by any other documentary or oral statements. Mr Beling arranged for them not to attend mediation and advised them not to settle. His actions in discouraging settlement, 'continuing to support unrealistic expectations and continuously asserting the strength of allegations which on an objective basis were highly questionable, worked to undermine the Hannas' understanding of their true case, rather than to enhance it.'[46]

74 The Tribunal found that 'the cumulative effect of the inadequacies of Mr Beling's handling of the matter was that the $50,000 charged was quite out of proportion to the value the clients received.'[47] A large proportion of the additional costs accumulated were wasted. The Tribunal reiterated these findings in its penalty decision, referring to the disproportionate expenditure of the Hannas' scarce financial resources.

75 The Tribunal found that the Hannas were challenging clients[48] and that Mrs Hanna strongly urged Mr Beling to pursue claims which objectively appeared to be unjustified.[49] The Tribunal based its conclusion that Mr Beling was 'out of his depth' on its findings that he had 'no experience with this type of claim' and with handling clients like the Hannas who were 'challenging clients to act for'.[50] The Tribunal found that they were immune to reason and therefore Mr Beling should have confirmed his advice in writing.[51]

76 The Tribunal found that Mr Mahoney, who had briefly acted for the Hannas in mid-2012, had acted in a different manner to Mr Beling, and had not alleged that the ANZ had engaged in fraud, dishonesty, corruption or had intended to conceal evidence. Mr Mahoney approached the Hannas' claims in a proportionate manner and had sought to resolve the matter with minimum expense.[52]

77 Proposed question of law 2 does not raise questions of law, rather it seeks to challenge the adequacy of the Tribunal's consideration of particular evidence. That was a matter for the Tribunal. The Tribunal's findings of fact were supported by evidence and were open to it to make. The Tribunal was entitled to make its own assessment of the draft statement of claim having considered Mr Howell's and Mr Hicks' evidence to the extent that it found it to be of assistance.

78 It was open to the Tribunal on the evidence to find that Mr Beling did not have a sufficient basis to include allegations of fraud, dishonesty, corruption and intent to conceal evidence in the statement of claim.[53] Supporting evidence for claims that a legal practitioner includes in a pleading should be obtained before those claims are made. That obligation applies to draft pleadings that are to be sent to an opposing party in pursuit of a client's claim. The mortgage and loan documents, which Mr Beling did not have, were in standard form and he did not explain how those documents might have supported the claims that he included in the draft statement of claim.

79 The fact that the Hannas did not provide Mr Beling with the funds required to brief a barrister to settle the draft statement of claim and produce a settled statement of claim did not justify him relying on the draft at the mediation.

80 On the evidence before it, the Tribunal was entitled to conclude that Mr Beling should have provided written advice to the Hannas. The Tribunal referred to Mr Hicks' evidence, called as part of Mr Beling's case, that the provision of proper written advice would have been prudent.[54]

81 The Tribunal did consider the instructions that the Hannas gave to Mr Beling about settlement offers and the Tribunal did refer to Mr Beling's fourth response to the Commissioner which included Plan A of $5 million as hush money to keep the scandal out of the courts and Plan B to pursue $750,000 through the court system.[55]

82 The Tribunal's findings of fact supported the findings that it made in respect of charges 1 and 3.

83 Question of law 2 and the attached grounds do not identify any arguable error by the Tribunal.

Proposed question of law 3 - The Tribunal's failure to consider evidence and submissions from pre-trial applications

Whether the Tribunal has erred because it failed to consider or sufficiently consider relevant evidence and submissions in the Tribunal's decision refusing the Applicant's pre-trial applications to exclude evidence, strike-out, permanent stay and injunction under sections 97 and 98 of the VCAT Act and the common law.

85 As a general rule, a Tribunal member need only consider the evidence and submissions presented at the final hearing and not those presented at directions hearings or interlocutory applications unless a party requests it to do so, with notice of the request being given to the other side. Even then, the Tribunal member may consider that evidence and submissions presented at preliminary hearings are not relevant. Mr Beling did not establish that the Tribunal made an arguable error in the terms alleged in question of law 3 by not considering evidence adduced and submissions made at preliminary hearings.

Mr Hanna's waiver of legal professional privilege

86 Mr Beling submitted that Mr Hanna had not waived his legal professional privilege in the client file held by Mr Beling although Mrs Hanna had. Mr Beling relied on this argument in a number of parts of his proposed appeal, including in grounds 3.1 and 3.3. Mr Beling argued that the Commissioner misled the Court by contending that both the Hannas had waived their privilege and had filed a false and misleading affidavit that the complaint came from both Mr and Mrs Hanna, whereas it was from Mrs Hanna alone. He argued that when legal professional privilege is held by multiple clients, all of them must waive their privilege before the privileged material could be used. The waiver could not occur retrospectively after the privileged material had been used. While there was no dispute that Mrs Hanna had waived her privilege, the Commissioner could not rely on Mr Hanna's evidence called at the hearing to establish that he waived his privilege. Mr Beling argued that Mr Hanna required the appointment of an administrator to advise him on whether he should waive his privilege, before deciding that he wished to do so.

