Court of Appeal (Vic)|2013-06-14|Before: Proceedings J, Nettle JA, Neave JA

Burgess v McGarvie [2013] VSCA 142 (14 June 2013)

VCAT Proceedings J 1217 of 2012, J 1818 of 2012 and J 24 of 2013, 28 March 2013 (Vice President Judge Jenkins)

ADMINISTRATIVE LAW - Victorian Civil and Administrative Appeal (VCAT) - Failure to take relevant considerations into account - Whether VCAT erred in failing to take mitigating circumstances into account - Reasons - Whether VCAT reasons inadequate as failing to disclose path of reasoning - Quinn v Law Institute of Victoria (2007) 27 VAR 18, applied - Victorian Civil and Administrative Tribunal Act 1998, s 117.

1 This is an application for leave to appeal from orders of the Victorian Civil and Administrative Tribunal ('VCAT') under the Legal Profession Act 2004 ('LPA'). There is also an application for stay pending appeal.

2 The applicant was born on 4 December 1962. On 3 April 1986, he was admitted to practise as a barrister and solicitor. From 3 April 1986 until 30 June 1988, he served as an employee solicitor with the firm of Henderson and Ball and, since 1 July 1988, he has carried on practice as a principal of the firm with a full practising certificate.

3 By Application for Order dated 15 February 2013, the respondent Commissioner charged the applicant with four charges of professional misconduct within the meaning of s 4.4.4(a) of the LPA and one charge of professional misconduct within the meaning of s 4.4.3(1) of the LPA.

4 Charge 1 alleged professional misconduct comprised of failing to use best endeavours to complete work as soon as reasonably possible and Charge 2 alleged professional misconduct comprised of failing to communicate effectively and promptly with clients. The charges arose out of a complaint by one Janet Hanslow of delay and poor quality work by the applicant in relation to alleged thefts from Ms Hanslow's cousin, Ms Virtue, and delay on the part of the applicant in relation to the administration of the estate of Ms Virtue. The facts of the charges, which were admitted, were as follows.

5 On 29 April 2004, Ms Hanslow first consulted the applicant as to items which she alleged had been stolen from Ms Virtue. The applicant advised her to make a complaint to the police.

6 On or about 7 February 2005, Ms Hanslow contacted the applicant and instructed him to ascertain whether the police had made any progress in investigating her complaint. Thereafter, Ms Hanslow attempted to contact the applicant: by letter on 24 February 2005, by telephone on 7 March 2005 and by telephone and email on 18 March 2005, but on each occasion without response. The applicant did not write to the police until 15 April 2005.

7 On 19 May 2005, the applicant advised Ms Hanslow that, because the police were taking as long as they were to investigate her complaint, counsel should be briefed to advise. On the same day, Ms Hanslow instructed the applicant to brief counsel to advise. Thereafter, Ms Hanslow attempted to contact the respondent three times by email on 15 August 2005 and once by telephone, but again on each occasion without response. The applicant failed to brief counsel.

8 On or about 27 August 2005, Ms Hanslow sent a letter of complaint to the senior partner of Henderson and Ball, to which she did not receive a reply. At a meeting held on or about 29 September 2005, the applicant told Ms Hanslow that he had not briefed counsel. Ms Hanslow thereupon instructed the applicant to send a letter to the police outlining the matters which she wished to be investigated and instructed him once again to brief counsel. He said that he would but in fact he did not write to the police or brief counsel.

9 On or about 30 November 2005, the applicant informed Ms Hanslow that the police would not lay charges in relation to the alleged theft - it does not appear what basis there was for that advice - and recommended that counsel be briefed to draw proceedings immediately. Ms Hanslow gave instructions to the applicant to brief counsel to draw proceedings immediately. Thereafter, Ms Hanslow endeavoured to contact the applicant about the matter on three separate occasions, by telephone and email, but on each occasion without response. The applicant did not brief counsel until 16 March 2006.

10 On 11 April 2006, Ms Hanslow set a letter of complaint to the applicant as to the unsatisfactory manner in which he had been conducting her matter and, on 21 April 2006, the applicant replied, as follows:

Your reference to the poor service you have received is warranted, and we offer our genuine and sincere apologies. We will ensure that you do not suffer such service in the future and undertake to respond to all telephone messages and emails within 24 hours ...

...counsel had been asked to provide written advice within seven days.

11 On 2 May 2006, the applicant provided Ms Hanslow with advice from counsel recommending that further records be obtained, including Ms Virtue's medical records. Ms Hanslow instructed the applicant to obtain the records but it was not until August 2006 that the applicant obtained them.

12 On 16 March 2007, Ms Hanslow contacted the respondent to ascertain what progress was being made. The applicant told her there had been delays on the part of the police and that he would contact counsel again. In fact, he did not contact counsel again.

