1. The LSC's Amended Notice of Application dated 7 May 2013 brings two charges against Mr Booth under the 2004 Act. Charge 1 alleges:

Professional misconduct within the meaning of s.4.4.3(1)(b) of [the 2004 Act] for engaging in conduct that justifies a finding that the Respondent was not a fit and proper person to engage in legal practice namely the following conduct:

(a) he has not lodged income tax returns for each of the financial years from 1 July 1989 to 30 June 2000; [a period of 11 years]

(b) he did not lodge on time income tax returns for each of the financial years from 1 July 2000 to 30 June 2005; [a period of five years]

(c) he has failed to disclose income he earned in professional practice as a legal practitioner:

(i) at all for the financial years 1 July 1989 to 30 June 2000 [a period of 11 years];

(ii) on time for financial years 2000 to 30 June 2005 [a period of five years];

(d) he failed to make provision for and to pay at all or on time income tax on income he earned in legal practice for 1 July 1989 to 30 June 2005;' [a period of 16 years]

1. In relation to (b) the allegation was that while Mr Booth did lodge income tax returns for the years ended 30 June 2001 to 30 June 2005, these were lodged late (presumably some time shortly prior to 19 September 2007, which was when the ATO issued assessments for those five years).
2. In relation to (d), the evidence given on behalf of the LSC covered the period up to 20 May 2010. So the LSC's case relates to conduct during the period from when Mr Booth's 1989/90 tax return was due, up to 20 May 2010. That was the date when Mr Booth consented to an order by the County Court that he pay the Deputy Commissioner of Taxation the sum of $446,636.77 plus costs. This amount included income tax for the five years from 30 June 2001 to 30 June 2005. The evidence was that during the period to 20 May 2010, income tax was not paid in relation to the 16 financial years from 1 July 1989 to 30 June 2005.
3. Charge 2 alleges professional misconduct as defined at common law. It specifies the same particulars (a) - (d). These two charges were brought in the alternative. It is apparent from the LSC's submissions on the transitional provisions that the LSC sought to pursue Charge 1 in preference to Charge 1. So Charge 1 falls away.
4. Section 4.4.3 provides:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

Section 4.4.4 specifies conduct that is capable of constituting professional misconduct and section 4.4.6 specifies conduct that constitutes professional misconduct.

(2) For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.

1. The 2004 Act also provides in section 4.4.4 that conduct in respect of which there is a finding of guilt for a tax offence is capable of constituting unsatisfactory professional conduct or professional misconduct. Whilst this was not referred to in the charge, it was acknowledged in Mr Over's submission. This provides further confirmation of what is already very clear from the authorities, that tax offences by lawyers may attract disciplinary action.

1. The LSC produced a certificate from the Law Institute of Victoria (LIV) dated 28 February 2013 under s.7.2.5(1) of the 2004 Act. This indicated that Mr Booth was admitted to practice on 7 June 1971, and has held a Principal Practising Certificate for the period 1 January 1981 - 6 March 2009, and 27 May 2009 - 30 April 2012. He is not the holder of a current practising certificate.[1]
2. On 13 September 2006, the Australian Tax Office (ATO) commenced proceedings in the Magistrates' Court alleging that Mr Booth failed to lodge income tax returns for each of the years ending 30 June 1990 through to 30 June 2005 (16 years).
3. On 17 October 2006, the Magistrates' Court made orders that within 21 days, Mr Booth was to lodge tax returns for each of those 16 years.
4. He did not do so, and on 15 November 2007 he was convicted in the Melbourne Magistrates' Court for failing to comply with those orders. He was given a six month jail term, wholly suspended, subject to an undertaking to be of good behaviour for two years.
5. Mr Booth subsequently provided tax returns for the years ending 30 June 2001 - 5 (five years). As a result, on 17 September 2007, the ATO issued notices of assessment for those years.
6. The effect of these notices was summarised by the LSC as follows:

1. Mr Booth did not pay the tax assessed in those notices. On 13 November 2008, the Deputy Commissioner of Taxation commenced proceedings in the County Court seeking orders for the payment of $378,968.24 for various amounts owed, including for items such as superannuation guarantee contributions for his employees, GST and PAYG contributions, and including his income tax for the five years from 30 June 2001 to 30 June 2005.[2]
2. On 20 May 2010, Mr Booth consented to an order in those County Court proceedings that he pay the Deputy Commissioner of Taxation the sum of $446,636.77 plus costs.

