Mr Nguyen having been found guilty of 16 charges of professional misconduct, the Tribunal orders that:

1. Mr Nguyen is not to be granted a practising certificate before 1 April 2019.
2. The Tribunal recommends to the Supreme Court that Mr Nguyen's name be removed from the local roll of practitioners.
3. Mr Nguyen is to pay the LSC's costs on the County Court scale, to be assessed by the Costs Court, if not agreed.

1. Mr Nguyen is a legal practitioner who continued to practise as in-house counsel for a corporation for almost two years and five months after his last practising certificate expired. During the last six months of that period, he conducted Supreme Court litigation on behalf of his employer. I have found that for at least that six month period, he knew he did not have a practising certificate. Secondly, and more significantly, he lied under affirmation in the witness box to this Tribunal constituted by Judge Lacava, sitting in a disciplinary proceeding enquiring into his conduct in another matter. He said he was not practising as a lawyer, when in fact he was.

1. Mr Nguyen was admitted to practice on 29 March 2004. He has held the following practising certificates:
   • From 24 May 2004 to 13 May 2007 - authorising him to practice as a principal, but not to receive trust monies. During this period Mr Nguyen was a sole practitioner practising under the name Waterford Green Lawyers (WGL) in St Albans.
   • From 14 May 2007 to 26 February 2008 - an employee practising certificate. During this period Mr Nguyen was employed by Gadens Lawyers.
   • From 27 February 2008 to 30 June 2009 - a corporate practising certificate. During this period Mr Nguyen was employed as legal counsel (as well as carrying out other non-legal roles, such as managing franchises) at Sportsco Pty Ltd (Sportsco). He continued to work at Sportsco after 30 June 2009 - up until 21 November 2011, the day the applicant (LSC) commenced its investigation which led to this hearing.

Mr Nguyen said that since April 2012 he has been working in a non-legal position as a leasing executive for Brumby's Bakery.

1. On 14 May 2007, when he commenced employment with Gadens Lawyers, Mr Nguyen changed his practising status from principal to employee. However, he continued to work on a domestic conveyancing transaction conducted by WGL, which had not been finalised by that date. This was the subject of a complaint made on 29 May 2009 and a VCAT disciplinary hearing before Judge Lacava on 17 October 2011[1] (the first disciplinary proceeding). Mr Nguyen appeared on his own behalf.
2. Mr Nguyen was found guilty of two charges of professional misconduct under the Legal Profession Act 2004 (the Act). He was also found guilty of four related charges where professional misconduct had been alleged. That is, those four charges were 'downgraded' to unsatisfactory professional conduct. The most serious of the findings was of professional misconduct in that he had received deposit monies from the purchaser as part of that conveyancing transaction when not authorised to do so.[2] The second professional misconduct finding was of practising as a principal in finalising the transaction during the month or so after 14 May 2007, by which stage he only held an employee practising certificate.
3. None of the parties to the conveyancing transaction suffered any loss. However Judge Lacava found that Mr Nguyen's receipt of trust monies when not authorised to do so was a fundamental breach of his obligations as a practitioner. He also said he rejected Mr Nguyen's explanations for his actions 'out of hand'. He said:

In my view he decided to chance his hand by acting in a way he knew to be contrary to the Act and Regulations and contrary to the conditions of his practising certificate. I regard the respondent's defences and evidence advanced to support them as disingenuous.

1. On 10 November 2010, Lacava J handed down his decision. This included the following orders:
   1. The respondent is not permitted to apply for a practising certificate for a period of 12 months from 20 October 2011.
   2. Prior to the respondent again receiving a practising certificate he is to undertake, over a period of 12 months, courses relating to a practitioner's obligations and responsibilities relating to the keeping of trust accounts and to acquire 10 compulsory professional development points.
   3. The respondent cannot re-engage in legal practice on his own account unless, prior to doing so, he first holds a practising certificate with a condition restricting him to an employee for a period of at least 12 months.