87 Section 4.2.15 (1) of the LPA provides that if a client of a law practice or an Australian legal practitioner makes a complaint about the practice or practitioner, the complainant is taken to have waived legal professional privilege, or the benefit of any duty of confidentiality, to enable the practice or practitioner to disclose to the Commissioner any information necessary for dealing with or investigating the complaint. Sub-section (2) of that section provides that any information so disclosed may be used in or in connection with any procedures or proceedings relating to the complaint.

88 The Senior Member was satisfied that both the Hannas had waived their privilege and stated:[56]

On two occasions during the course of the hearing, Mr Beling pursued submissions to the effect that there was an obstacle to the use in the hearing of the documents over which Mr Hanna, in particular, had a claim of client legal privilege. I ruled that I was satisfied both Mr Hanna and Mrs Hanna had waived their privilege for the purposes of this disciplinary hearing. As noted, Mrs Hanna lodged a complaint with the VLSC on 21 February 2013. Applications by Mr Beling for injunctions, a strikeout or permanent stay, and the exclusion of evidence were also dealt with over the first two hearing days.

89 The Tribunal made significant findings that Mrs Hanna was the prime mover and decision-maker of the Hannas' financial affairs and gave instructions to Mr Hanna. Mr Hanna had given Mrs Hanna authority to communicate with the ANZ on his behalf.[57] The Senior Member stated:[58]

In terms of actual steps taken by Mr Beling in the course of the litigation, no distinction was made between the interests of Mr and Mrs Hanna respectively. It was apparent that in commencing the claim against the ANZ, and then in instructing Mr Beling, Mrs Hanna was acting on behalf of both herself and Mr Hanna.

90 The Tribunal was satisfied that both the Hannas had waived their privilege for the purposes of the disciplinary hearing before the Tribunal.[59] The Tribunal was entitled to conclude as a matter of fact that Mrs Hanna's actions were taken with Mr Hanna's permission or authority. The Court of Appeal referred to the Tribunal's finding that the Hannas had both waived their privilege in the client file without suggesting that it was in error.[60] Question of law 3 and the attached grounds do not identify any arguable error by the Tribunal.

Proposed question of law 5 - Mr Howell's expert report

Whether the Tribunal erred in failing to exclude the expert report of Mr Malcolm Howell pursuant to the Commissioner's obligations of full disclosure as required by Legal Services Commissioner v Kaine (Legal Practice) [2013] VCAT 1077, rule 83 of the Barrister's Rules, the rules of evidence laid down in Ridgeway v R [1995] 184 CLR 19, at 31, R v Ireland [1970] HCA 21; (1970) 126 CLR 321, at 335, and Bunning v Cross[1978] HCA 22; (1978) 141 CLR 54 at 74-7, and/or Mr Howell's lack of expertise in the subject matter of the dispute.

92 Mr Beling argued that the Tribunal erred by not excluding Mr Howell's expert report as evidence because, in forming his opinion, he was only in possession of part of Mr Beling's client file comprising selected material. He contended that Mr Howell's expert opinion would have changed if he was provided with evidence from other, more experienced legal practitioners to the effect that the Hannas' case had merit. His opinion would also have changed if he was provided with details of the oral advice Mr Beling gave to the Hannas, which was described in his responses to the Commissioner during the investigation. The Tribunal did not accept that submission.

93 Mr Beling also argued that Mr Howell was not an expert in the subject matter of the Hannas' claims as, when he had served as a VCAT member, he had not decided a case involving a claim under the National Credit Code and, when in private practice had never represented a client making such a claim.

94 The Tribunal did not accept Mr Beling's submission that Mr Howell's evidence was undermined by the exclusion of 130 pages of material from his file. It stated that Mr Howell had conducted a 'desktop' analysis of Mr Beling's file. The Tribunal concluded that it was not shown how the fact that Mr Howell was not provided with those documents affected his evidence in any significant way and, in any event, the Tribunal's decision was made independently of Mr Howell. The Tribunal decided that there was no evidence to support the serious allegation that the Commissioner deliberately manipulated Mr Beling's file to 'convey the appearance of disorganised and inadequate record-keeping'.[61]

95 The Tribunal considered the expert evidence. It was open to it to decide that the fact that Mr Howell was not given the complete file, or all correspondence between the Commissioner and Mr Beling, did not diminish the effect of his evidence. Similarly, the fact that he had not dealt with a claim under the National Credit Code did not prevent him from giving evidence about the professional obligations of lawyers in giving advice to, and making claims on behalf of, their clients. The Tribunal noted that:[62]

Mr Howell is well qualified, through his long career in the sphere of regulation of legal practitioners (including five years as a senior member of VCAT) to provide expert evidence analysing the acts and omissions of Mr Beling in acting for his clients.

96 Question of law 5 and the attached grounds do not identify any arguable error by the Tribunal.

Proposed question of law 6 - meaning and adequacy of disclosure agreements

Whether the Tribunal has erred in its interpretation of s. 3.4.16 of the Legal Profession Act 2004, clauses 1, 7 and 12 of the Disclosure Statement dated 29 August 2012 and Clauses 2, 3, 4, 5, 6, 7, and 8 of the Conditional Costs Agreement dated 29 August 2012.

98 Section 3.4.16 of the LPA imposes obligations on a law practice of ongoing costs disclosure by providing:

A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure under this Division as soon as practicable after the law practice becomes aware of that change.