13 On 26 June 2007, Ms Hanslow contacted the applicant again to ascertain what progress was being made and the applicant told her once more that he would contact counsel.

14 On or about 19 July 2007, the applicant caused the contemplated proceedings to be instituted in the Trial Division of the Supreme Court of Victoria ('the proceedings'). In mid-August 2008, the defendants delivered interrogatories for the examination of the plaintiff. At a directions hearing held on or about 16 September 2008, the judge ordered that answers to the interrogatories be provided by 14 October 2008 (which was subsequently extended to 2 December 2008). At a meeting held on or about 16 October 2008, the applicant told Ms Hanslow that she would hear from him in relation to the interrogatories at the end of the following week. In fact, the applicant did not contact Ms Hanslow again until 9 February 2009 and he did not arrange at all for preparation of the answers to interrogatories. On or about 3 January 2009, Ms Virtue died.

15 During January and early February 2009, Ms Hanslow attempted to contact the applicant four times by telephone but none of her calls was returned. On 9 February 2009, the applicant told Ms Hanslow that counsel had not yet completed settling the answers to interrogatories.

16 On 24 March 2009, the applicant wrote to Ms Hanslow that there was to be a hearing on 25 March 2009 at which it would be necessary to explain the delay in providing answers to interrogatories, and the court would determine whether the applicant or Ms Virtue's estate should bear the costs occasioned by the delay. The letter invited Ms Hanslow to appear or be separately represented if she were of the view that the applicant, rather than Ms Virtue's estate, should pay the costs. Due to the fact that the letter was sent only one day before the hearing, Ms Hanslow did not receive the letter until after the hearing and, therefore, was unable to appear or arrange to be separately represented. Early in April 2009, she telephoned the applicant and he told her that the defendants in the proceeding had been awarded an amount of costs out of Ms Virtue's estate by reason of the delay in providing the answers to interrogatories.

17 On 22 May 2009, the proceedings were settled at mediation on terms inter alia of a payment of $50,000 by the defendants by 13 August 2009 and a release from costs orders in the proceeding. The defendants, however, paid only $45,371.90 of the settlement sum. In or about September 2009, Ms Hanslow attempted to contact the applicant on three occasions to enquire why the full settlement sum had not been paid, but the applicant did not return her calls.

18 On 1 December 2009, Ms Hanslow emailed to the applicant requesting an explanation as to why the full settlement sum had not been paid. On 2 December 2009, the applicant told her that it was due to deduction of costs occasioned by the delay in providing answers to interrogatories.

19 On or about 20 April 2010, the applicant prepared a draft statement of proposed distribution of Ms Virtue's estate. It contained many errors and the errors were later repeated in a letter from the applicant to Ms Hanslow dated 3 May 2010.

20 On 13 May 2010 and 29 August 2010, Ms Hanslow wrote letters of complaint to the applicant but he did not reply to the letters. Thereafter, Ms Hanslow complained to the Commissioner.

21 On or about 12 January 2011, the Commissioner published Ms Hanslow's complaint to the applicant. The applicant did not respond immediately. It took several attempts by the Commissioner's staff to get him to respond, which he did on 31 March 2011.

22 On 10 May 2011, the Commissioner wrote to the applicant and thereafter the Commissioner's staff had to make further efforts to get the applicant to respond, which he did on 29 July 2011.

23 On 9 August 2011, the Commissioner wrote to the applicant inviting submissions and material to be taken into account in making a decision under s 4.4.13. The applicant did not respond to the invitation.

24 Charge 3 alleged professional misconduct comprised of failing to use best endeavours to complete legal work as soon as reasonably possible and Charge 4 alleged professional misconduct comprised of failing to communicate effectively and promptly with clients. The charges arose out of a complaint made by one Virginia Tregonning as to delay by the applicant in the administration of the estate of Ms Tregonning's later brother (the Chapman estate) and poor service in relation to the Chapman estate. The facts of the charges (which were admitted) were as follows.

25 On or about 18 February 2010, the Commissioner received a complaint from Ms Tregonning on her own behalf, and on behalf of her sisters Ms Geniene Storer and Ms Fiona Reed, alleging delay by the applicant in finalising the administration of the Chapman estate and poor service in relation to the Chapman estate.

26 Mr Chapman died intestate on 22 May 2007. The estate was so small that letters of administration were not needed or sought. The applicant was instructed to act in May 2007 but, apart from one meeting held on 22 December 2008, he failed to communicate with Ms Tregonning again until July 2009.

27 The work required to administer the estate was largely comprised of getting in the proceeds of insurance policies and superannuation funds from MLC Ltd, Mercantile Mutual Life, Just Super/Host Plus, Australian Super and Tower Business Superannuation. On or about 4 June 2007 Henderson and Ball wrote to the funds seeking details of the steps require to obtain the proceeds and the several funds responded promptly. Then, between late June 2007 and October 2008, the funds sent several letter to Henderson and Ball pressing for details and forms to finalise the claims, but the applicant did not respond to any of those requests. Nor did he do any other work towards completion of the administration of the estate. Consequently, some of the funds treated moneys owing to the Chapman Estate as unclaimed moneys and sent them to the Commissioner of Taxation.