1. I am satisfied that Mr Booth engaged in the conduct alleged in (a) - (d) of Charge 1, for the following reasons.
2. In relation to (a), Mr Booth has not lodged income tax returns for the 11 financial years ending on 30 June 1990 to 30 June 2000. This failure to lodge income tax returns was the subject of charges brought by the ATO in September 2006, and findings by the Magistrates' Court on 17 October 2006 that he had not done so. Also, in his letter of 27 April 2010, Mr Booth admitted that he had not lodged tax returns for the years 1995 to 2000. And in his letter to the LSC of 24 November 2010, he provided an explanation as to why he had not lodged income tax returns for all of the years ending 30 June 1990 to 30 June 2005. This related to the fact that his sister, who was his accountant, had moved to Fiji in about 1991. He acknowledged that at that time he should have appointed another accountant but did not do so. Rather, he had agreed with his sister that she would continue to act as his accountant despite being in Fiji. In 1993/4 she returned from Fiji and the intention was to complete all outstanding matters. Unfortunately, his sister died suddenly and once again Mr Booth did not take steps to appoint another accountant. He said his matters then drifted and his own personal affairs took a second place to those of his clients. Thus, Mr Booth's statements confirm that Particular (a) is satisfied: he did not lodge income tax returns for those 11 years.
3. In relation to Particular (b), Mr Booth did not lodge income tax returns on time for each of the five financial years ending 30 June 2001 to 30 June 2005. Mr Booth did lodge returns for these years, but it was not until after the orders of the Magistrates' Court of 17 October 2006. The Court found that he had failed to lodge returns for those years and ordered him to do so within 21 days. He failed to comply with those orders, which gave rise to him being sentenced to six months imprisonment, but suspended on the basis of his undertaking to be of good behaviour for two years. That was on 15 November 2007. By that time, however, tax returns for those five years had been provided, and five assessment notices had been issued by the ATO (on 17 September 2007). Thus, Particular (b) is proved.
4. Particular (c) alleges two things. First, that Mr Booth failed to disclose income he earned in professional practice as a legal practitioner for the 11 years ending 30 June 1990 - 30 June 2000. And second, that whilst he did disclose his income for the five years ending 30 June 2001 to 30 June 2005, this was done late. The fact of non-disclosure of income follows from the findings for Particulars (a) and (b) above, that he did not submit tax returns at all (in relation to the period 30 June 1990 - 30 June 2000) and on time (in relation to the years ending 30 June 2001 to 30 June 2005).
5. Finally, Particular (d) is also satisfied. Mr Booth failed to make provision for, or to pay on time, income tax on income he earned in his legal practice for the whole of the 16 year period. As stated, the evidence given on behalf of the LSC did not extend beyond 20 May 2010. There is no evidence one way or the other as to whether Mr Booth has made any payment following the County Court order of 20 May 2010 in the sum of $446,636.77 plus costs.
6. Prior to that, however, two things are apparent: First, he had not paid his tax on time for the five financial years ending 30 June 2001 to 30 June 2005. He had not paid it by 20 May 2010. Second, in relation to the 11 years ending 30 June 1990 to 30 June 2000, Mr Booth's failure to pay income tax is demonstrated by his own statements referred to above. There was no indication in relation to that earlier period that the Deputy Commissioner of Taxation pursued debt recovery proceedings. Indeed, there was no suggestion that any attempt has been made to quantify his tax liability for that period. It is also clear that Mr Booth did earn income as a legal practitioner during the 16 years from the year ending 30 June 1990 to 30 June 2005. In relation to the last five of those years, this is demonstrated by his tax return. And in relation to the period 1 July 1989 to 30 June 2000, this was accepted by Mr Booth in his letter to the LSC of 18 December 2010.
7. These conclusions are reinforced by the fact that in his submissions filed on 11 June 2013, Mr Booth admitted engaging in unsatisfactory conduct, contending in effect that he had not engaged in professional misconduct. There is an implicit acceptance that he did engage in the conduct alleged in particulars (a) to (d).
8. In summary, the effect of the evidence and submissions received, in terms of Mr Booth's non-compliance with his tax obligations is as follows: Up to 20 May 2010 he did not lodge tax returns, disclose income earned from his practice, or pay income tax, for the 11 year period from 1 July 1989 to 30 June 2000. In relation to the later period, from 1 July 2000 to 30 June 2005, he did lodge his tax returns, and hence disclose his income from his practice, sometime in 2007. He had not paid the tax assessed in relation to that latter period, however, by 20 May 2010.
9. Thus, I am satisfied that the conduct alleged in (a) to (d) of the Charge did occur.

1. As described below, Mr Booth made a submission in writing after the hearing to the effect that his conduct should be determined not to be professional misconduct, but rather, that it only amounted to unsatisfactory professional conduct.

Non-compliance with taxation obligations by legal practitioners - the authorities

1. In the last 10 or 15 years, there have been many decisions of Courts and Tribunals throughout Australia dealing with disciplinary action against barristers and solicitors who have failed to comply with their taxation obligations. These were extensively reviewed in Legal Services Commissioner v Stirling[3]. Many of these, especially in the early part of that period, are NSW cases. Since 2010, there have been four other Victorian cases involving taxation non-compliance by lawyers.
2. The leading case is the 2001 decision of the New South Wales Court of Appeal in New South Wales Bar Association v Cummins.[4] The Court struck a barrister's name from the roll after finding him not to be a fit and proper person. It also found him guilty of professional misconduct at common law. In considering the question of whether a practitioner who has not complied with his taxation obligations is fit and proper to practise, Spigelman CJ, with whom Mason P and Handley JA agreed, identified the relevant public interest factors as follows:

There are four interrelated interests involved. Clients must feel secure in confiding their secrets and in trusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of he central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.[5]

The Court further found that Mr Cummins' failure to lodge tax returns disclosing income earned in professional practice was:

an inexcusable pattern of illegal conduct in complete defiance of his civic responsibilities. Mr Cummins put no evidence before the Court which could explain, let alone excuse, this conduct. For almost four decades, Mr Cummins took advantage of the full range of public services made available by taxation, not least in the provision of the Court system in which he earned his income. He left the burden of all of this to his fellow citizens. Throughout the four decades he engaged in the rank hypocrisy of advocating that other people should perform their legal obligations, while systematically refusing to perform his own.[6]

1. As was stated in Stirling[7] a failure to comply with taxation obligations could also constitute professional misconduct:

The Court in Cummins case also had to consider whether a failure to comply with taxation obligations could constitute professional misconduct, as opposed to personal misconduct, although the filing of tax returns did not directly relate to professional practice. It held that conduct not directly related to practice could constitute professional misconduct in two ways:

First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of 'professional misconduct' overlaps with and, usually it is not necessary to distinguish it from, the terminology of 'good fame and character' or 'fit and proper person'[8]

The preparation and filing of tax returns is closely related to the earning of income, including professional income. The link is 'sufficiently close' to justify a finding of professional misconduct on the basis of Mr Cummins' failure to lodge returns for thirty-eight years.

Similarly, and alternatively, the extent of Mr Cummins' failure to observe his legal obligations and civic responsibilities by such a systematic course of improper conduct over such a long period of time is of such gravity as to constitute professional misconduct, for the reasons I have mentioned above in relation to fitness.[9]