99 Despite its terms, this proposed question of law requires examination of the Tribunal's approach to the Commissioner's allegations that Mr Beling's disclosure of his costs was inadequate.

100 Mr Beling challenged the Tribunal's interpretation of his costs agreement with the Hannas and his disclosure statement to them. He argued that the Tribunal wrongly distinguished between his initial costs disclosure and that at the time of the mediation, as they had not substantially changed. He contended that the Hannas were aware of the uplift fee and the possibility of them incurring an adverse costs order and their obligations to pay disbursements. The Tribunal erred by failing to sufficiently consider his advice to the Hannas about obtaining independent legal advice, his costs estimates and the range of possible awards or settlements that he provided to them. The Tribunal noted that the Commissioner accepted that the allegations against Mr Beling did not include that his initial costs disclosure was inadequate.[63]

101 The Tribunal discussed Mr Beling's composite disclosure statement. It concluded that neither the initial costs disclosure nor the update contained an estimate of the amount of disbursements the Hannas would be likely to incur, in particular for barristers' fees and medical reports. Despite reference to disbursements in the standard clauses of the disclosure statement, Mr Hanna had not disclosed their possible amount. A statement containing the details 'Barrister $400-$7000 per day, your choice' was insufficient and the Hannas were not given sufficient information to enable them to make strategic judgements about the conduct of their case.[64]

102 The Tribunal concluded that Mr Beling did not sufficiently disclose the risk of the Hannas having to pay the ANZ's costs, or of the amount of their out-of-pocket costs, even if they were successful. The Tribunal found:[65]

...the position is that Mr Beling did include in his initial costs disclosure to the Hannas, a statement that the possible range of costs judgements against them was $0 - $100,000. Two months later, his written statement to his clients as to their potential costs liability was confusing, and potentially misleading. This is not in accordance with his ongoing obligation to give written costs disclosure, under s 3.4.16 of the Act.

This allegation is proved, although the impact in practice of Mr Beling's failure to clarify the position as far as potential costs liability to the ANZ was concerned, was in practice somewhat ameliorated by his oral warnings to the Hannas.

In summary, the three most important obligations Mr Beling had in terms of costs disclosure were providing an estimate of disbursements to be incurred, advising as to the risks of having to pay the ANZ's costs and providing information about the amount of his costs his clients would have to pay for his services. Mr Beling provided little information in relation to the first. In relation to the second and third, the information provided was apt to confuse.

...

Mr Beling's costs disclosure advice to his clients of 3 November 2012 was ambiguous and on its face had the potential to convey the impression that their exposure to costs liability (both to him, and to the ANZ) was much lower than it actually would have been.

104 The Tribunal found that the allegation that Mr Beling had not provided sufficient information about costs already incurred had been proved, but was 'of little significance compared to the other matters concerning costs disclosure'.[67]

105 The Tribunal noted Mr Beling's submission that the standard clauses in the composite disclosure statement indicated that the Hannas would be required to pay disbursements, including filing fees and barristers' and experts' fees. In addition, cl 4 of the conditional costs agreement provided that those disbursements were to be paid by the Hannas irrespective of the proceeding's outcome. However, the Tribunal considered that Mr Beling's disclosures were inadequate because they did not provide an estimate of the total amount, or range of amounts, of major disbursements that would be incurred.[68]

106 The Tribunal did not err in its interpretation of the composite disclosure statement or the conditional costs agreement. It was open to it to find that Mr Beling had not made adequate ongoing disclosure of possible disbursements as required by s 3.4.16 of the LPA. Its findings in that respect were correct based on the lack of detail that Mr Beling provided to the Hannas.

107 Question of law 6 and the attached grounds do not identify any arguable error by the Tribunal.

Proposed questions of law 7 and 9 - proof of authentication of file

108 Mr Beling's seventh and ninth questions of law were:

Whether the Tribunal has erred because the Tribunal has failed to consider or sufficiently consider the relevant evidence, namely that neither the Commissioner nor the Tribunal can authenticate the Applicant's solicitor file tendered by the Commissioner as exhibit AF-7 to Alexandra Freeman's witness statement, which should have been excluded under the rules of evidence laid down in Ridgeway v R (1995) 184 CLR 19, at 31, R v Ireland [1970] HCA 21; (1970) 126 CLR 321, AT 335, and Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 74-5, in the exercise of discretion to protect the public interest and to preserve public confidence in the administration of justice and on the basis of prejudice to the Applicant.

...

Whether the Tribunal has erred with respect to its failure to draw inferences adverse to the Commissioner pursuant to the rule in Jones v Dunkel, with respect to the following witnesses: Tracie Hanna; Gary Stockton, psychologist; Joshua Kohn of Counsel; and Russel Daily, Maria Smith, Andrea Woolhouse, Cara O'Shannassy and Tina Stagliano of the Commissioner's office, all of whom had personal knowledge of the chain of custody and care and conduct of the Applicant's client filed tendered as exhibit AF-7 to the witness statement of Alexandra Freeman.