28 During the latter half of 2008, Ms Tregonning telephoned the applicant each week seeking information as to the state of administration of the estate, but the applicant did not respond to her calls until 22 December 2008. On that day, he had a meeting with her and her sisters at her request. At the meeting, he apologised for his delay and lack of communication.

29 On or about 16 March 2009, Ms Tregonning wrote a letter of complaint to the applicant. He did not respond to the letter but assigned an employee to work on the estate. Thenceforth, until July 2009, the administration of the estate proceeded without delay. On or about 22 July 2009, however, the applicant appointed a different employee to work on the administration of the estate and late in 2009 work ceased again.

30 On 30 January 2010, Ms Tregonning wrote another letter of complaint to the applicant, but the applicant did not respond to the complaint. Consequently, on 18 February 2010, Ms Tregonning lodged a complaint with the Commissioner.

31 The Commissioner published Ms Tregonning's complaint to the applicant on 28 April 2010 and, on or about 25 May 2010, the applicant respondent stating inter alia that he was extremely embarrassed about the handling of the matter; it had taken more time than was necessary to make enquiries; the matter had been handed to an employee solicitor but due to staff changes two more solicitors had become involved; and the applicant would contact Ms Tregonning and her sisters personally to apologise and offer whatever assistance they might wish.

32 On 17 June 2010, the Law Institute of Victoria wrote to the applicant requesting further information about the Chapman estate. That was followed by further delay by the applicant in responding to the LIV's questions. Eventually, on 6 May 2011, he responded to the effect that the complaints were accurate, except that he recalled some extra communications; the delay, inadequate communication and poor service were all as a result of workload, which the applicant added he did not regard as an excuse; and the applicant had not spoken to the complainant since 2008, due to embarrassment, but still wished to offer her and her sisters a personal apology.

33 On 19 May 2011, Ms Tregonning informed the Commissioner that she did not want the applicant to undertake any further work on the estate.

34 On 6 October 2011, the Commissioner wrote to the applicant inviting submissions and material to be taken into account in making a determination under s 4.4.13 in relation to the Tregonning complaint. The applicant did not respond to the invitation.

35 Charge 5 alleged wilful failure by the applicant to honour an undertaking to the Commissioner to comply with the applicant's continuing professional development ('CPD') obligations. The facts (which were admitted) were as follows.

36 On or about 13 August 2007, the Commissioner received a complaint from a Mr Jamie Strauch ('the Strauch complaint'). Arising out of the Strauch complaint, on or about 23 March 2011 the applicant gave an oral undertaking to two members of the Commissioner's staff that, within the following six months, he would complete six hours of compulsory professional development in the areas of ethics and practice management in addition to his usual CPD requirements ('the Undertaking').

37 On 25 March 2011, the Commissioner wrote to the applicant reprimanding the him in relation to the Strauch complaint. In the letter, the Commissioner noted the Undertaking and requested that the applicant confirm his completion of six CPD points by 25 September 2011 in accordance with the Undertaking.

38 On or about 2 March 2012, the Commissioner commenced an investigation under section 4.4.8 of the Act into the applicant ('the section 4.4.8 investigation') due to the applicant's failure to confirm to the Commissioner that he had completed the required CPD points in accordance with the Undertaking.

39 On or about 2 March 2012, the Commissioner wrote to the applicant seeking full details of further CPD training undertaken by the Respondent pursuant to the Undertaking.

40 On 29 March 2012, the applicant wrote back to the Commissioner enclosing what purported to be details of CPD training undertaking 'for the current CPD year'. The letter stated that, in the period 25 March 2011 to 25 September 2011, the applicant completed the following further CPD training:

41 As appears from the letter, the applicant undertook only two hours of relevant CPD within the six months beginning 25 March 2011, as opposed to the six additional hours which were the subject of the Undertaking. In the period from 25 September 2011 to 29 March 2012, the applicant completed a further three hours of CPD training in substantive law.

42 On 10 April 2012, the Commissioner wrote to the applicant seeking a further response to the Commissioner's letter of 2 March 2012, failing which, the letter stated, the Commissioner would assume that the applicant conceded he had breached the Undertaking. The Commissioner did not receive a response to the letter.

43 On 9 May 2012, the Commissioner wrote to the applicant inviting submissions and other material to be taken into consideration before a decision was made under section 4.4.13 of the Act in relation to the section 4.4.8 investigation. The applicant did not respond to the invitation.