1. The events the subject of the present charges occurred between 11 June 2011 and 21 November 2011. During that period Mr Nguyen continued in his multi-faceted role at Sportsco. This included acting as legal counsel, despite the fact that he did not hold a practising certificate. Fourteen of the charges in this case relate to actions which constituted engaging in legal practice, and representing that he was entitled to do so (seven charges for each). Each of these is brought under s 4.4.4 of the Act whereby conduct constituting a contravention of the Act is capable of constituting professional misconduct. Seven charges allege deliberately or recklessly breaching s 2.2.2 of the Act, by engaging in legal practice when not holding a practising certificate. And seven charges allege deliberately or recklessly breaching s 2.2.3, by representing that he was entitled to engage in legal practice, when he did not in fact hold a practising certificate.
2. The actions the subject of these 14 charges were as follows:
   • On 8 June 2011, in his capacity as 'legal counsel' of Atomic Group (Australia) Pty Ltd (trading as Sportsco) he briefed Mr Justin Mereine of counsel to act for Sportsco in respect of a Supreme Court proceeding, Sportsco Pty Ltd v Singh Group Pty Ltd[3] (charges 1 and 2).
   • On 14 June 2011, he acted as instructing solicitor in the Supreme Court hearing of that matter before Gardiner AsJ. The decision of Gardiner AsJ in that case[4] refers to the solicitors for the plaintiff as 'Mr Andrew Nguyen, legal counsel Sportsco Pty Ltd' (charges 3 and 4).
   • On 24 August 2011 Mr Nguyen filed a Notice of Appeal in that proceeding appealing from the judgment of Gardener AsJ. The Notice of Appeal included Mr Nguyen's signature above the words 'Andrew Nguyen Legal Counsel, Sportsco Pty Ltd' (charges 5 and 6).
   • On 10 November 2011, Mr Nguyen instructed in the Supreme Court (before Ferguson J) on the hearing of an appeal from the judgement of Gardiner AsJ (charges 11 and 12).
   • On 15 November 201, the Supreme Court constituted by Ferguson J, handed down judgment on the appeal. Mr Nguyen instructed counsel in court at the handing down of the judgment.[5] The judgment recites on the first page that 'Mr Nguyen, Legal Counsel, Sportsco Pty Ltd' was the solicitor for the plaintiff. It also refers to Mr Nguyen's role in the transaction the subject of the appeal. It refers to him in paragraph 11 as 'Mr Nguyen, Sports Co's In-house Counsel' (charges 13 and 14).
   • Between 15 November and 21 November 2011 Mr Nguyen instructed Sportsco's counsel, Mr Mereine, to draft written submissions on costs on behalf of Sportsco (charges 15 and 16).
   • Charges 17 and 18 refer to all the other actions which Mr Nguyen took as instructing solicitor in the Sportsco proceeding between 8 June and 21 November 2011, which are not specifically referred to in Charges 1-6 and 11-16.
3. Mr Nguyen pleaded guilty to these 14 charges.
4. The second, and more serious category of charges relates to Mr Nguyen deliberately or recklessly misleading Judge Lacava by:
   • Falsely stating on affirmation in response to a direct question from His Honour that he was not currently practising as a lawyer, such conduct being reasonably regarded as disgraceful and dishonourable by professional brethren of good repute and competency (charge 7).
   • Falsely stating on affirmation that he had applied for a practising certificate when he had not done so, such conduct being reasonably regarded as disgraceful and dishonourable by professional brethren of good repute and competency (charge 9).
5. Charges 7 and 9 allege that this constituted misconduct at common law (under s 4.4.3(1) of the Act).
6. The LSC indicated that Charges 8 and 10 were brought in the alternative to Charges 7 and 9. These relate to the same conduct as Charges 7 and 9, but instead alleged breach of s 4.4.3(1)(b) (conduct which would justify a finding that the practitioner is not a fit and proper person to engage in legal practice). Charges 8 and 10 were not proceeded with.
7. The Application for Order to VCAT sets out two passages from the transcript of the hearing before Judge Lacava on 17 October 2012 which are the subject of Charges 7 and 9. This is the first passage:

Vice President Judge Lacava: Do you practise as a lawyer?

The Respondent: No, I'm a corporate manager in corporate Your Honour. But I do intend and I have applied it - to renew my practising certificate.

The Respondent: To practise Your Honour, perhaps better than I have.

Vice President Judge Lacava: ...What area of corporate managing do you presently work in?

The Respondent: I worked at Sportsco, I'm the corporate manager doing - where (sic) a franchisor Your Honour, in the franchising business. The business, sorry, the (indistinct) I work for, Atomic Group, not Sportsco Your Honour. Sportsco's the subsidiary of that holding parent company and it's an IT sports integrated industry. I work on procurement of new franchisee negotiating acquisitions and the like Your Honour.

The Respondent: It's a small firm - sorry, small company, but it's a - (indistinct), it doesn't pay anything. But I'm happy where I am, but in saying that I have just applied for legal position at another corporation and I intend to revisit my practising side Your Honour.