109 Mr Beling argued that the Tribunal did not sufficiently consider the Commissioner's failure to establish the authenticity of the copy of the client file tendered in evidence. At least 20 key documents were missing from it, including psychological reports, bushfire funding documents and Centrelink reports. He argued that the public interest required that the Commissioner's documents be accurate and complete. The Tribunal erred in not drawing a Jones v Dunkel inference against the Commissioner for her failure to call evidence to authenticate the client file.

110 The Commissioner submitted that after detailed consideration of the evidence the Senior Member rejected Mr Beling's submissions as to the authenticity of the file.[69] Mr Beling did not cross-examine Ms A Freeman, whose affidavit exhibited the file, about its authenticity.[70]

111 The Commissioner relied on the following findings of the Senior Member:[71]

Finally, I confirm I find nothing raised by Mr Beling in this submission gives rise to any doubts about the integrity of the VLSC's conduct in this matter. Nor do I accept the other allegations or insinuations made by Mr Beling against the VLSC or its counsel in the conduct of this matter.

112 The Tribunal concluded that there was no evidence that the Commissioner fabricated or forged documents that were provided to the Tribunal.[72] It also found no evidence to support the serious allegation that the Commissioner deliberately manipulated Mr Beling's file to 'convey the appearance of a disorganised and inadequate record-keeping'.

In the absence of compelling evidence to the contrary, I assume that things are as they appear. There is no evidence that the VLSC fabricated documents, or forged Mr Beling's handwritten page numbering on documents provided to the Tribunal - as he suggested towards the end of his lengthy footnote No 91 on page 23 of his Closing Submissions.

...

...There is no evidence to support the serious allegation that the VLSC deliberately manipulated Mr Beling's file to 'convey the appearance of disorganised and inadequate record-keeping'.

114 Mr Beling provided no reason why any of the witness he nominated ought to have been called to prove the authenticity of the client file that the Commissioner tendered. Ms Freeman, the Commissioner's investigating officer, as the Tribunal noted, was not cross-examined by Mr Beling about the file's authenticity.[74] In those circumstances the Commissioner had no reason to call witnesses to prove the file's authenticity.

115 The Court of Appeal, in deciding Mr Beling's appeal from County Court orders and judgments, rejected this allegation stating:[75]

There is no evidence at all to substantiate the grave allegation that the Commissioner in some way conspired and colluded with VCAT to forge and falsify Beling's client files in the disciplinary hearing. In any event that alleged conduct predated the entry of the parties into the settlement deed by almost two years.

116 In dismissing Mr Beling's application for leave to appeal my judgment, the Court of Appeal stated:[76]

As part of its investigation and in the proceeding in VCAT, the Commissioner relied on the file kept by the applicant and which was obtained by the Commissioner. The applicant says that the Commissioner and her staff doctored the file by removing some 20 documents that he said related to his acting for the couple and were relevant to the allegations. He says that he became aware in January 2017 that the file had been doctored and he made allegations against the Commissioner and her staff. Those allegations were considered, and rejected by VCAT.

The applicant also says that VCAT was complicit in the removal of the documents. He later said that he did not raise this allegation in VCAT because it would not suit him forensically to do so. Subsequently, he has alleged serious impropriety on the part of the Associate Justice related to the proceeding and the file.

Two points must be made clearly. First, at no stage has the applicant supported his grave allegations of fraud, misconduct, collusion, and impropriety by evidence or cogent material. The allegations have never risen higher than assertion. Second, the applicant has repeatedly said that the respondent has admitted the wrongdoing. Such admissions were said to arise from the failure of the respondent to deny the allegations on oath and because the respondent consented to the applicant filing an amended notice of appeal from the Associate Justice and from VCAT. Although we deal with this more fully when we turn to proposed grounds 5 and 6, it can be stated at once that the failure to deny the allegations on oath does not constitute an admission. Further, consent to a party filing an amended pleading does not in any way amount to an admission as to the truth of the allegations contained in the pleading.

It follows that the applicant's grave allegations of wrongdoing remain entirely unsupported. They should not have been made.

117 Questions of law 7 and 9 and the attached grounds do not identify any arguable error by the Tribunal.

Proposed question of law 8 - amendment of charge

118 Mr Beling's eighth proposed question of law was:

Whether the Tribunal's decision to allow the VLSC to amend charge 1 from alleging "unsatisfactory professional conduct" in s 4.4.3(1)(a) of the Legal Professional Act 2004 to alleging professional misconduct during oral submissions in the absence of the Applicant and after the hearing of all the evidence and following receipt of written submissions erred in denying the Applicant procedural fairness and natural justice at common law and/or contravened sections 97 and 98 of the Victorian Civil and Administrative Tribunal Act 1998.

119 Mr Beling argued that the Tribunal wrongly allowed the Commissioner, in her final submissions, to amend charge 1 from an allegation of 'unsatisfactory professional conduct' to the more serious charge of 'professional misconduct'. This, he argued, denied him procedural fairness as the case against him on the first charge alleged that he had engaged in 'unsatisfactory professional conduct'. The amendment occurred on the final hearing day, and in his absence. The Tribunal should have first adjourned the hearing, so that the Commissioner, as a model litigant, could have notified him of the proposed amendment. Mr Beling said that he had deliberately not attended the last day of hearing in case any amendment application was made.

