Legal Services Commissioner v Moore

Legal Services Commissioner v Moore - [2010] VCAT 742 - VCAT 2010 case summary — Zoe

[19]

Mr Moore has a history of alcohol and gambling addiction throughout the period in which he did not meet his tax obligations. Reports from Mr Geoffrey Cumins, Consulting Clinical and Forensic Psychologist, and Dr Nahum (Jack) Warhaft, consultant in addiction medicine, satisfy the Tribunal that clinic diagnoses of alcohol dependency and pathological gambling disorder were made in relation to Mr Moore. Further, the Tribunal is satisfied that these addictions are recognised as mental illnesses. The Tribunal also notes that Mr Moore's marriage broke down during this period.
Having regard to Mr Moore's admission of having committed professional misconduct such that at the time he was not a fit and proper person to engage in legal practice. It is not necessary to dwell further upon the events of the time. Rather, it is necessary to examine what followed.
The Tribunal is satisfied that Mr Moore consulted Dr Jim Taylor, Dr James Blackett and Dr Darren Fahroedin for help with depression, alcohol and gambling addiction in 2003. Any efforts to break the cycle of addiction were unsuccessful after a short period.
In mid-2006 Mr Moore received notices from the Australian Taxation Office regarding outstanding GST returns. He did not respond to these notices and his alcohol and gambling problems increased. In November 2006 he was served with charges for failing to respond to notices regarding outstanding GST returns. This is said to be the point at which Mr Moore came to grips with his addictions. With one exception, he ceased drinking alcohol at this point and ceased gambling. He engaged a firm of accountants to prepare all GST and income tax returns and on 27 November 2006 he entered into a 28 day addiction rehabilitation program. During the period that Mr Moore was undertaking the rehabilitation program further charges against him of failing to lodge tax returns were issued but not served. Four days prior to completing the rehabilitation program Mr Moore signed all completed outstanding returns and these returns were lodged by his accountant. On 26 December 2006 Mr Moore completed the rehabilitation program, was discharged and returned home.
In late January 2007 Mr Moore resumed work and in doing so he met with the then Director of Public Prosecutions and disclosed the charges which had been brought against him and the circumstances leading to those charges. He was later in that month served with further charges relating to tax returns. In March 2007 Mr Moore commenced treatment with Dr Jack Warhaft. It is worthy of note that Dr Warhaft was Medical Director of the Victorian Doctors' Health Program from 2001 to March 2007 and that during that period he managed about 80 doctors with substance use disorders. Dr Warhaft's report also states that he has treated and continues to treat a significant number of lawyers with alcohol and other drug dependency among the wide range of professional people referred to him. Dr Warhaft is now the Medical Director of the Addiction Recovery Program at Malvern Private Hospital.
At this point it is worthwhile to quote from Dr Warhaft's report:

[23]

