1. This is a record of the oral reasons given by the Tribunal on 18 April 2013.
2. This is an application under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("the VCAT Act") by the respondent. Section 75(1) of the VCAT Act provides that:

75 Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

1. The respondent submits that the application for rehearing is misconceived and lacking in substance, and it is on these grounds that the respondent seeks summary dismissal of the proceeding.
2. The parties rely on factual and legal submissions which were fully embodied in their written submissions in support of the application and in reply. The jurisdiction of the Tribunal on the rehearing is provided by

ss 4.4.21 and 4.4.23 of the Legal Profession Act 2004 (Vic). Section 4.4.23(1) provides that:

(1) For the purposes of a rehearing, the Tribunal has all the functions and powers that the Tribunal had with respect to the matter at first instance.

1. Section 4.4.23(2) provides for the orders that a Tribunal may make in a manner not dissimilar to that found in s 51(2) of the VCAT Act.
2. The legislative scheme surrounding the grant and exercise of jurisdiction by VCAT typically involves an enabling enactment which may confer jurisdiction on VCAT in relatively brief terms, and the VCAT Act which sets out the procedures to be followed when the jurisdiction is exercised.
3. Section 44 of the VCAT Act provides that when exercising its original jurisdiction, the Tribunal has the functions conferred on it by or under the enabling enactment as well as any functions conferred on it by or under this Act, the regulations and the rules.
4. The term "function" is very widely defined in s 3 of the VCAT Act to include jurisdiction, power, duty and authority.
5. Part 4 of the VCAT Act is entitled "The Tribunal - General Procedure" and sets out the procedure which applies to proceedings and hearings. Division 7 of Part 4 applies to hearings.
6. Section 97 provides that the Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
7. Section 98(1)(a) provides that the Tribunal is bound by the rules of natural justice. Section 98(1)(b) provides that the Tribunal is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules practices or procedures. Section 98(1)(d) provides that the Tribunal must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and the proper consideration of the matters before it permit. Section 98(3) provides that subject to the VCAT Act, the regulations and the rules, the Tribunal may regulate its own procedure. Section 102 governs the conduct of hearings by the Tribunal.
8. The Tribunal must allow a party a reasonable opportunity to call or give evidence, to examine, cross-examine or reexamine witnesses and to make submissions to the Tribunal. In Legal Services Commissioner v Long, Justice Ross P permitted a subsequent psychological report to be admitted into evidence at a rehearing.[1]
9. It follows from these provisions that the parties are to be allowed a reasonable opportunity at the rehearing to call or give evidence to examine, cross-examine or reexamine witnesses and to make submissions to the Tribunal. This section applies to both hearings and rehearings at the Tribunal.
10. In the course of argument Mr Woinarski QC with whom Mr Snow appeared for the applicant, foreshadowed that the applicant might wish to call additional evidence to that before the Tribunal on the last occasion.
11. Mr Warne of counsel, who appeared for the respondent, made a number of legal and evidentiary submissions. He submitted that the evidence before the Tribunal did not substantiate the charges. He submitted that there were problems concerning the charges because the charged conduct pre-dated the commencement of the Legal Profession Act 2004 (Vic). He made submissions that the position under the Legal Practice Act 1996 (Vic) was more constrained than under the current Act. He made submissions as to the scope of the concept of professional misconduct at common law, submitting that it did not include personal misconduct by a practitioner where that conduct did not occur in connection with legal practice.
12. On the other hand, Mr Woinarski QC contended that the charges were soundly drawn. He relied on Schedule 2 of the Legal Profession Act 2004 (Vic) which contains transitional provisions. Clause 6.6.1 provides that 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. He said that there had been no complaint or request for dispute resolution under Part 5 of the old Act in relation to the same conduct. He submitted that misconduct at common law did include personal misconduct not associated with the legal practice where that conduct would reasonably be regarded as disgraceful and dishonourable by professional colleagues of good repute and competency.

1. Counsel for both sides referred to the decision of the High Court of Australia in A Solicitor v Council of the Law Society of NSW and in particular [20].[2] In Prothonotary of the Supreme Court of NSW v Livanes,[3] McColl JA (with whom Campbell and Meagher JJA agreed) referred to A Solicitor v Council of the Law Society of NSW and to the earlier decision of the Prothonotary of the Supreme Court of NSW v Kearns.[4] Section 497(1) of the Legal Profession Act 2004 (NSW) is in similar terms to s 4.4.4(b) of the Legal Profession Act 2004 (Vic), and was described by the Court as confirming the common law position as explained in A Solicitor and in the well-known case of Ziems v Prothonotary of the Supreme Court of NSW.[5] McColl JA expressed the conclusion that the circumstances of the opponent's convictions permitted the court to declare that his conduct, albeit undertaken in relation to his personal affairs, was professional misconduct.[6]
2. From the submissions made by the parties in this case it is apparent that there are serious issues of fact and law to be decided at the rehearing. It is not appropriate that we should express any concluded view about any of them, lest we pre-judge the issues to be the subject of evidence and submissions at the rehearing.
3. To succeed on an application under s 75 of the VACT Act, the respondent must show that the application made in these proceedings is undoubtedly hopeless, as to which see the decision of Kaye J in Forrester v AIMS Corp,[7] following the decision of the Court of Appeal in State Electricity Commission of Victoria v Rabel,[8] or alternatively as counsel for the respondent put it, that there is no real prospect of success, as to which see Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd,[9] and s 63 of the Civil Procedure Act 2010 (Vic).
4. We are not satisfied that either test has been demonstrated by the respondent in this application for summary dismissal. Simply put there are controversial issues of fact and law to be resolved in the determination of this proceeding.
5. There will be an order that the application under s 75 of the VCAT Act for summary dismissal of the proceeding be dismissed. We will hear any application as to costs, and we note that in accordance with s 107(1) of the VCAT Act questions of law in this application have been decided by the President.
6. (Costs discussion ensued)
7. We have given consideration to the exercise of our discretion as to costs and the circumstances that counsel have described in their submissions.
8. The order that we will make is to reserve the Legal Service Commissioner's costs of the application under s 75 of the VCAT Act.
9. (Directions were subsequently given by the Tribunal)

[1] [2012] VCAT 193 [19]-[21].

[2] [2004] HCA 1; (2004) 216 CLR 253 [20].

[3] [2012] NSWCA 325 [25].

[4] [2011] NSWCA 394 [8] (Sackville AJA, with whom Campbell and Young JJA agreed).

[5] [1957] HCA 46; (1957) 97 CLR 279.

[6] Prothonotary of the Supreme Court of NSW v Livanes [2012] NSWCA 325 [44].

[7] [2004] VSC 506; (2004) 22 VAR 97.

[8] [1998] 1 VR 102.

[9] [2011] VSC 222 [18] (Dixon J).