1. Judge Lacava's decision was dated 10 November 2011. Mr Nguyen said he received it on or around 16 November 2011.[6] As stated, he continued to act as legal counsel for Sportsco until 21 November 2011. That was the day the LSC commenced its investigation. It wrote to Mr Nguyen requesting a full written explanation of his conduct in acting for Sportsco whilst not holding a practising certificate, and in making the above statements to Judge Lacava. On that same day, 21 November 2011, Mr Nguyen said he resigned from Sportsco.
2. Mr Nguyen pleaded guilty to the charges. He admitted that the answers he gave to Judge Lacava's questions above were false. That is, before me, he admitted that at the time he answered Judge Lacava's questions, he was practising as a lawyer, and he had not applied for a practising certificate. Applying the well accepted common law test, it is clear this constitutes conduct which professional brethren of good repute and competency would regard as disgraceful and dishonourable.[7]
3. Further, it is clear that Mr Nguyen's conduct in acting for Sportsco in the period June to November 2011 constitutes breaches of s 2.2.2 and s 2.2.3 of the Act. These are important protective provisions, and so, I have no hesitation in finding that these breaches constitute professional misconduct under s 4.4.4 of the Act.
4. Accordingly, as I stated during the hearing, charges 1-7, 9 and 11-18 are proved, and Mr Nguyen is found guilty of 16 counts of professional misconduct.

EVIDENCE AS TO THE CIRCUMSTANCES IN WHICH THE CONDUCT OCCURRED

1. Mr Nguyen gave evidence under affirmation before me, and was cross-examined by Mr Senathirajah. He also provided a letter to the LSC dated 19 January 2013, which contained explanatory and plea material. He confirmed under affirmation that the contents of this letter were true and correct.
2. The effect of Mr Nguyen's evidence was that he carried out his role at Sportsco, which included practising as a legal practitioner, without realising he did not have a current practising certificate from 2009. He contended that his practising without a practising certificate from June 2009, up to the day of the first disciplinary hearing, 17 October 2011, was inadvertent. He also made submissions suggesting that the admittedly false statements which he made during the VCAT hearing should not be viewed in the most serious light.
3. The effect of his evidence was as follows: he renewed his own practising certificate each year whilst practising as a sole practitioner. Then, when he was at Gadens, the firm arranged that for him. Next, when he was at Sportsco (from February 2008) the Chief Financial Officer, or an administrative assistant had done it for him initially. However, due to inadvertence, his practising certificate was not renewed after June 2009. He said it was only on the day of the VCAT hearing before Judge Lacava - 17 October 2011 - that he realised for the first time, that he did not in fact hold a current practising certificate. He accepted it was his responsibility to renew it, rather than anybody else's.
4. Mr Nguyen ultimately agreed with Mr Senathirajah that at the latest, he must have been made aware of this fact shortly after the commencement of that hearing. This occurred when Mr Senathirajah (who also appeared for the LSC in the first disciplinary proceeding) tendered a document setting out Mr Nguyen's practising certificate history as part of the presentation of the LSC's case.[8] Mr Nguyen was handed a copy of that document at that point.[9] It was a letter from Mr James Leach of the Law Institute of Victoria (LIV) to the LSC dated 17 June 2010 with an attached certificate, also dated 17 June 2010, under s 7.2.5(1) of the Act, which listed all the periods during which Mr Nguyen had held a practising certificate. This showed that no practising certificate had been held since 30 June 2009. It relevantly stated:

Legal Profession Act 2004

Certificate under section 7.2.5(1)

Pursuant to the provisions of section 7.2.5(1) of he Legal Profession Act 2004, the Law Institute of Victoria, certifies that ANDREW MINH NGUYEN of VICTORIA has held a practising certificate as set out below:

Corporate Practising Certificate: 27 February 2008 - 30 June 2009

Employee Practising Certificate: 14 May 2007 - 26 February 2008

Principal Practising Certificate: 24 May - 13 May 2007

ANDREW MINH NGUYEN is not the holder of a current Victorian local practising certificate.