Dr Warhaft's report makes reference to Mr Moore having volunteered information that in December 2009 he consumed a small amount of alcohol on a few occasions but that no harm was done and that he has not consumed any alcohol since Christmas Eve. The report goes on to make reference to Mr Moore being fully engaged in recovery and that he has resumed his total abstinence program. Dr Warhaft expressed the view that Mr Moore's disclosure of this consumption of alcohol in December 2009 is an important sign of his rehabilitation. Dr Warhaft's report concludes with the view that Mr Moore has given every indication that he is committed to his recovery program and that if he continues this commitment his chances of relapse are minimal.
On 30 March 2007 Mr Moore wrote to the Victorian Bar Ethics Committee disclosing his circumstances including the forthcoming hearing in relation to charges brought against him and the likelihood of him becoming bankrupt.
In April 2007 Mr Moore was served with a County Court Writ for outstanding tax, interest and penalties.
On 26 April 2007 Mr Moore pleaded guilty to all charges in the Melbourne Magistrates' Court, was convicted and fined an aggregate amount of $7,500 together with costs of $242.00. The chronology placed before the Tribunal states that these amounts were paid in full.
In May 2007 judgment was entered against Mr Moore in the ATO's suit for outstanding tax etc. Mr Moore did not defend this proceeding.
Negotiations were entered into between Mr Moore's accountant and the Australian Taxation Office seeking to compromise outstanding matters between them. At one stage an offer was made on Mr Moore's behalf which would have involved the payment of a sum of money by Mr Moore's father and which, if paid, would have led to Mr Moore foregoing any benefit from his father's estate upon his father's death. This offer was not accepted by the ATO.
On 12 June 2008 Mr Moore became bankrupt following the lodgement of a Debtor's Petition. Warren White, a partner with PPB Chartered Accountants was appointed as his trustee in bankruptcy.
Mr Warren White wrote a letter dated 1 April 2010 addressed to the Tribunal. In this letter, Mr White states that to date Mr Moore has been assessed to pay compulsory income contributions as follows:
- $37,985.36 for the Contribution Assessment Period 12 June 2008 to 11 June 2009 based on actual assessable income of $177,426.20
- $37,874.98 for the Contribution Assessment Period 12 June 2009 to 11 June 2010 based on estimated assessable income of $173,592.65.
Mr White's letter continues to state that to date Mr Moore has made payments totalling $67,904.00 in respect of the above liabilities. Mr White continues by saying that should Mr Moore continue to act as a barrister and should his future assessable income reflect that of his current income Mr White estimates that Mr Moore will be required to pay a further $45,000 to his bankrupt estate for the remaining period of the administration and that should Mr Moore cease to act as a barrister it is unlikely that he will be required to pay further compulsory income contributions to his bankrupt estate. Mr White continues that based upon the figures referred to above he estimates that Mr Moore's bankrupt estate will receive approximately $112,904.00 from Mr Moore throughout the period of the administration. Further he notes that the sole unsecured creditor is the Australian Taxation Office.
Mr White's letter further states:

[30]

The following matters may be concluded from the material placed before the Tribunal by Mr Moore
- Mr Moore acknowledges the wrongfulness of his conduct, and has done so since it came to light.
- Mr Moore has sought and obtained treatment for his addictions to gambling and alcohol. The reports in relation to the treatment indicate that Mr Moore's addictions are in remission and are likely to remain so provided that he continues his treatment, as he has done for the past three years.
- Mr Moore has sought to rectify his past failings in relation to his taxation obligations. As a bankrupt he has done so to a greater extent than that which he would be compelled to do. His trustee in bankruptcy has described his conduct to date as exemplary. He has complied with all his obligations and co-operated in the administration of his estate. All payments have been made in a timely manner. It is worthwhile noting that in the course of negotiations with the Australian Taxation Office Mr Moore made an offer which was rejected by the ATO but which, if it had been accepted, would have resulted in payment of a greater sum than would be recovered as a result of Mr Moore's bankruptcy. This is the offer which would have been assisted by Mr Moore's father and which would have resulted in Mr Moore foregoing an interest in his father's estate upon his father's death.
- The Tribunal regards it of great significance that Mr Moore has worked hard and has increased his earnings during the period of his bankruptcy in order to maximise the return to his bankrupt estate.
- Mr Moore's behaviour since being charged with tax offences satisfies the Tribunal that Mr Moore acknowledges the importance of meeting his taxation obligations.
- Mr Moore has been candid in his dealings with the Victorian Bar and the Legal Services Commissioner.
- The numerous character references indicate that Mr Moore is currently a person who is fit and proper to engage in legal practice.
There can be no doubt that during the period that Mr Moore was not meeting his tax obligations he was not a fit and proper person to engage in legal practice. He admits this. However, upon the material placed before it, the Tribunal is satisfied that Mr Moore is now a fit and proper person to engage in legal practice. This is subject to the proviso that Mr Moore maintains treatment for his addictions.

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Legal Services Commissioner v Moore (Legal Practice) [2010] VCAT 742 (1 June 2010)

Parties

Legislation Cited (2)

Cases Cited (1)