1. Some other cases in recent times dealing with non-compliance by lawyers with their tax obligations generally are, briefly, as follows:[10]
   • New South Wales Bar Association v Hamman[11] (1999) - Mr Hamman, a barrister, had admitted professional misconduct in dishonestly understating his taxable income over three years (for which he was convicted of indictable offences). In the New South Wales Court of Appeal Mason P 'emphatically dispute[d] the proposition that defrauding the Revenue' for personal gain is of lesser seriousness than defrauding a client, a member of the public or a corporation'.[12]
   • In New South Wales Bar Association v Somosi[13] (2001) - a barrister had failed to fulfil his taxation obligations for over 17 years. Despite personal and emotional upheaval and poor health, he was struck off the roll of practitioners. He was declared not to be a fit and proper person to practise. He was also declared to have engaged in professional misconduct. This was on the same basis as applied in Cummins, which was decided around the same time.
   • New South Wales Bar Association v Stevens[14] (2003)- a barrister had not filed tax returns for nearly 20 years. He consented to declarations by the court that he had engaged in professional misconduct, and that he was not a fit and proper person to practise. He was struck off the role, despite glowing character evidence.
   • New South Wales Bar Association v Young[15] (2003)- a barrister failed to lodge tax returns over 16 years and pay income tax. Despite glowing personal references, generosity, good works, the occurrence of tragic personal events, a non-lavish lifestyle and other factors which engendered the sympathy of the Court, he was found not to be a fit and proper person to practise and struck off the roll.
   • In Legal Practitioner Complaints Committee v Pillay[16] (2006) a barrister admitted that his failure to lodge income tax returns for six years and to pay income tax for about eight years was unprofessional conduct. Post Traumatic Stress following the death of his child soon after birth was accepted as an explanation for the initial default. The barrister had not led a lavish lifestyle. Nevertheless, his practising certificate was suspended for one year.
   • Davison v Counsel of New South Wales Bar Association[17] (2007) - a barrister failed to file tax returns and pay tax for 16 years and pay income tax for 20 years. His conduct demonstrated that 'he did not reach the requisite level of ethical fitness'. He was struck off the roll.[18]
   • In the Queensland case of Legal Services Commission v Hewlett[19] (2008) the legal practitioner failed to lodge tax returns for 11 years, with substantial debt accruing in the last five years, ultimately leading to his bankruptcy. Hewlett admitted professional misconduct. His name was removed from the role.
   • In Legal Services Commissioner v Cain[20] (2009) the legal practitioner had not filed on time tax returns for five years and a BAS statement for one quarter. He was convicted of six tax offences. He admitted professional misconduct. By the time the disciplinary case was heard, he had filed his outstanding returns and BAS and undertaken to execute a mortgage on his home to pay the outstanding tax of $70,000. He expressed remorse and agreed to mentoring and a psychological treatment plan. He received a reprimand.
   • Legal Services Commissioner v Moore[21] (2010) was the first of the Victorian decisions. Over 17 years, Mr Moore, a barrister, had not lodged tax returns, made provision for or paid income tax and had not lodged BAS or paid GST for almost seven years. The Tribunal said that normally such conduct would lead to a finding that the barrister was not a fit and proper person to practice, and that this would be likely to continue indefinitely. There were, however, mitigating factors. These included personal matters, and also, significantly, the fact that he had increased his earnings during bankruptcy to maximise the return to his creditors. He had also sought and obtained treatment for his gambling and alcohol addictions. VCAT found him guilty of professional misconduct under the 'not fit and proper' limb, s 4.4.3(1)(b). It reprimanded him and fined him the maximum possible amount of $50,000.
   • In Legal Services Commissioner v Long[22] (2011) a barrister had failed to lodge tax returns for 13 years. He had not paid income tax for that period. Also, he had not disclosed or paid GST for over six years. He pleaded guilty to professional misconduct under s 4.4.3(1)(b). A four month suspension was ordered. This was upheld upon review by a three member Tribunal panel chaired by the then President, Ross J, under s.4.4.21. The Tribunal panel said that normally a legal practitioner's failure to meet their taxation obligations would lead to the imposition of a substantial sanction, such as a three or four year suspension. But here there were powerful litigating factors, including delay in bringing proceedings and a mental health condition which reduced his culpability.
   • In Legal Services Commissioner v Stirling[23] (2012) a barrister had filed late tax returns over an eight year period. In 2006 a judgment for tax liabilities of $488,000 was obtained. He also misled the Bar Ethics Committee about his tax affairs. He was found to have lived a 'lavish lifestyle'. Mr Stirling pleaded guilty to professional misconduct under s 4.4.3(1)(b). He was suspended for three years. This case is on appeal to the Court of Appeal (on the question of the severity of penalty only).
   • In Legal Services Commissioner v Turner[24] (2012) a barrister failed to pay tax for a period of ten years. He pleaded guilty to professional misconduct under s 4.4.3(1)(b)). He was fined $5,000. Although bankrupted, he had recommenced to comply with his taxation obligations. In that case, extensive delay, remorse, a modest rather than lavish lifestyle and his 'disassociated state' were mitigating factors. The Tribunal's decision was overturned on an appeal to the Supreme Court brought by the LSC.[25] It was remitted back to the same Tribunal member, who reconsidered the matter in light of the Supreme Court's decision. [26] The Tribunal said that on the face of it, a disposition suspending Mr Turner's practising certificate was warranted. However, after considering the circumstances applicable to his particular case, it imposed the same penalty as before. This was on the basis that there had been an 'unacceptably long delay' in bringing the matter before the Tribunal, and further delay in bringing it before the Tribunal on the second occasion (over five and a half years elapsed after the practitioner reported his conduct before the matter was finally dealt with) that the practitioner had never contested the charges, that he had undoubtedly rehabilitated himself and was by the final hearing a fit and proper person to practise law.

The Supreme Court decision in Turner emphasised that theft from 'the Revenue' is just as serious as theft from individuals.[27] Emerton J said:

In this case, the Tribunal's disciplinary jurisdiction was invoked having regard to the need to protect the reputation of the legal profession and to maintain confidence in the justice system generally. The commission of taxation offences demonstrates an unfitness to be trusted in serious matters. There is an obligation to maintain public confidence that professional standards are being upheld, and with that the maintenance of the public's confidence in the mechanisms for supervising professional conduct. The Tribunal was obliged to exercise its jurisdiction to sanction the respondent for professional misconduct having regard to the seriousness of the conduct in question and the fact that general deterrence and denunciation are important to foster public confidence in the members of the profession upon whom the administration of justice depends.[28]

1. These cases have generally applied the principles set out in Cummins to the individual circumstances of each matter. They are consistent in finding that breaches of taxation obligations, especially over an extended period, are very serious matters which, in the absence of powerful countervailing mitigating factors, will lead to the conclusion that a practitioner is not a fit and proper person to practice. Even though none deal with such an extended period of non-compliance as Cummins (38 years) it is clear that those principles apply to much shorter periods. A number also found that such conduct constituted professional misconduct at common law.

Professional misconduct or unsatisfactory professional conduct?

1. In the present case, in contrast to each of the other recent Victorian cases, Mr Booth did not plead guilty to the disciplinary charge(s) brought by the LSC. Rather, he chose not to attend the hearing. The factual allegations against him were proved in his absence. All the Tribunal has is what was stated at the start of Mr Booth's later written submission on transitional issues. The first paragraph of this submission said:

The respondent admits engaging in unsatisfactory professional conduct in failing to obtain [sic] the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. Such conduct fell within the definition of "unsatisfactory conduct" under the Legal Practice Act 1996 and the correlative concept in the Legal Profession Act 2004, namely "unsatisfactory professional conduct".