1. Even then, Mr Nguyen suggested that in the stress of the hearing, he did not properly take in the fact that he did not hold a practising certificate.
2. Mr Senathirajah put to Mr Nguyen that he would in fact have become aware that he did not hold a current practising certificate well before 17 October 2011. Mr Senathirajah tendered the Application for Order in the earlier disciplinary proceedings, dated 10 May 2011. Mr Nguyen acknowledged reading this in May 2011. Paragraph 2 stated:
   1. You:

(a) held a practising certificate as a principal without authority to conduct a trust account from 24 May 2004 to 13 May 2007 and engaged in legal practice as a sole practitioner practising under the name "Waterford Green Lawyers" (WGL) from 26 May 2004 to 13 May 2007, when WGL ceased to practice;

(b) held a practising certificate as an employee solicitor from 14 May 2007 to 28 February 2008 and engaged in legal practice as a legal practitioner employee of Gadens Lawyers from 14 May 2007 to 13 February 2008; and

(c) held a practising certificate as an employee corporate legal practitioner from 27 February 2008 to 30 September 2009 and engaged in legal practice as an employee of Sportsco Pty Ltd from 27 February 2008 to 30 September 2009.

Paragraph 3 then went on to deal with the facts of that matter.

1. Mr Nguyen denied that this contained any implication that he did not hold a practising certificate after 30 September 2009.[10]
2. A statement to the same effect was made in paragraph 6 of the LSC's Notice to Admit Facts and Authenticity of Documents in that case. Paragraph 6 stated:

You held a practising certificate as an employee corporate legal practitioner from 27 February 2008 to 30 September 2009.

1. That document is not dated, but was served on 11 July 2011, and Mr Nguyen responded to it by notice dated 1 August 2011. In that response, Mr Nguyen admitted to 'Paragraphs 4-8 and to the best of his recollection with respect to the dates'.
2. Mr Nguyen similarly denied that this contained any implication that he might not hold a current practising certificate, such as would alert him to the need to take action or check.
3. During his evidence, Mr Nguyen stated that ordinarily, Sportsco would retain external solicitors in a matter such as the Singh litigation, but at the time, the company could not afford that.[11] So he was under pressure to conduct the litigation himself. In relation to the period after the 17 October 2011 hearing, Mr Nguyen was asked whether [the Tribunal] was 'to understand that you deliberately engaged in legal practice knowing you weren't entitled to because that was in the best interests of your employer, is that your answer?' He responded: 'I felt a mixed interest, yep, that's my answer. There was a um, inconsistent interest and I was caught right in the middle of it.'[12]
4. In relation to the statement he made to Judge Lacava that he did not practise as a lawyer, Mr Nguyen was quite clear in his evidence before me that this was a falsehood. He said he could not explain why he gave that answer - he did it on the spur of the moment. He was under stress.
5. In his evidence, Mr Nguyen was very reluctant to admit that this was a 'lie'. When asked to acknowledge this, he kept coming back to euphemisms such as, 'I wasn't fully frank, um, and I was ambiguous in my testimony',[13] 'I've admitted to um, somewhat misleading judge [Lacava] by not being fully frank with him',[14] 'its not about lying, its about being not fully upfront,'[15] 'no, I didn't lie, I wasn't absolutely candour...'.[16]
6. The second false statement made by Mr Nguyen to VCAT during his testimony on 17 October 2011 was that he had applied for a practising certificate. His partial explanation for that was that he was in the process of applying for another in-house legal counsel role at that point. I infer this statement was made to convey to the judge that he was keen to practise law, in support of a submission that any interference with his right to practise be avoided or minimised.
7. In relation to the period from 17 October to 21 November 2011, Mr Nguyen accepted that he continued to practise, despite unequivocally being aware of the fact that he did not have a practising certificate. He said he was the only qualified lawyer at Sportsco, and as stated above, he felt pressure to act as an instructing solicitor in relation to the Sportsco litigation, because money was tight and there was a desire to avoid retaining a firm of solicitors due to the cost.
8. In answer to the question why he did not apply for a practising certificate immediately after 17 October 2010, Mr Nguyen said this was because the LSC had submitted to VCAT that there should be a restriction on his right to practise. He acknowledged that the situation which arose, where he continued to practise, but refrained from applying for a practising certificate was 'ridiculous'.[17]
9. Finally, and in relation to credit generally, Mr Senathirajah suggested to Mr Nguyen that he had dishonestly failed to disabuse Judge Lacava of his understanding that he had an honours degree from Melbourne University. He agreed before me that he does not have an honours degree. From the passage in the transcript,[18] however, which indicates this statement was made by the judge as an aside, I am unable to say conclusively that Mr Nguyen did deliberately mislead VCAT. I have therefore had no regard to this issue in reaching my decision in this case.