120 Although Mr Beling did not attend the final hearing day, he did not seek an adjournment, but had provided his final 'Oral Submissions', 'which he said he would simply have read out verbatim, had he attended'.[77] The Tribunal noted one such submission:[78]

Mr Beling submitted in his final 'Oral Submissions' that charge 1 should be interpreted as pertaining to unsatisfactory professional conduct, as that is what s 4.4.3(1)(a) refers to (where a substantial or consistent failure to maintain a reasonable standard of competence and diligence is involved). However, it is clear from wording of charge 1, and this was confirmed by discussions during the course of the hearing, that the VLSC alleges misconduct at common law.

121 I am not satisfied that charge 1 was amended. In his reasons, the Senior Member set out the terms of that charge:[79]

Professional misconduct at common law within the meaning of s 4.4.3(1)(a) of the Act for failing to exercise due care and competence in the course of engaging in legal practice, for failing to fulfil his duties to his clients Peter and Tracie Hanna (the Hannas) during the period 24 August 2012 to 30 January 2013 to exercise proper care and conduct of the proceedings before the Court in which his clients were the applicants and for which work he charged a fee for his legal services in excess of $50,000.

122 No amendment of charge 1 occurred at the penalty hearing. The allegation of common law misconduct contained in charge 1 remained. The Tribunal found this charge proved and imposed a penalty in respect of it.[80] Charge 1 invoked s 4.4.3.(1)(a) of the LPA. Common law misconduct includes conduct that would be reasonably regarded as disgraceful or dishonourable by legal practitioners of good repute and competency.[81] The Senior Member concluded that:[82]

I find that Mr Beling's conduct the subject of charge 1, considered as a whole, as well as displaying gross negligence, does contain a component of moral obliquity. It is conduct which is serious, and indeed shocking, which colleagues of good repute would regard as disgraceful and dishonourable.

...

I find that colleagues of good repute and competency would regard his conduct the subject of allegations 1-9 as disgraceful and dishonourable. Accordingly charge 1 is proved.

123 The Senior Member stated that he found Mr Beling guilty of one charge of professional misconduct at common law:[83]

Ultimately in relation to charge 1, I have found that Mr Beling's propounding of such speculative claims, and his lack of competence in carrying out his retainer is so serious that it constitutes conduct which colleagues of good repute and competency would regard as disgraceful and dishonourable.

Charge 2 is a subset of charge 1. Accordingly, I regard charge 2 as, in effect, an alternative to charge 1. Given I have found charge 1 proved, charge 2 is dismissed. The same applies to charge 4 relative to charge 3.

In relation to charge 3, although the proved conduct the subject of that charge is very serious, I have found the element of consistent failure to reach or maintain a reasonable standard of competence and diligence alleged by the VLSC has not been satisfied. (There was no allegation of a substantial failure). So Mr Beling is found not guilty of professional misconduct, but guilty of unsatisfactory professional conduct under s 4.4.20 of the Act.[84]

124 The Senior Member's decision on this issue was correct as charge 1 alleged misconduct at common law. No amendment of that charge occurred.

125 Question of law 8 and the attached grounds do not identify any error by the Tribunal.

126 Mr Beling's proposed tenth question of law was:

Whether the Tribunal acted in excess of or without jurisdiction in finding that the Applicant was guilty of Charge 1, which discloses no offence capable of sustaining a disciplinary charge and was put by the VLSC on the basis of disproportionate costs and lack of value for money, which is the proper subject matter for the Costs Court.

127 Mr Beling contended that the Tribunal erred by taking into account the amount that he charged the Hannas when the Commissioner did not allege overcharging, overservicing or billing for uncompleted work. The Tribunal exceeded its jurisdiction by assessing his costs as that was a matter for the Costs Court. That was the course followed by a differently constituted Tribunal in his fee dispute with the Hannas which referred his costs claim to the Costs Court to determine which of the costs that he claimed were reasonable, fair and proportionate. While the Tribunal stated that it 'was not engaged in a costing exercise',[85] Mr Beling contended that the Tribunal did carry out such an exercise.

128 In my opinion, the Tribunal correctly identified the issue for its decision in the following passage: [86]

...It is not concerned to examine individual items charged, so as to determine whether they should be allowed or not. Rather, it is to consider in a more holistic way, whether what Mr Beling charged was so disproportionate in terms of the value received by his clients for the work he actually did, as to be a matter of concern from a disciplinary perspective.

129 The Commissioner argued that the likely result to the Hannas from the litigation was out of proportion to the time that Mr Beling spent on legal research and drafting the statement of claim. He had an unrealistic conception of their claims. The Tribunal found that Mr Beling charged the Hannas $50,000 for services 'which provided them with little if any value'.[87]

130 The Tribunal thereby made clear that its focus was on the costs charged for the litigation and the important consideration of their proportionality. It did not conduct an item-by-item costing exercise and never found that the costs that Mr Beling charged for work done on the draft statement of claim and for legal research were excessive, unreasonable, or improper.