1. His submission (set out in full below) was then directed towards the penalties that are available for such conduct, applying the transitional provisions, and giving due weight to the presumption against retrospectivity. The effect of his submission was that his conduct should be regarded as having occurred under the 1996 Act, and that the maximum penalty should be that applicable to 'unsatisfactory conduct' under the 1996 Act, namely a $1,000.00 fine. I deal with the contentions about transitional provisions and the presumption against retrospectivity below.
2. But first I consider the question of whether Mr Booth's conduct should be characterised as professional misconduct, rather than unsatisfactory professional conduct.

1. The rationale set out in Cummins[29] and other cases referred to above applies here: Mr Booth has failed to carry out his civic responsibilities by not taking these steps which all citizens are obliged to take to have their tax liability assessed, and to pay their tax, as their contribution to the provision of services by government. He has instead left it to other citizens to bear the burden of paying for the services which the government provides. As the decision in Cummins stated, the fact that a solicitor has not carried out these obligations is contrary to the public interest because it undermines the confidence and trust which clients, colleagues, the judiciary and the public must have in practitioners, in order for the legal system to operate effectively.
2. Here, because Mr Booth chose not to attend the hearing, obviously he did not provide any information to the Tribunal about any matter which might militate against the conclusion that his conduct would justify a finding that he was not a fit and proper person to engage in legal practice under section 4.4.3(1)(b) of the 2004 Act (which is the basis of Charge 1). [30]
3. This rationale applies equally to the criterion relating to the very similar concept of 'good character' in the definition of 'misconduct' in the 1996 Act. In the 1996 Act the term 'misconduct' had two limbs. Limb (a) was an inclusive definition relating to 'misconduct by a legal practitioner...in the course of engaging in legal practice'. This included the concept of professional misconduct at common law.
4. Limb (b) was:

Conduct by a legal practitioner or firm that is unconnected with legal practice but that would justify a finding that the practitioner or firm is not of good character or is otherwise unsuited to engage in legal practice.

1. The authorities referred to above apply to such conduct in the same way as they apply to conduct under s.4.4.3(1)(b) of the 2004 Act justifying a finding of not 'fit and proper'.

1. It follows from what I have said above that I do not accept Mr Booth's submission that his conduct comprised only unsatisfactory professional conduct, rather than professional misconduct.
2. The 2004 Act does not provide a clear line between the concepts of professional misconduct, and unsatisfactory professional conduct. It is clear the former relates to more serious[31] breaches of professional responsibilities. Beyond that, it is left to the Tribunal's assessment of the individual circumstances of each case. In Legal Services Commissioner v Pollard[32], the Tribunal said that the distinction under the 1996 Act, whereby misconduct needed to be 'wilful or reckless' provided a 'useful insight' into the question. I note, however, that distinction has been removed from the 2004 Act.
3. Nevertheless, I have no doubt that Mr Booth's conduct here is in the more serious category. He has neglected his taxation obligations for a long period. It can hardly be said his neglect to comply was inadvertent. In the vast majority of the Australian decisions referred to above about non-compliance with taxation obligations, the practitioner's conduct was regarded as being more serious than the lesser disciplinary offence of unsatisfactory professional conduct (or its equivalent). A judgement in the sum of $446, 636.77 was entered against him in relation to taxation and like obligations on 20 May 2010. The conduct continued over a 19 year period. Whilst the LSC's submission stated that in contrast to Stirling, Mr Booth had not earned a high income, no mitigating factors were put on Mr Booth's behalf. I find that Mr Booth's conduct constitutes professional misconduct, rather than merely unsatisfactory professional conduct. Also, to the extent that it is made relevant by the transitional provisions, I find Mr Booth's conduct constitutes 'misconduct' (under limb (b) of the definition in the 1996 Act) rather an 'unsatisfactory conduct' under the 1996 Act.

1. I now turn to the question of the operation of the transitional provisions in Schedule 2 to the 2004 Act. These are relevant to the question which arose during the hearing as to how conduct which occurred prior to the coming into operation of the 2004 Act (on 12 December 2005) is to be dealt with under charges lodged in 2013.
2. This arises because the conduct commenced in 1991. That is, it stretched across a period when three successive Acts applied:
   • The Legal Profession Practice Act 1958 (1958 Act) which applied from 1958 to 31 December 1996.
   • The 1996 Act which applied from 1 January 1997 to 11 December 2005
   • The 2004 Act which has applied from 12 December 2005 to the present
3. Mr Booth's conduct the subject of this proceeding commenced when he failed to lodge his 1989-90 tax return. Presumably, this failure became a non-compliance in late 1990 or early 1991. I will assume it commenced in 1991. The proofs provided by the LSC indicated that his conduct continued until at least 20 May 2010, when he consented to an order in the County Court that he pay the Deputy Commissioner of Taxation the sum of $446,636.77 plus costs. As there is no evidence about what occurred after that, I have treated the conduct as continuing until that date - 20 May 2010.
4. Although he did not appear at the hearing, Mr Booth did provide written submissions after the hearing on the question of how the transitional provisions operate here. His submissions, as well as those of the LSC on the transitional issues are dealt with below.

(1) Except where the contrary intention appears, this Schedule does not affect or take away from the Interpretation of Legislation Act 1984.

(2) If a provision of the old Act continues to apply by force of this Schedule, the following provisions also continue to apply in relation to the provision -

(a) any other provisions of the old Act necessary to give effect to that continued provision; and

(b) any regulation made under the old Act for the purposes of that continued provision.

The regulations may contain provisions of a savings and transitional nature consequent on the repeal of the old Act.[33]

1. Part 6 of Schedule 2 provides transitional arrangements for 'Disputes and Discipline'. Clauses 6.1 to 6.5 set out arrangements to apply in relation to current disputes as at the commencement date (12 December 2005), plus current complaints, current investigations and reviews outstanding under the 1996 Act- all as at the commencement day. The general effect of these clauses is that these current matters are continued under the 1996 Act (the 'old Act') as if it had not been repealed, and the LSC steps into the shoes of the Legal Ombudsman, a relevant RPA[34] or the Old Legal Practice Board, and VCAT steps into the shoes of the old Legal Professional Tribunal (LPT).
2. Schedule 2 contains the following in relation to conduct under the 1996 Act in relation to which a complaint had not been made or an investigation had not commenced by 12 December 2005:

6.6 Complaints and investigations under this Act of prior conduct

(1) A complaint may be made under Chapter 4 of this Act on or after the commencement day in relation to conduct of a law practice or an Australian legal practitioner occurring before that day, so long as a complaint, or a request for dispute resolution, had not been made under Part 5 of the old Act in relation to the same conduct.