1. The main question from the evidence is when Mr Nguyen became aware that he did not hold a current practising certificate. In my view, it is likely in the circumstances that he realised this at least from mid-June 2009, when the LSC notified him of the complaint which gave rise to the first disciplinary proceeding. The LSC notified him of this complaint and sought a full written explanation by letters sent to Mr Nguyen dated 25 June 2009 and 20 August 2009. Mr Nguyen responded by letter dated 27 August 2009.
2. Whilst one can understand, on occasion, lawyers missing the renewal deadline, in my view, it is unlikely that a lawyer would forget to renew on three occasions, for a period of over two years. Also, I would expect that the receipt of notification from the LSC that a complaint had been received arising out of conduct during the period when he did hold a practising certificate, and subsequent correspondence about it, would trigger a query in a lawyer's mind as to whether his current registration was up-to-date.
3. Although earnestly given, Mr Nguyen's evidence was not clear and forthright. A component of this might be due to English not being his first language. However nothing in his demeanour, and the content of his evidence, assisted in overcoming the inherent unlikelihood that he would not renew his practising certificate on the three occasions in 2009, 2010 and 2011.
4. However, even accepting in Mr Nguyen's favour, that notification to him of the complaint in June 2009, and the passage of time, had not caused him to realise that his practising certificate had not been renewed, I find that he did receive notification, and was aware, that he did not hold a current practising certificate by May 2011 at the latest. This was when (as he acknowledged in his evidence) he received the LSC's Application for Order in the first disciplinary proceeding (see paragraph [23] above). I reject his contention that the wording of the Application for Order (and the certificate under s 7.2.5(1)) allowed for the possibility that he might still be holding a current practising certificate. I find the only fair reading of these statements is that he did not hold a practising certificate after 30 September 2009.
5. All the conduct covered by the charges 1-6 and 11-18 occurred after May 2011 (namely, conducting the Singh litigation without a practising certificate whilst at Sportsco, and representing that he was entitled to do so). Thus, I find that Mr Nguyen knew he was practising without a practising certificate when conducting that litigation. To that extent, I do not accept that the false statement to Judge Lacava that he was not practising was spontaneous.
6. Mr Nguyen accepted that after 17 October 2011, he practised whilst being aware that he did not hold a practising certificate. It is clear that after that date, Mr Nguyen chose to continue to carry out his legal work at Sportsco without renewing his practising certificate.
7. As Judge Lacava found to be the case in relation to the first disciplinary proceeding, similarly here, I find that from May to November 2011 Mr Nguyen knew he did not hold a practising certificate, but nevertheless decided to 'chance his hand'.

1. Mr Senathirajah, for the LSC, sought that I make a recommendation to the Supreme Court that Mr Nguyen's name be removed from the roll of practitioners under s 4.4.17(a) of the Act. He submitted there can be no more serious breach of a lawyer's professional responsibility than to lie to a judge. He referred to the statement by Chief Justice Warren in Legal Services Board v McGrath[19] as follows:

While the authorities indicate that the disciplinary power in question is entirely protective, that protection extends beyond protection of the public to include the legal profession as a group, the courts, the justice system and community confidence in that system. It is for this reason that striking off may follow where a practitioner's conduct shows "a defect of character incompatible with membership of a self respecting profession" ...