44 On 30 November 2012 and 29 January 2013, the Commissioner filed two further Applications for Order with VCAT concerning the applicant's failure to respond to the Commissioner's requests for written explanations in respect of complaints by three other clients. Those matters were heard together with Charges 1 to 5 and the applicant pleaded guilty to each of them.

45 At the outset of the hearing before VCAT, counsel for the applicant stated that the applicant pleaded guilty to all charges except Charge 5 and that, as to Charge 5, the applicant pleaded not guilty to professional misconduct but guilty to unsatisfactory conduct. The Tribunal rejected the plea to Charge 5. The Vice President held that a charge of unsatisfactory conduct was not an available alternative charge to a charge of professional misconduct under s 4.4.6. That ruling is no longer disputed.

46 The Vice President then turned to an analysis of relevant sentencing considerations and concluded as follows:

After taking all circumstances into account the Tribunal has concluded that a reprimand, and suspension of the Respondent's practising certificate is warranted, together with an additional condition, as recommended, requiring that the Respondent be entitled to practise under an employee practising certificate only, for a period of 12 months at the expiration of the suspension. The period of suspension will be 9 months.

In reaching this determination, the Tribunal has had particular regard to:

(a) the serious nature of the charged conduct;

(b) the length of the period over which such conduct continued;

(c) the number of clients who have been affected by the professional misconduct or who have still not had their complaints addressed;

(d) the absence of any significant extenuating circumstances;

(e) the failure or refusal of the Respondent to provide answers to legitimate enquiries made by the Applicant;

(f) the Respondent's continuing non-complying conduct in relation to such enquiries;

(g) the Respondent's prior misconduct, involving a number of clients over an extended period and involving similar misconduct;

(h) the absence of any compelling evidence as to the Respondent's current capacity either to manage a heavy workload or implement appropriate strategies and procedures to communicate with clients; and

(i) the significant objectives of general deterrence; and maintaining public confidence in the performance of legal practice by a licensed practitioner.

47 Her Honour further ordered that the applicant pay the Commissioner's costs which she fixed in the sum of $11,000.

There was no basis for the Tribunal's finding that the applicant 'had not presented any compelling evidence which goes to either explain or excuse his conduct'.

The Tribunal erred in failing to give reasons as required by s 117 of the VCAT Act as to why a lengthy period of suspension followed by a longer period of practice as an employee was the correct or preferable decision under s 4.4.16 of the LPA and, conversely, why a fine and a period of supervised practice as the holder of a full practising certificate was not.

The Tribunal erred in failing to take into account that the power conferred by s 4.4.16 of the LPA was to be used to protect the public and the other purposes set out in s 4.4.1, and the Tribunal erred by making orders of which the punitive effect was beyond what was requisite for those purposes.

The Tribunal erred in law in making disciplinary orders under s 4.4.16 of the LPA which were manifestly excessive in the sense that no reasonable Tribunal could have imposed that outcome in the exercise of the discretion having regard to the whole position.

Ground 1 - Evidence to explain or excuse conduct

49 At paragraph 83 of her reasons, the Vice President stated that:

In the Tribunal's view, the Respondent has not presented any compelling evidence which goes to either explaining or excusing his conduct. In particular, the Tribunal notes the following:

(a) While Ms Little Psychologist assessed the Respondent with mild/moderate depression in June 2012, there is no more recent assessment reported and no corroborative evidence as to his mental state between 2000 and mid-2012;

(b) Respondent's Counsel referred to the development of a 'psychological block' which effectively paralysed the Respondent from handling even simple tasks. However, there is no such assessment or characterisation of the Respondent's behaviour having been made by any relevant health professional. The Tribunal rejects such characterisation in the circumstances; and

(c) The Respondent has described personal disruptions: marital conflict and breakdown; death of one parent and serious illness of another; which are not uncommon events of a kind likely to affect most busy professionals at some stage. Without seeking to minimise the upset and distress which these events occasioned to the Respondent, they do not constitute exceptional circumstances such as to provide an acceptable excuse or explanation for his conduct. The circumstances, as disclosed, do not amount to a serious mental impairment;[1] or significant personal tragedy;[2] nor other circumstances which made it so difficult or impossible for the Respondent to have complied with his obligations. As a principal in a law practice which comprised two other partners and employee solicitors, he had other resources available to him from whom he could have sought appropriate assistance.