(2) An investigation may be commenced under Chapter 4 of this Act on or after the commencement day in relation to conduct of an Australian legal practitioner occurring before that day, so long as the same conduct had not been investigated before that day under Division 3 of Part 5 of the old Act.

(1) On the commencement day, the Legal Profession Tribunal is abolished and its members go out of office as members.

(2) On the commencement day, or as soon as practicable afterwards, all records of the Legal Profession Tribunal are to be given to the President of VCAT.

(3) A reference in any Act (other than this Act), subordinate instrument, agreement, deed or other document to the Legal Profession Tribunal must be construed as a reference to VCAT so far as the reference relates to any period on or after the commencement day and if not inconsistent with the subject-matter.

1. Clauses 8.3 and 8.4 set out the process for matters pending in the old LPT, and matters which were part heard before that Tribunal. In broad terms, these were taken over by VCAT and determined as if it were the LPT, according to the provisions of the 1996 Act.
2. Finally, clause 8.5 provides:

8.5 VCAT may make orders of a transitional nature

(1) If any difficulty arises in a proceeding because of the operation of this Schedule, VCAT may make any order it considers appropriate to resolve the difficulty.

(2) VCAT may make such an order on the application of any party to the proceeding or on its own initiative.

1. The LSC's submission was that the transitional provisions do allow charges for pre 12 December 2005 conduct to be brought under the 2004 Act, and to that extent, they are retrospective.
2. The LSC's submissions also addressed the implications of the decision in Legal Services Commission v Kiatos[35] (Kiatos No 1). This is dealt with below.
3. The LSC's submissions on the effect of Schedule 2 were as follows:
   • There is a presumption at common law that legislation will not have retrospective effect. But this is not absolute and can be rebutted.[36]
   • A similar presumption - and the ability to overcome it - arises from s.14 of the Interpretation of Legislation Act 1984 which states that the repeal of an Act 'shall not, unless the contrary intention expressly appears' amongst other things, 'affect any ... liability acquired, approved or incurred under that Act' or 'affect any investigation, legal proceeding or remedy in respect of any such ... liability'.
   • Part 5 of the 1996 Act set up a scheme for dealing with disciplinary matters for legal practitioners. For serious matters, legal practitioners could be charged with 'misconduct' (which term was defined in s137 of the 1996 Act). For less serious matters a legal practitioner could be charged with 'unsatisfactory conduct'. (Again this term was defined in s137 of the 1996 Act.) Charges were brought in the LPT.
   • The 2004 Act repealed the 1996 Act. Transitional provisions were set out in Schedule 2 of the 2004 Act.
   • The transitional provisions provided directions as to what would occur in relation to matters which had reached various stages in the complaint, hearing and investigation process, as at the commencement date, 12 December 2005. These included the provisions referred to above, which contained comprehensive prescriptions as to what was to occur in relation to complaints received but not yet dealt with, and investigations and reviews which were still underway. It also prescribed how matters which were pending or part heard before the LPT were to be dealt with.
   • In relation to pre-12 December 2005 conduct when no complaint had been made until after that date, or no investigation was commenced before that date, clause 6.6 applies. Clause 6.6(1) has the effect that a complaint about pre-12 December 2005 conduct may be made after that date, as long as no complaint or request for a dispute resolution had been made before that date. Clause 6.6(2) has the effect that an investigation may be commenced after 12 December 2005 in relation to conduct before that date. Again, this was subject only to the proviso that the same conduct has not already been investigated under the 1996 Act.
   • Clause 6.6(2) applies to Mr Booth's taxation matters. They were the subject of an own motion investigation initiated by the LSC on or about 25 January 2010.
   • Clause 6.6(2) provides for an investigation to be commenced under Chapter 4 of the 2004 Act (i.e. not under the 1996 Act). The 2004 Act only enables investigations to occur where the LSC has reason to believe that the conduct may amount to 'unsatisfactory professional conduct' or 'professional misconduct'. Those terms are defined in the 2004 Act. They are different to the terms 'unsatisfactory conduct' and 'misconduct' which were utilised in the 1996 Act.
   • Accordingly, there is no power in the 2004 Act to investigate 'unsatisfactory conduct' or 'misconduct'.
   • After completion of an investigation under Chapter 4 of the 2004 Act, the LSC must 'deal with the matter in accordance with' s.4.4.13 of the 2004 Act. Again, this sets out processes for dealing with allegations of 'professional misconduct' and 'unsatisfactory professional conduct'. There is no power to deal with 'misconduct' and 'unsatisfactory conduct'. There is no power to bring charges at VCAT for 'misconduct' or 'unsatisfactory conduct'.
   • Further, in dealing with applications alleging 'professional misconduct' or 'unsatisfactory professional conduct', VCAT does not have powers to deal with the former concepts under the 1996 Act.
4. The effect of the LSC's submission is that when clause 6.6(2) states that an investigation of pre-12 December 2005 conduct may be commenced under Chapter 4 of the 2004 Act, it means that the new concepts of 'professional misconduct' and 'unsatisfactory professional conduct' are to be applied to that conduct, even though they did not exist at the time the conduct was allegedly engaged in by the legal practitioner. Further, the LSC contends that such matters then proceed all the way through the process under the 2004 Act: investigation, charging, conduct of a proceeding at VCAT, and, if appropriate, the imposition of one or more of the penalties provided for in s 4.4.17, s 4.4.19 or s4.4.20 of the 2004 Act. That is, clause 6.6 has retrospective effect.