131 Question of law 10 and the attached grounds did not identify any arguable error by the Tribunal.

Proposed question of law 11 - errors about what was alleged in the draft statement of claim

132 Mr Beling's proposed eleventh question of law was:

Whether the Tribunal has erred because it failed to consider or sufficiently consider, as grounds for a finding of professional misconduct against the Commissioner under section 4.4.3(1) of the Legal Profession Act 2004 or the vitiation of the findings of guilt and penalties against the Applicant, the misconceived allegations of possible professional misconduct the Commissioner made against the Applicant in her letter dated 3 June 2014 concerning replicated contents of Mrs Hanna's emails in October and November 2012 contrary to rule 13.1 of the Professional Conduct and Practice Rules, when there is no such content in the Applicant's draft Further Amended Statement of Claim; the Commissioner's incomplete Notice of Decision dated 23 December 2014; the Commissioner's failure to obtain Mr Peter Hanna's waiver of legal professional privilege prior to commencing the disciplinary investigation in March 2013; and the Commissioner's failure to adequately deal with the Applicant's complaints dated 14 November 2014 and 5 May 2016.

Mr Beling argued that the Tribunal erred by failing to consider or sufficiently consider a range of matters 'for a finding of professional misconduct against the Commissioner' or for the purpose of 'the vitiation of the findings of guilt and penalties against [him]'. These matters included the misconceived allegations of possible misconduct the Commissioner made against him in the letter dated 3 June 2014, the Commissioner's incomplete Notice of Decision dated 23 December 2014. The grounds upon which the Commissioner relied to support the allegations of possible professional misconduct against him were false and incorrect. For example, Mr Beling referred to the Commissioner's letter of 3 June 2014 where the Commissioner stated that he had replicated the contents of Mrs Hanna's emails to him in the draft statement of claim. Mr Beling contended that this allegation was incorrect as there was no such replication of the contents of those emails.

133 This proposed ground is misconceived. The Tribunal's jurisdiction was to hear and determine the disciplinary charges against Mr Beling. It exercised that jurisdiction. Mr Beling's suggested that it should have made findings of professional misconduct against the Commissioner's staff. But, even if contrary to the Tribunal's and Court of Appeal's conclusions, any evidence for such findings existed, that task was not within the Tribunal's jurisdiction.

134 Question of law 11 and the attached grounds do not identify any arguable error by the Tribunal.

Proposed question of law 12 - did Mr Beling achieve a successful outcome for the Hannas?

Whether the Tribunal has erred in finding the Applicant guilty of charges 1 and 3 when he was instrumental in achieving a "successful outcome" for the clients under Clause 2 of the Conditional Costs Agreement dated 29 August 2012, a finding so unreasonable that no reasonable person could have made it.

136 The conditional costs agreement defined a 'successful outcome' as: [88]

any judgement, financial settlement or award in the Hannas' favour greater than fifty thousand dollars (>$50,000).

137 Mr Beling submitted that the Tribunal by finding him guilty of charges 1 and 3 misinterpreted his Conditional Costs Agreement with the Hannas. He said that he obtained a 'successful outcome' for them by obtaining a settlement offer from ANZ of $52,717 that was above the $50,000 referred to in the Conditional Costs Agreement.

138 The Tribunal did not accept that Mr Beling had achieved a successful outcome for a number of reasons, including that he had ceased to act for the Hannas at the time the settlement was achieved, and that the settlement subsequently fell through.[89] These were findings open to the Tribunal to make.

139 Question of law 13 and the attached grounds do not identify any arguable error by the Tribunal.

Proposed question of law 14 - Mr Beling's partial success

140 Mr Beling's proposed fourteenth question of law was:

Whether the Tribunal has erred in basing its decision on penalty for charges 1 and 3 on its findings of fact concerning Key Allegations 3 (e.g., at [11] and [48]), when the tribunal found the Applicant partially successful on this ground insofar as Mrs Hanna was found to be aware of the $100,000 potential liability to ANZ Bank by virtue of the Applicant's oral legal advice and aware of the uplift fee via her email to the Applicant about this fee in January 2013.

141 Mr Beling contended that the Tribunal erred by finding that his estimates of the costs that the Hannas might be liable to pay were 'ambiguous' and this finding formed an insufficient basis for the penalties it imposed on him. He submitted that Mrs Hanna was made aware that she and Mr Hanna might be required to pay $100,000 of ANZ's legal fees if unsuccessful with their claim.

142 The Tribunal found on the evidence that charges 1 and 3 were proved. Those findings were open on the evidence.

143 The Tribunal noted that Mr Beling had informed the Hannas that 'the range of possible costs judgments against you range from $0-$100,000 (this is money you may have to pay)'.[90] But it also noted that the range was not referred to in a later costs evaluation which said:[91]

...Therefore, if you lose the case, the estimated amount you are likely to be out of pocket is approximately $26,315.

144 The Tribunal accepted Mr Beling's evidence that he advised the Hannas orally that if they lost they would be liable for the ANZ's costs of $100,000. The Tribunal found that the allegation about the inadequacy of the costs disclosure agreement was proved but 'was in practice somewhat ameliorated by his oral warnings to the Hannas'.[92]

145 Question of law 14 and the attached grounds do not identify any arguable error by the Tribunal.

Proposed question of law 15 - requirement for supervised legal practice

146 Mr Beling's fifteenth proposed question of law was:

Whether the Tribunal erred in its decision to Order the Applicant's practising certificate be restricted to only supervised legal practise as an employee for three years full-time or at all.