50 Counsel for the applicant contended that there is an apparent contradiction between the Tribunal's statement that the applicant did not present any compelling evidence to explain or excuse his conduct and the evidence of such to which the Vice President referred in the passage of her reasons immediately preceding that statement. Further or alternatively, counsel argued, the Tribunal erred by treating the submission of 'psychological block' as tantamount to one of mental disorder necessitating verification by a 'relevant health professional' as opposed to a submission that the applicant was suffering from a recognisable human failing or condition which stood apart from metal illness and which, in the past, the Tribunal has accepted as a relevant sentencing consideration. Counsel relied in particular on earlier decisions of the Tribunal in Legal Services v Spalding;[3] Legal Services Commissioner v Nixon;[4] and Legal Services Commissioner v Morgan.[5]

51 In counsel's submission, the Tribunal also erred in failing to recognise that Ms Little's assessment of the applicant (as suffering from mild/moderate depression in June 2012 referable to a confluence of personal and professional stressors) was relevant to a determination of the need for public protection; and by confining its consideration of the applicant's personal circumstances to the question of whether they amounted to 'exceptional circumstances such as to provide an acceptable excuse or explanation' for the applicant's conduct, rather than considering whether the applicant's personal circumstances were such as to reduce the applicant's culpability, reduce the need for specific deterrence and render the applicant an inappropriate or less appropriate vehicle for general deterrence.

52 Finally on this point, counsel submitted that it was apparent, too, from the fact that the Vice President imposed exactly the penalty which the Commissioner contended should be imposed, without making any allowance for the applicant's personal circumstances, that the Tribunal simply failed to have regard to the effect on penalty of the applicant's circumstances.

53 In our view, there is some force in those submissions. With all respect to the Vice President, her statement that there was no more recent psychological assessment of the applicant than June 2012, and no corroborative evidence as to his mental state between 2000 and mid-2012, was incorrect. Ms Little's psychological report dated 8 March 2013, which was in evidence before the Tribunal, stated that:

I have provided psychological counsel[l]ing sessions, on a fortnightly basis, for Andrew [the applicant] since June 2012. He was referred for counselling for stress and depressed mood. He had requested a referral from his General Practitioner, who referred him to me. Although Andrew has been on antidepressant medication for 4 years, his mood is still depressed. Whilst his concentration and sleep have not been disturbed, his energy levels are low; motivation is reduced and extra demands can seem overwhelming. In August 2012, he scored 18 on the Beck Depression Inventory, indicating mild/moderate depression.

Andrew had seen a psychologist (now retired) in 2007/2008, when he had also been under considerable stress. At that time, he reports that his marriage of twenty plus years was disintegrating and his father had passed away. This was an extremely stressful period for him and he found counsel[l]ing very beneficial. Hence, in 2012, when under extreme stress, he pro-actively sought help.

When Andrew presented in June 2012, he was experiencing stress from many areas- financial, family and working environment, but the main stressor was the necessity of selling the family home. For the last four years, Andrew has fully supported his ex-wife and two children, age 16 and 19 (both students), in the large family home. This home has been the family home for the entirety of the children's lives. Andrew had hoped to maintain this for another two years, until his daughter, age 16, finished secondary school. Andrew lives separately in his own residence. However, the financial burden of maintaining two homes was causing severe financial stress.

Andrew felt acutely disappointed in his inability to continue the financial arrangements and greatly feared the effect of the disruption on his daughter, and consequently, her education. He delayed telling his daughter of his decision and this created extreme stress and lowered his mood. At the same time, he was physically very unwell and underwent several weeks of medical investigation...

54 Equally, the Vice President's statement that there was no assessment by a relevant health care professional of the applicant suffering from a 'psychological block' was incorrect, or at least paid insufficient regard to a further passage of Ms Little's report wherein she opined that:

When stress is high and mood flat, tasks can seem very overwhelming and motivation hard to maintain. Despite this, Andrew reports that he has managed his workload; he has always enjoyed his work and doesn't find the work, per se, stressful. However, he lacked the energy to deal with any extra demands. At this time, he was required to respond in writing to the Legal Services Commission. Also, at this time, Andrew's mother was diagnosed with pancreatic cancer. Andrew is very close to his mother and this additional stress, together with low energy, immobilized him; communicating with the Commissioner seemed overwhelming.

55 Admittedly, Ms Little did not describe the applicant's psychological 'immobilization' in terms of a 'psychological block'. It may be assumed that that was counsel's turn of phrase. But it is hardly surprising that a qualified health care professional would eschew the argot of pop psychology. And, in any event, as this court's decision in R v Verdins[6] makes clear, a sentencing court - and for present purposes the same applies to the Tribunal[7] - should not have to concern itself with how a particular mental condition is to be classified:

What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.[8]

56 Given that Ms Little's report was not challenged, there was uncontested psychological evidence before the Tribunal that the combined effects of the applicant's psychological and physiological disabilities at relevant times so immobilized him as to make the prospect for him of any additional task appear to be overwhelming. In light of Verdins, that was a relevant consideration which her Honour ought to have taken into account in synthesizing the appropriate sanction. Instead, as her Honour stated in her conclusion, she approached the matter as if there were an absence of any significant extenuating circumstances.[9]

57 So to say is not to overlook that the Vice President referred in her reasons to what she described as the applicant's personal disruptions of marital conflict and breakdown, death of one parent and serious illness of another. Nor is it to gainsay the rectitude of her Honour's approach that, generally speaking, members of the profession are expected to deal with such adversity while maintaining professional standards. But to dismiss their effect upon the applicant as 'unexceptional events' which were 'likely to affect most busy professionals at some stage' was, with respect, to ignore the undisputed psychological evidence that, in the applicant's case, the concatenation of personal disruptions which he faced at the relevant time was productive of a degree of depression which so immobilized him as to make any additional task, including the task of communication with the Commissioner, seem to be overwhelming.