1. Mr Booth's submission addressed the question of the penalty which should be available for unsatisfactory professional conduct (or 'unsatisfactory conduct' under the 1996 Act) where that conduct occurred before 12 December 2005 (in part) but the charges were brought under the new Act.
2. I have found that Mr Booth's conduct constitutes professional misconduct, rather than unsatisfactory professional conduct. Nevertheless, Mr Booth's submissions could be seen to address the question of the application of the transitional provisions more generally. His submission in full, was as follows:
   1. The respondent admits engaging in unsatisfactory professional conduct in failing to obtain [sic] the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. Such conduct fell within the definition of "unsatisfactory conduct" under the Legal Practices Act 1996 and the correlative concept in the Legal Profession Act 2004, namely "unsatisfactory professional conduct".
   2. The 1996 Act was repealed by the 2004 Act effective 12 December 2005. The admitted unsatisfactory conduct occurred before that date.
   3. The maximum fine which may be imposed in respect of each charge made out is $1,000: s.159(1)(b) 1996 Act. For the reasons which follow, the 1996 Act continues to regulate the maximum penalties which may be imposed for unsatisfactory conduct while it was in force.
   4. The 2004 Act should not he interpreted as allowing VCAT to impose a penalty greater than what was prescribed at the time of the relevant conduct: Interpretation of Legislation Act, 1984 s. 14(2); Pearce & Geddes Statutory Interpretation in Australia (2006) at [9.18]; Bakker v Stewart [1980] VicRp 2; [1980] VR 17.
   5. Do the transitional provisions displace this common law presumption against retrospectivity? The answer is that they do not. They recognize the distinction in the law relating to the presumption against retrospectivity between procedural and substantive changes to the laws it being principally substantive changes to which the presumption against retrospectivity applies. Chief Justice Dixon said in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267:

The general rule of the common law is that a statute changing the law ought not unless the intention appears with reasonable certainty to be understood as applying facts or events that have already occurred in such a way to confer or impose or otherwise affect rights or liabilities fixed by reference to the past events the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to he secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege notwithstanding that before the change in the law was made the accrual or establishment of the rights liabilities immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.

1. The relevant transitional provisions are in parts 1 and 6 of Schedule 2 of the 2004 Act. Clause 1.2(1) confirms continued operation of the Interpretation of Legislation Act 1984 absent contrary indication. Clause 6.6(l) allows for complaints to be made under the 2004 Act in respect of conduct prior to its commencement. Sub-clause (2) allows for investigation of such complaints under the 2004 Act. Those are procedural matters. No transitional provision says that the penalties for unsatisfactory professional conduct should he substituted retrospectively for the 1996 Act's penalties for unsatisfactory conduct.
2. It does not follow from sub-clauses (1) and (2) that parliament should be taken to have intended that the penalty for unsatisfactory conduct be increased tenfold (compare the $10,000 maximum fine in s.159(1)(b) of the 1996 Act and the $10,000 maximum fine in s.4.4.19(b) of the 2004 Act). Nor does it follow that Parliament intended that practitioners should be in jeopardy of:

(a) being referred to the Supreme Court for striking off the rolls (a course available in respect of post-2004 Act unsatisfactory professional conduct: ss.4.4.16 and 4.4.17(a)); or -

(b) having their practising certificate suspended or cancelled for pre-2004 Act conduct (see ss. 4.4.16 and 4.4.17(b)).

1. Indeed, the absence of a transitional provision displacing the substantive law's ongoing application to pre-2004 Act conduct is significant in the context of such detailed transitional provisions.
2. As will be seen, I accept the general thrust of these submissions by Mr Booth insofar as they deal with the principles relating to retrospectivity.

Conduct which occurred during the currency of the 1996 Act

1. The precise way in which clause 6.6 operates is not immediately clear. I was not referred to any authority on it. I am aware of one case in which the issue arose, but the Tribunal was not required to resolve the question.[37]
2. On the one hand, the presumption against retrospectivity immediately looms large in any consideration of the provision. At first blush, when considering Mr Booth's conduct in not complying with his taxation obligations during the period before 12 December 2005, it seems incongruous to countenance him being able to be found guilty of a disciplinary 'offence' which was not on the statute books at that time. Also, it might be said that clause 6.6 could have been drafted so as to make it explicit that not only do the 2004 Act processes for investigation apply, but that all the processes which follow on from that apply as well (namely the laying of charges, VCAT hearing, findings and penalty, where appropriate).
3. On the other hand, the natural meaning of clause 6.6, and Schedule 2 as a whole is that the post-2004 regime is to apply to such pre-2004 conduct by legal practitioners. Schedule 2 sets out reasonably extensively those situations where the 1996 Act procedures and provisions are to apply, as described above. The clear implication is that in relation to circumstances not dealt with in these various clauses of Schedule 2, clause 6.6 is able to have its natural meaning, namely, that after 12 December 2005, complaints may be made and investigations may be commenced under Chapter 4 of the 2004 Act in relation to that earlier conduct. And that this carries with it all the processes which follow on from an investigation under Chapter 4 of the 2004 Act, including bringing charges in VCAT, conducting a hearing, and the determination of findings and, if appropriate, penalties - all in accordance with the provisions of Chapter 4 of the 2004 Act.
4. If that were not the case, it might be suggested there would be a gap, such that the clause would make no provision for dealing with pre 12 December 2005 conduct which did not come to light until after that date. In my view, it can be regarded as clear that Parliament did not intend that such conduct would simply not be able to be dealt with. That would certainly be contrary to the overriding goal of protection of the public. Alternatively, it might be necessary for the LSC to go through the somewhat artificial process of issuing separate charges under the 1996 Act for 1 January 1997 to 11 December 2005 conduct, and under the 1958 Act for conduct from 1989 to 31 December 1996. I say 'artificial', because the LSC did not exist at those times, and it has not in terms been given powers to bring charges under those two preceding Acts.
5. Most commonly, the position is that a professional (or other person liable to a penalty under legislation) would be subject to the disciplinary (or penalty) provisions as in force at the time of his or her conduct. Or at least that by some means or other, the person would not be in jeopardy of being subject to disciplinary proceedings for matters which could not have been dealt with under the legislation in force at the time. Nor that they would be in jeopardy of a more severe penalty.
6. For example, in relation to health practitioners, regulation 30 of the Health Practitioner National Law Regulation 2010 has the effect that where a complaint is made under the relevant new law about conduct which occurred while the practitioner was registered under the previous relevant law, proceedings may be taken under the new law. But sub reg 30(3) provides:

(3) However, subclause (2) applies only to the extent -

(a) a notification about the registered health practitioner's or student's behaviour could have been made under the corresponding prior Act; and

(b) proceedings of that type could have been taken under the corresponding prior Act.