147 In the grounds attached to question of law 15, Mr Beling challenged the Tribunal's decision on the penalties to be imposed arguing that it did not consider various matters of fact. Mr Beling challenged the Tribunal's lack of consideration of his 'unblemished character', that he had not been subject to 'prior ... disciplinary history or regulatory action' and his remorse towards the Hannas. He argued that the supervisory period of three years was inconsistent with penalties imposed in similar cases. Those cases would have made appropriate a period of 0-1 year's supervision for failure to competently advise a client, with no supervision period for isolated acts of lack of competence.

148 The Tribunal did consider the matters that Mr Beling raised about penalty. For instance, the Tribunal considered his character and his lack of a disciplinary history. But the Tribunal considered the case to be unusual and explained the reasons for its penalties as follows:[93]

Mr Beling has shown a stark lack of insight, such that I have concluded the protection of the public requires he should only practise under the supervision of an employer for a significant period.

149 The Tribunal reached its decision on the appropriate penalties after taking into account relevant considerations. It considered that a period of supervised legal practice was required. The Tribunal was entitled to find that potential clients of Mr Beling's faced a significant risk that their interests would not be protected if he acted for them.

150 Question of law 15 and the attached grounds do not identify any arguable error by the Tribunal.

Proposed question of law 16 and 18 - the Tribunal's costs orders

151 Mr Beling's proposed sixteenth and eighteenth questions of law were:

Whether in making the conclusions of law that no "exceptional circumstances" or "special circumstances" exist under Clauses 46D(2) and 46D(3) of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal has erred in failing to consider or sufficiently consider relevant factors.

Whether the Orders as to costs and penalty were invalid because s. 117 of the VCAT Act required the Tribunal to give Reasons but the Reasons as to costs and penalty do not disclose an intelligible path of reasoning in making the Orders.

152 Mr Beling challenged the Tribunal's order that he pay the Commissioner's costs. He argued that the Tribunal did not adequately consider the Commissioner's refusal to negotiate, amend or withdraw any of the charges, that he obtained a 'successful outcome' for the Hannas, that the Commissioner's costs were disproportionate and excessive and his personal circumstances, which included financial hardship and a risk of homelessness. The Tribunal erred by failing to sufficiently consider the compliments the Hannas gave him regarding his professional services and that they attempted to renegotiate his retainer so that he could continue to act for them.

153 The Tribunal took into account Mr Beling's submissions about 'exceptional circumstances', but considered that none justified a departure from the general position that a practitioner found guilty of professional misconduct or unsatisfactory professional conduct must pay the Commissioner's costs.[94] It did not accept that Mr Beling's financial position comprised 'exceptional circumstances'. So far as the amount of the Commissioner's costs was concerned, the Tribunal stated: [95]

The extent of the costs incurred by the VLSC in this case is very largely due to the manner in which Mr Beling's conduct of his own defence, pursuing misguided legal and evidentiary challenges, drawn out cross-examination of Mr Howell, to little effect, and highly convoluted written and oral evidence and submissions. These have caused the hearing to run for many more days than it needed to.

It seems clear that a key purpose behind clause 46D is to require a practitioner to bear the costs caused by their deficient conduct, rather than the VLSC (and therefore, ultimately the profession and the public).

Analysis of proposed questions of law 16 and 18

154 It was open on the evidence for the Tribunal to make those findings and reach those conclusions. The Tribunal's order as to costs was made in the exercise of its discretion. Mr Beling has not established any error in that exercise.

155 Question of law 18 contended that the Tribunal's decision was invalid because it did not give adequate reasons. But, the Tribunal did set out its reasoning for the penalties that it imposed, and that reasoning provided an adequate path of reasoning. The Tribunal was entitled to give reasons by discussing the principal matters raised by Mr Beling which it considered significant.

156 The Commissioner pointed to the following parts of the Senior Member's reasons as explaining his path of reasoning:

[Mr and Ms Hanna] sought $5 million, or alternatively $750,00, (the jurisdictional limit in the [Federal Magistrates' Court) from their action against the ANZ.[96]

...

The charges of professional misconduct relate to Mr Beling's competence. The VLSC does not allege a lack of diligence. Nor does it allege dishonesty by Mr Beling, although it does allege his lack of competence amounted to conduct which colleagues of good repute and competency would regard as disgraceful or dishonourable conduct.[97]

...

In summary, Mr Beling, a sole practitioner without experience in the relevant area, agreed to act for difficult but vulnerable clients who had had several lawyers previously, and who had unrealistic expectations as to the claims which they could bring against the ANZ. They also sought to conduct a high-profile campaign against the bank.

Mr Beling continued to conduct the matter in a manner similar to the way that it has been conducted by the Hannas when they were representing themselves. That is, on the basis of serious allegations against the ANZ which were not coherently conceived, and for which no objective basis was able to be articulated, even at this hearing.[98]

...

[The Statement of Claim] contained numerous allegations of fraud, falsification of documents, dishonesty, corruption and destruction of evidence. The basis for these serious allegations was not made clear in the document. Nor was Mr Beling able to say what this was when giving his evidence to the Tribunal, although he continued to defend the document throughout the hearing...[99]

...