58 Possibly, it would have been open to the Vice President to reject or discount the effect of Ms Little's report. But that was not the way in which her Honour proceeded. It might also have been open to her Honour to conclude that, despite the psychological effects described by Ms Little, the requirements of denunciation, general deterrence and community protection demanded a sanction of the gravity which her Honour favoured. But, again, that is not the way in which her Honour proceeded and it is not possible to say what her conclusion would have been if she had so proceeded.

59 In the result, we consider that the Vice President erred in failing to have regard to significant aspects of the uncontradicted psychological evidence and, therefore, that Ground 1 is made out.

60 Before the Tribunal, counsel for the applicant submitted that all of the proper protective objectives of the penalty to be imposed on the applicant could be sufficiently achieved by imposition of a fine, a period of supervised practice, the provision of information and an order for costs. The Vice President rejected that submission as follows:

Counsel for the Respondent [applicant in this proceeding] submitted that suspending the Respondent's practising certificate would be an overreaction where more specific sanctions could be imposed which would still satisfy the public interest. In particular, Counsel submitted that the following sanctions would be appropriate:

(a) a fine;

(b) conditions attaching to the practising certificate, which include that the Respondent be subject to supervision and monitoring by an approved mentor;

(c) a requirement that the outstanding information previously requested under s 4.4.11 be provided within a specified period; and

(d) costs;

(e) Counsel further contended that, for a professional person, a reprimand has the potential for serious adverse implications.[10]

For reasons already noted above, the Tribunal does not accept that the sanctions recommended by Respondent's Counsel adequately reflect the seriousness of the Respondent's misconduct.

61 Counsel for the applicant contended that the Vice President's reference to the 'reasons already noted above' did not comply with the obligation imposed on the Tribunal by s 117(1) of the VCAT Act to give reasons which explain the path of reasoning from the facts as found, via the application of relevant principle, to her Honour's conclusion. In counsel's submission, given that the Tribunal proceeded on the basis that cancellation of the applicant's practising certificate was not called for (and it was not sought by the Commissioner), it was apparent that the Tribunal was not persuaded that the applicant had ceased to be a fit and proper person to practise. Yet the Tribunal gave no explanation as to why a period of supervised practice would not achieve all by way of protection of the public that could be achieved by suspension for nine months followed by employee practice for 12 months.

62 Counsel also criticised the Tribunal's treatment of the probable financial consequences of its orders. The Vice President said this:

Respondent's Counsel submitted to the effect that if the Respondent's practising certificate were suspended for any period, he would be unable to support his family. While the Tribunal is entitled to take into account such factors in determining whether or not to suspend a practising certificate,[11] the Tribunal notes that the Respondent did not provide any information as to his current financial affairs; his capacity to draw upon financial resources; the financial circumstances of his ex-wife; or his capacity to derive income other than as a practising solicitor.

In the Tribunal's view, the Respondent's loss of employment as a solicitor, during any period of suspension, is a necessary consequence of an appropriate sanction.

63 In counsel's submission, that statement was wrong because in fact the applicant did give evidence as to his current financial affairs, capacity to draw upon financial resources and capacity to derive income other than as a practising solicitor. As counsel noted, earlier in her reasons the Vice President had indeed expressly referred to that evidence, as follows:

... the Respondent [applicant] gave evidence that he and his wife separated in 2008, following an acrimonious breakdown in their marriage. He endeavoured to maintain his wife and children in the family home while he lived in separate accommodation.

Since the separation from his wife:

(a) He had been prescribed the antidepressant Lexipro by his General Practitioner;

(b) In or about June 2012, he discovered that an account which he had set aside to pay education expenses for his children had in fact been fully drawn by his wife. This circumstance created financial difficulties;

(c) His daughter suffered severe bullying at school, which resulted in two bullies being asked to leave the school;

(d) In or about September 2012, he was diagnosed with acidic colitis, which required a six-week course of medication;

(e) In September/October 2012, his mother was diagnosed with pancreatic cancer; and

(f) He will now have to sell the family home.

The combination of the above matters all became too much for him and his work suffered as a consequence. He failed to provide responses to the Applicant for the same reason.

The Respondent did try to offload work to employee solicitors, when he recognised that he was not coping. He currently handles about 100 files and states that he is coping with other matters which have not been the subject of complaint.