1. The passage from Maxwell v Murphy quoted by Mr Booth above states the general rule of interpretation against retrospective interference with substantive rights and liabilities. However, this does not apply to changes made to _'_practice and procedure' for the enforcement of those rights and liabilities.
2. This is reinforced and supplemented by s.14 of the Interpretation of Legislation Act 1984 which generally preserves rights and liabilities which have already accrued at the point where legislation is altered.
3. In Attorney-General of New South Wales v World Best Holdings[38] Spigelman CJ said that in approaching the task of interpreting legislation, statutory provisions:

will only be given retrospective operation to the extent necessitated by the words of the statute, considered in their full context and in accordance with the legislative purpose, but no greater extent (see Reid v Reid (1886) 31 ChD 402 at 408-9; Louri v Renard [1882] Ch 421).[39]

1. The main concern about adopting a retrospective operation will always be whether potential unfairness or injustice to the practitioner might result. In World Best Holdings Spigelman CJ considered a number of House of Lords decisions. He expressed agreement with the view of Stoughton LJ in Secretary of State for Social Security v Tunnicliffe[40] as follows:

His Lordship emphasised that matters of this character were to be determined by the application of a presumption that the legislature did not intend to act unjustly or unfairly and went on to reject any formulaic approach to the determination of the intention of Parliament with respect to the retrospectivity of a particular legislative scheme.[41]

1. Spigelman CJ went on to state that a court is required

to determine the scope and degree of the unfairness or injustice that is applicable in the particular case. The greater the unfairness or injustice, the less likely it is that Parliament intended the Act to apply.[42]

1. In accordance with the approach described in the cases of Reid v Reid and Louri v Renard referred to by Spigelman CJ in World Best Holdings, when considering Mr Booth's conduct during the currency of the 1996 Act, it is apparent that the rule against retrospectivity would not be offended by an interpretation of clause 6.6 which:
   • Only renders Mr Booth liable for a disciplinary finding to be made against him for conduct which could have been the subject of a finding under the legislation previously applicable, and
   • Does not expose him to any higher penalty than he would have been exposed to under the legislation previously applicable.
2. In fact, for the reasons explained below, the outcome sought by the LSC in relation to Mr Booth's conduct during the currency of the 1996 Act goes no further than this.
3. In bringing Charge 1 against Mr Booth, in relation to his conduct during the currency of the 1996 Act, the LSC is only bringing an allegation relating to conduct which could have been the subject of a charge under the 1996 Act, and nothing more. The concept of 'not fit and proper' under the definition of 'professional misconduct' in the 2004 Act is extremely similar to, and in relation to the present facts overlaps, with the concept of 'not of good character of otherwise unsuited' in the 1996 Act definition of 'misconduct'.
4. Secondly, the penalty which the LSC has sought (that Mr Booth be prevented from obtaining a practising certificate for a further period[43] of one to three years) is one which was equally available under both the 2004 Act (for professional misconduct)[44] and the 1996 Act (for the equivalent disciplinary offence of misconduct)[45]. So Mr Booth would not be in jeopardy of any higher penalty. Neither Act imposes a maximum period which is able to be ordered.
5. This analysis suggests that the retrospective aspect of Clause 6.6 relied upon by the LSC in the circumstances of this case can be said to be confined to procedural matters, rather than substantive matters.
6. Had I been considering 'unsatisfactory professional conduct' rather than professional misconduct, it might have been necessary to carry out an evaluation of the extent to which such a finding would cause unfairness or injustice to Mr Booth. In terms of the consideration of potential unfairness or injustice, Mr Booth's submission focussed on the potential for a higher penalty under the 2004 Act than was available under the 1996 Act. Had I been considering that disciplinary finding, I would have had to consider whether any 'maximum' penalty which was provided for particular conduct under the 1996 Act could not be exceeded when a matter is dealt with under clause 6.6, in accordance with his submission.
7. Here, however, I have found that Mr Booth's conduct constitutes professional misconduct/misconduct, rather than the lesser offences. Thus, the scenario referred to by Mr Booth in his submission of a more serious penalty possibly being given than could be applied under the 1996 Act, does not arise.[46]

Conduct which occurred during the currency of the 1958 Act

1. Unlike the definitions of 'misconduct' under the 1996 Act and 'professional misconduct' under the 2004 Act, the definition of 'misconduct' in the 1958 Act did not include a limb relating to 'good character' or 'fit and proper'. 'Misconduct' under the 1958 Act was relevantly defined to mean 'misconduct by a solicitor in a professional capacity'.[47] Thus Charge 1 does not have direct application to the 1990 - 1996 conduct.

1. The LSC's submissions also address the question of the effect of the decision in Legal Services Commission v Kiatos (Kiatos No. 1).[48] In that case, on the charges brought, the Tribunal found that the only basis on which the practitioner could be found guilty of professional misconduct was one which required his conduct to have occurred in the course of engaging in legal practice. There is no such limitation here. The LSC has indicated that to the extent that the definition of 'misconduct' in the 1996 Act needs to be referred to, its case under Charge 1 relies on the second limb of the definition of that term. As stated in paragraph 40 above, limb (b) was:

Conduct by a legal practitioner or firm that is unconnected with legal practice but that would justify a finding that the practitioner or firm is not of good character or is otherwise unsuited to engage in legal practice.

1. Accordingly, here, there would be no such impediment as there was in Kiatos No.1 to a finding of 'misconduct' against the practitioner under the 1996 Act.
2. Kiatos No 1 was the subject of a rehearing under s 4.4.21 of the 2004 Act before the President and Member Page of VCAT. Kiatos No.2[49] was an interlocutory decision on the rehearing. Kiatos No.3[50] was the review decision. By that stage, the factual substratum had changed from that applicable in Kiatos No.1. The respondent by then had accepted that his conduct had occurred in the course of engaging in his legal practice. Also, the charges were amended (see below). The Kiatos No.3 decision by the President and Mr Page, dated 19 July 2013, in dealing with conduct which occurred in February 2002, said:

In the circumstances there is jurisdiction to deal with the Commissioner's complaint under the [2004 Act] rather than under the 1996 Act. This is convenient and what we propose to do[51].

1. Although the amended charges were brought alleging not just professional misconduct under the 2004 Act, but now also, alternatively, misconduct under the 1996 Act, the decision appears to be on the basis that the applicable offence was professional misconduct under the 2004 Act, even though the conduct occurred in 2002.[52]
2. Further, the other Victorian decisions relating to breaches of taxation obligations by practitioners (namely Moore, Long, Stirling and Turner) all appear to relate to conduct stretching back to well before 12 December 2005. These all proceeded on the basis that the operative provision is section 3.4.3(1)(b), namely, professional misconduct (justifying a finding that the practitioner was not a fit and proper person to engage in legal practice) under the 2004 Act.