Accordingly, allegation 3, and that part of allegation 8 which relates to costs, is also proved. As described however, on the evidence of Mr Beling, I accept Mrs Hanna was reminded orally of the danger of having to pay 'the ANZ's costs of $100,000'. It is also apparent she was aware of the 25% uplift.[100]

157 The Commissioner relied on the Senior Member reference to, and reliance on, expert evidence presented by both parties as demonstrating that that the Tribunal adopted a balanced approach to the evidence.[101]

158 The Commissioner submitted that Mr Beling's reliance on the fact that the draft Statement of Claim was not filed and served, and had been prepared for mediation purposes only overlooked that it was still subject to obligations, such as not alleging fraud without a proper basis.[102]

159 Questions of law 16 and 18 and the attached grounds do not establish any arguable error by the Tribunal.

Proposed question of law 17 - appropriate order as to costs

Whether the Tribunal has erred because it failed to consider or sufficiently consider the Applicant's submissions on a 50/50 costs split, that each party bear its own costs, or that an Appeals Costs Fund Certificate be granted in its decision on costs.

161 Mr Beling argued that the Tribunal erred in not adequately considering his success on two charges, and two and a half of the key issues, raised by the Commissioner, which he said warranted a discount in the costs that he would otherwise be ordered to pay. He argued that the Tribunal did not consider the option of a 50/50 cost split or that each party bear its own costs or that he be granted an appeals costs fund certificate.

162 The Tribunal did consider the option of a 50/50 costs split,[103] and, in any event, was not obliged to refer to various cost orders that Mr Beling proposed. The Tribunal was required to exercise its discretion as to costs. Mr Beling has not established any error invalidating its exercise of discretion. It was entitled to conclude that Mr Beling did not succeed on two charges as they were alternatives to the charges that were proved. As the Senior Member said:

Accordingly, I regard charge 2, as in effect an alternative to charge 1. Given I have found charge 1 proved, charge 2 is dismissed.[104]

...

Accordingly, I regard charge 4 as, in effect, an alternative to charge 3. Given I have found charge 3 proved ( to the extent that Mr Beling's conduct the subject of charge 3 constituted unsatisfactory professional conduct) charge 4 is dismissed.[105]

163 Question of law 17 and the attached grounds do not identify any arguable error by the Tribunal.

164 Mr Beling has not established that he should be granted an extension of time in which to commence this proceeding seeking leave to appeal the Tribunal's orders. Mr Beling's appeals against the Judicial Registrar's orders are dismissed.

[1] Order of Judicial Registrar Clayton dated 27 November 2019, Other Matters para I.

[2] Beling v Victorian Legal Services Commissioner [2020] VSC 200, [88].

[3] Beling v Victorian Legal Services Commissioner [2017] VCAT 1022, [164]-[165] ('First Tribunal Decision').

[6] Beling v Victoria Legal Services Commissioner [2021] VSC 390, [21]-[24].

[7] Beling v Victorian Legal Services Commissioner [2021] VSCA 257.

[8] Plaintiff's summons filed 20 May 2022, [3].

[9] Beling v Legal Services Commissioner (No 2) [2023] VSC 212 [17]-[25].

[10] This summary is taken from the First Tribunal Decision [14].

[11] Jackamarra v Krakouer (1998) 195 CLR 516 and Trkulja v Dobrijevic [2015] VSCA 281, [27].

1. [12] Affidavit of Mr Beling 3 October 2020, [14]; CB 4153.

[13] Beling v Legal Services Commissioner [2021] VSCA 257.

[14] Beling v Legal Services Commissioner [2021] VSC 390.

[15] Beling v Legal Services Commissioner [2021] VSCA 257[18].

[18] Beling v Victorian Legal Services Commissioner [2021] VSCA 256, [49] ('McLeay').

[23] Beling v Victorian Legal Services Commissioner [2021] VSCA 257, [20].

1. [28] Joel Beling, 'Applicant's Outline of Submissions for the Application to Adduce Fresh Evidence and Extensions of Time', Submission in Beling v Victorian Legal Services Commissioner (No 2) S ECI 2019 04627, 12 October 2020, [1].
2. [29] Victorian Legal Services Commissioner, 'Respondent's Outline of Submission', Submission in Beling v Victorian Legal Services Commissioner (No 2) S ECI 2019 04627, October 2020 [33] ('Commissioner's Outline of Submissions').
3. [30] VCAT proceedings J82/2013 and J130/2013 and County Court proceeding CI-19-03745.

[31] Oswal v Carson [2013] VSC 355, [11].

[32] Victorian Civil and Administrative Tribunal Act 1998, ss 148(2)(a) and 148(5) ('VCAT Act').

[33] [2007] VSCA 163; (2007) 18 VR 48, 57 [35] (Chernov JA and Bell AJA agreeing).

[34] State of Victoria v Bacon [1998] 4 VR 269, 277 (Winneke P) and 285 (Phillips JA).

[76] Beling v Legal Services Commissioner [2021] VSCA 257, [18]-[21].

[77] First Tribunal decision [371] see footnote [96].

[84] Section 4.4.20 allows a substituted finding of unsatisfactory professional conduct.

1. [93] Beling v Victorian Legal Services Commissioner [2017] VCAT 1576 ('Penalty Decision'), [45].

[104] First Tribunal Decision, [403].

[105] First Tribunal Decision, [443].