The Respondent confirmed that there have been issues within the partnership since 2009, for which he sought advice from Mr Gronnow of the Law Institute of Victoria. The Respondent has a dysfunctional relationship with his partners; the partnership is under significant tension; and there would be no possibility of him working as an employee solicitor within the firm.

If his practising certificate were to be suspended, the Respondent said that he would be unable to support his family and the partnership would be dissolved.[12]

64 Moreover, in counsel's submission, the financial loss the result of having to cease practice was in any event obvious and if the Tribunal proceeded on the basis, as it appears to have done, that the applicant or his ex-wife may have other sources of income, it had taken into account irrelevant considerations.

65 We accept those submissions in part. It is not apparent from the Vice President's reasons whether her Honour accepted or rejected the applicant's evidence that suspension would mean that he would be unable to support his family. If her Honour were not persuaded that it was so, her reasons failed to disclose why in light of the applicant's undisputed evidence and Ms Little's report as to the applicant's financial position, and the stresses it imposed on him, her Honour was not persuaded. On the other hand, if her Honour accepted that suspension would leave the applicant unable to support his family, her reasons failed to disclose why her Honour considered that the imperatives of denunciation, general and specific deterrence and community protection required nothing less than the dire consequence of depriving the applicant of his certificate and thus of his ability to support his family. The gap in reasoning is unacceptable. As Chernov JA said in Quinn, although the Tribunal's discretion is very wide it must be exercised judicially and the Tribunal must give reasons which explain its process of reasoning.

66 We do not overlook that, later in her reasons, her Honour stated that;

The available sanctions and the objectives of specific and general deterrence, depend upon the sanction having punitive effect,[13] and

It follows as a necessary corollary that it is not an objective of an order, to seek to maximise or maintain the practitioner's capacity to earn a living and pay his, her debts. Otherwise all legal practitioners who find themselves in impecunious circumstances, could, on that basis alone, seek to resist an order to suspend or cancel their practising certificate.

67 It appears, therefore, that her Honour may have considered that the financial effects of the sanction to be imposed on the applicant were an irrelevant consideration. If so, however, her Honour misconceived the authorities which she cited. It is true that, as Maxwell P said in Quinn,[14] although all sanctions are by their nature punitive, and the objectives of specific and general deterrence depend on the sanctions having punitive effect, the overriding concern is with public protection. So, therefore, where there is a choice of sanctions, it is to be expected the Tribunal will choose the sanction which maximises public protection. But, as Chernov JA observed in Quinn,[15] when the Tribunal formulates a sanction, it must take into account all relevant matters, in much the same way that a sentencing judge is required to take into account all relevant matters when synthesizing a sentence. The financial impact of a sentence on an offender or, as in this case, the financial impact of a sanction on an offender is a relevant consideration; for the obvious reason that any adverse financial impact is self-evidently penal. If, therefore, the Tribunal is capable of achieving the necessary degree of community protection (including the necessary degrees of denunciation and general and specific deterrence) by means of a sanction which is without or productive of less adverse financial impact on an offender than another possible disposition, one would ordinarily expect the Tribunal to choose the former over the latter. Consequently, to treat the question of financial effect as if it were irrelevant to sanctioning process would be an error.

68 To a considerable extent, Grounds 2 and 3 overlap. Under cover of Ground 3, counsel for the applicant submitted that it is clear upon authority that, in the absence of a finding that a person is no longer 'fit and proper', a disqualification order is not justified solely to protect the public. He relied on observations of McHugh J in Rich v ASIC[16] to that effect. In counsel's submission, given that the Tribunal did not cancel the applicant's practising certificate, it must follow that the Tribunal was not persuaded that the applicant was not a fit and proper person to practise and, in those circumstances, the Tribunal erred in making orders which effectively remove the applicant from the profession for at least 21 months (and, given his age and circumstances, probably for much longer).

69 We do not consider that McHugh J's observations assist the applicant. Those remarks concerned whether provisions under which the court had a discretion to disqualify a director from managing a corporation should be characterised as penalties or were intended solely for the purposes of protecting the public. As at present advised, it seems to us that, depending on the circumstances of a given case, it would be open to the Tribunal to order a period of suspension to recognise the seriousness of past conduct notwithstanding that the Tribunal might not be persuaded that the solicitor in question was not a fit and proper person. For example, the Tribunal might take the view that, by reason of the facts of a given case, the solicitor was not for the time being a fit and proper person but would be so after a period of suspension. We are inclined to think that such if any problems as there might be with the Tribunal's analysis on this part of the matter are more in the nature of a failure to explain why suspension was necessary rather than that as, a matter of principle, suspension is not available in a case in which cancellation is not called for.

70 In effect, Ground 4 is a contention of manifest excessiveness or unreasonableness resulting in a penalty. We doubt that it adds anything of substance to the grounds already mentioned. For the reasons which follow, however, we accept that the sanction was excessive.