Where consideration is limited to Mr Booth's conduct after 12 December 2005

1. The LSC's submission also covered the scenario where consideration was limited to Mr Booth's conduct after December 2005 (that is, if only conduct which occurred after the 2004 Act came into operation is considered). During the period 30 June 2005 to 20 May 2010, Mr Booth continued not to comply with his tax obligations. As described above, he did provide tax returns during 2007 for the years ending 30 June 2001-5. However, he had still not paid the tax owing for those years by 20 May 2010.
2. Mr Over submitted:

In this case part of the respondent's impugned conduct occurred on and after 12 December 2005 ... in fact, the more serious parts of his impugned conduct had taken place after 12 December 2005. First because his failures became more serious the longer they went on. Secondly because, after 12 December 2005 the respondent's failure occurred in the context of him having been charged and found guilty of tax offences, and him having breached a court order to lodge his income tax returns by a specified time ...

Even if consideration was had only to the part of the respondent's impugned conduct that took place on and after 12 December 2005, this conduct constitutes professional misconduct as charged on the basis of the authority set out in the applicant's initial submissions.[53]

1. I accept these submissions. Whilst Mr Booth's omissions to comply with his tax obligations first occurred during the years prior to December 2005 it is true that these obligations were ongoing, and his failures to comply did become more serious as time went on.
2. Thus, even if consideration is limited to Mr Booth's conduct after 12 December 2005, I would still conclude that he is guilty of professional misconduct under s 4.4.3(1)(b).

1. The upshot is that the LSC has proved that Mr Booth engaged in conduct justifying a finding that he was not a fit and proper person to engage in legal practice. But this finding only applies directly to his conduct during the currency of the 1996 and 2004 Acts (that is, his conduct from 1997 to 2010). His conduct in not complying with his tax obligations between 1990 and 1996 is not caught by Charge 1 directly. However, I accept the LSC's submission that his conduct in the later years, in continuing to disregard his tax obligations relating to that early 1990 - 1996 period is caught by Charge 1.

1. Mr Booth is found guilty of Charge 1.
2. As discussed at the hearing, I will now give the parties an opportunity to make submissions on the sanction(s) which should be imposed in the light of this decision. I understand the decision in Stirling is subject to appeal (on the question of severity of penalty only) and that it is due to be heard this month by the Court of Appeal. However, my understanding of the circumstances of the two cases is such that it does not appear that there is a compelling reason for me to delay the finalisation of this matter any further, by deferring a decision on penalty pending the Court of Appeal's decision in Stirling being handed down.

[1] On 13 November 2012 an order was made in a separate disciplinary proceeding that Mr Booth's practising certificate be cancelled, and he be disqualified from being granted a local practising certificate for one year- Legal Services Commissioner v Booth [2012] VCAT 1730.

[2] The LSC's Application for Orders in its original form included charges in relation to these matters, however, the final version of 5 May 2013 was whittled down to two charges only, relating only to matters concerning income tax.

[3] [2012] VCAT 347.

[4] [2001] NSWCA 284; (2001) 52 NSWLR 279, a joint decision of Spigelman J, Mason P and Handley JA.

[7] Legal Services Commission v Stirling [2012] VCAT 347 at [99] - [100].

[8] [2001] NSWCA 284; (2001) 52 NSWLR 279 at [56].

[9] [2001] NSWCA 284; (2001) 52 NSW LR 279, at [62]-[63].

[10] This summary draws on the submissions by Mr Over, for the LSC.

[11] [1999] NSWCA 404; 1999 217 ALR 553.

[13] (2001) 48 ATR 562; [2001] NSWCA 28;5.

[14] (2003) 54 ATR 25; [2003] NSWCA 261.

[15] [2003] NSWCA 228; (2003) 54 ATR 22.

[16] (2006) 46 SR (WA) 39; [2006] WASAT 309.

[17] [2007] NSWCA 227; (2007) 69 ATR 402.

[21] [2010] VCAT 745.

[22] [2011] VCAT 1164 and [2012] VCAT 193.

[23] [2012] VCAT 347.

[24] [2012] VCAT 373.

[25] Legal Services Commissioner v Turner [2012] VSC 394.

[26] Legal Services Commissioner v Turner [2013] VCAT 390.

[27] [2012] VSC 394 [15]-[28].

[29] [2001] NSWCA 284; (2001) 52 NSW LR 279.

[30] Under s 4.4.3(2), the fact that Mr Booth has been convicted of failing to comply with orders requiring him to lodge tax returns is an additional factor which may be taken into account. This arises because under s 4.4.3(2), regard may be had to the suitability matters relevant to an application for the grant of a practising certificate under section 1.2.6 of the 2004 Act. These include whether the person has been found guilty of an offence (s 1.2.6(1)(c)).

[31] Legal Services Commissioner v Spaulding [2008] VCAT 318.

[32] [2008] VCAT 455.

[33] The current version of the Legal Profession Regulations 2005 does not include any relevant transitional regulations under this provision.

[34] RPA was a 'recognised professional association' under s 299 of the 1996 Act, namely, the Victorian Lawyers RPA Limited and the Victorian Bar.

[35] [2013] VCAT 529 per Member Butcher.

[36] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 per Dixon CJ.

[37] Legal Services Commissioner v Schulsinger [2010] VCAT 965 (determination of the charges brought against Mr Schulsinger) and Legal Services Commissioner v Schulsinger [2010] VCAT 1497 (determination of penalty).

[38] [2005] NSWCA 261 at [43] and following; [2005] NSWCA 261; (2005) 63 NSWLR 557 at 570 and following; [2005] NSWCA 261; 223 ALR 346 at 357 and following.

[40] [1991] 2 All ER 712 at 724.

[41] (2005) 63 NSWLR 5576 at 570 [57].

[43] As noted above, Mr Booth is presently disqualified from being granted a local practising certificate until 12 November 2013- Legal Services Commissioner v Booth [2012] VCAT 1730.

[46] In any event, Mr Booth's submission can only apply to the penalty for the conduct which occurred during the currency of the 1996 Act. And of course, the LSC's proposed penalty of cancellation for one to three years is a proposed penalty for conduct which occurred during periods other than just whilst the 1996 Act was in effect.

[48] Legal Services Commissioner v Kiatos [2012] VCAT 1695.

[49] Legal Services Commissioner v Kiatos [2013] VCAT 529.

[50] Legal Services Commissioner v Kiatos [2013] VCAT 1152.

[53] LSC's Submissions on Transitional Provisions, paragraph 11.