71 Ground 1 being having been made out, the discretion to sanction the applicant is re-opened and must now be re-exercised afresh.

72 As the Vice President concluded, the applicant's contraventions of the Act are properly to be characterised as serious, repeated breaches of his obligations to act with reasonable skill, care, promptitude and professionalism, and to comply with his continuing legal education and reporting obligations. Although there is no suggestion of dishonesty on his part, his failings are of a kind which reflect adversely on his competence as a solicitor and are calculated to bring the profession into disrepute. Additionally, this was not the first occasion on which the applicant had so offended. As the Vice President recorded, on 16 October 2000, he was found guilty of unsatisfactory professional conduct without any further action being taken. On 5 August 2004, a caution was issued to Henderson & Ball pursuant to s 151(3)(b) of the LPA. On 13 July 2005, he was reprimanded pursuant to s 151(3)(b) of the LPA. On 21 March 2007, he was again reprimanded. On 13 March 2009, he was found to be guilty of professional misconduct the result of a matter involving 16 weeks' delay, and he was fined $1,000. On 24 May 2010, he was found guilty of unsatisfactory professional conduct and ordered to pay compensation of $500. On 19 April 2011 he was reprimanded pursuant to s 4.4.13(3)(b) of the LPA for failing to respond to the Commissioner's requests for information.

73 In all the circumstances, the applicant's offending on this occasion called for a significant sanction to mark the Tribunal's denunciation of his breach of professional standards and, thereby, to provide adequate general deterrence; and, in view of his past offending, to provide a necessary degree of specific deterrence and community protection. Were it not for the applicant's psychological condition at relevant times, we would accept that a period of suspension of the kind ordered by the Vice President would have been in order.

74 It remains, however, that, according to the undisputed evidence, the applicant's psychological condition was significantly compromised at relevant times. In our estimation, that substantially ameliorates his moral culpability and thus the requirements of denunciation and general deterrence. It is also to be borne in mind that, on the evidence, the loss of the applicant's practising certificate would have profound financial consequences for him and, as a consequence, be likely to exacerbate his existing psychological condition. In the result, the principal concerns are specific deterrence and community protection and thus ensuring that the applicant is closely supervised and controlled in his practice until he has once again demonstrated his competence and reliability to practise as a principal.

75 We agree with the Vice President that the scale of the applicant's offending seen in light of his previous offending is such that he should be suspended from practice as a principal solicitor for a significant period. We are not persuaded, however, that there is much to be gained by way of deterrence or community protection, still less by way of rehabilitation, by requiring him to stand out of the profession altogether. Nor should he be deprived of a livelihood if there are other means of dealing with the problem. In the result, we have come to the view that he should be suspended from practice as a principal solicitor for a period of 21 months, but be permitted to practise as an employee solicitor under the supervision of a principal for the duration of that period.

76 Accordingly, we shall grant leave to appeal, treat the appeal as instituted and heard instanter and allowed, set aside the orders below and, in lieu thereof, order that the applicant's practising certificate be suspended for a period of 21 months on condition that he be permitted to practise under an employee practising certificate as an employee solicitor for the duration of that period. The application for stay will be dismissed.

77 The applicant should pay the Commissioner's costs below, which were fixed in the sum of $11,000, as the Vice President determined. The applicant, however, should have his costs of the appeal.

[1] Cf LSC v Moore [2010] VCAT 742 where the respondent suffered acknowledged addictions to alcohol and gambling.

[2] Cf Legal Services Commissioner v Cain [2009] LPT 19 where the respondent had to cope with the death of his wife from cancer and care for his young children.

[7] Quinn v Law Institute of Victoria (2007) 27 VAR 18, [35]-[36] (Maxwell P).

[10] See, e.g., Legal Services Commissioner v Moore (Legal Practice) [2010] VCAT 742, [44], citing Marks J in Peeke v The Medical Board of Victoria (unreported, Supreme Court of Victoria, 19 January 1994) at 6 and Medical Practitioners Board of Victoria v Swieca [2009] VCAT 419.

[11] See, e.g. Ha v Pharmacy Board of Victoria [2002] VSC 322, [120]; applied in Legal Services Commissioner v Hession (Legal Practice) [2010] VCAT 1687, [17].

[13] Her Honour cited Hannebery v Legal Ombudsman [1998] VSCA 142, [22] and Quinn v Law Institute of Victoria [2007] VSCA 122, (2007) 27 VAR 1, 7 [30] and [35].

[16] Rich v ASIC [2004] HCA 42; (2004) 220 CLR 129, 148 [42] (McHugh J).

Civil and Administrative Tribunal Act 1998

Burgess v McGarvie [2013] VSCA 142

At a glance

Court

Decision date

Before

Source

Judgment (107 paragraphs)

Burgess v McGarvie [2013] VSCA 142 (14 June 2013)

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Legislation Cited (2)

Cases Cited (2)