1. He also referred to the High Court decision in Hughes & Vale Pty Ltd v New South Wales (No 2)[20] which identified three key factors in determining whether a person is fit and proper to be a legal practitioner: honesty, knowledge and ability.
2. Mr Nguyen requested that he be given a two year ban on practising, together with stringent conditions, focussed particularly on education and rehabilitation.
3. Mr Nguyen accepted that making false statements under affirmation was a gross breach of his professional duty. He said he had demonstrated 'absolute remorse'. However, he did seek to downplay the seriousness, in terms of moral turpitude of his conduct to some degree by submitting that Judge Lacava's question was not directly on the point at issue in the disciplinary proceeding. Mr Nguyen also said that his falsehoods were spontaneous and not pre-meditated.
4. In the hearing, and in his letter to the LSC of 19 January 2013, Mr Nguyen made the following additional plea submissions:
   • He had made an early plea. (Mr Senathirajah contested this. From discussion in the hearing, it appears that whilst Mr Nguyen indicated he was minded to plead guilty in December 2012, he did not formally confirm this until 14 January 2013.)
   • He is quite junior in the profession [and therefore should be treated more leniently].
   • He referred to his conduct since he had ceased to practise - he had worked 'tirelessly' in his new role and without committing any further breaches or offences. Apart from the first disciplinary proceedings, there are no findings against him by any courts or criminal or disciplinary matters.
   • Nor has there been any complaint other than that which gave rise to the first disciplinary hearing. He said he had always practised competently and ethically.
   • He chose to establish his practice in the socio-economically disadvantaged area of St Albans, to assist the Vietnamese community. It did not make a profit. He accumulated $50,000 debts, and also had approximately $30,000 in bad debts owed. He also carried out volunteer work at the 'Deer Park Legal Aid Centre' during this time.
   • The impact of any sanction on himself and his family. He came to Australia as a refugee at the age of seven. He feels shame and embarrassment, and is losing his good reputation in the Vietnamese community.
   • The financial impact on him: his earnings had almost halved since he stopped working in a legal role, and he has no assets and substantial debts.
   • He sought the 'sympathy and compassion' of the Tribunal in considering sanction.
   • The Tribunal should focus on protection of the public, rather than punishment, in accordance with the statement to that effect in Quinn v Law Institute of Victoria Limited.[21]
   • He is the only person who has suffered as a result of his conduct. There has been no loss suffered by the public. He referred to Legal Services Commissioner v Rallis.[22] He said in that case, there was misappropriation of trust monies and a lack of genuine remorse and insight. The practitioner in that case was banned form practising for 18 months.
   • He sought to invoke the Proudman v Dayman[23] defence of honest and reasonable mistaken belief in relation to his conduct in practising without a current practising certificate. He referred to Legal Services Commissioner v Brondolino.[24]
5. Also, in response to questions from me, Mr Nguyen said:
   • His health had been adversely affected, but this had only occurred since the first disciplinary proceedings had been commenced. Thus, it was not a cause of his conduct. He did not produce any medical evidence.
   • He had been involved in some volunteer work for a charity 'Hands for Hope', which supports children with a disability in Vietnam. but not in recent times.
   • He studied law at Melbourne University as a mature age student. He has a HECS debt of about $40,000.
6. Mr Nguyen sought to characterise the situation as one where an administrative slip in failing to renew his practising certificate had snowballed into a situation where the consequences for him were disproportionately serious with the precipitating cause.

49 In Legal Services Board v McGrath[25] Warren CJ relevantly said:

An exercise of the Court's discretion to remove a practitioner from the Roll is made by reference to a number of long standing principles.[2] ... Such a decision will only be made when the Court is satisfied at the time of the hearing[4] that the practitioner in question is shown 'not to be a fit and proper person to be a legal practitioner'[5] or is shown not to be a 'fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor'[6] and will likely remain so for the indefinite future.[7] The person or entity bringing such an application bears the onus of satisfying the court of the requisite degree of indefinite unfitness on the balance of probabilities.[8] As was set out in Briginshaw v Briginshaw,[9] that standard is not a fixed or simple one, but depends upon the matters before the court. Whilst the onus of proof is a civil one, the Court approaches the making of such decisions with caution[10] and 'meticulous care',[11] and with a great appreciation for 'the possibly disastrous consequences of disbarment to the individual concerned'.[12]

1. In Legal Services Commissioner v Rushford,[26] the Supreme Court, constituted by Bell J, recently stated that the role of VCAT when considering whether to recommend to the Supreme Court that a practitioner's name be removed from the roll is to 'independently consider that a removal order is called for under the governing principles'.[27] It is then to set out its reasons for making the recommendation clearly and fully.[28]
2. The Court will of course then make its own independent assessment of the question. It is its inherent jurisdiction which applies in cases where there is no cancellation of an interstate practicing certificate, nor any finding of guilt for a finding of an offence.[29]
3. At paragraphs 15-16 of Rushford[30], Bell J said:

...After a person has been so admitted, the courts implicitly hold him or her out to be a person who is fit to hold that office. When it is brought to the court's attention that the person's conduct or situation gives cause to challenge the continuation of that position, the courts must reconsider his or her suitability to practise. That principle was explained by Lopes LJ in Re Weare:[9]

To my mind the question which the Court in cases like this ought always to put to itself is this, is the Court, having regard to the circumstances brought before it, any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor? That appears to me to be the question which the Court always has to answer when a matter of this kind comes before it.[10]

Such reconsideration is seen to be the court's positive responsibility. So, in Southern Law Society v Westbrook,[11] O'Connor J said:

The Supreme Court in admitting a solicitor to the roll incurs very great responsibility to the public. Having admitted him, it incurs an equally serious responsibility in keeping him on the roll if once the attention of the Court has been called to conduct on his part which shows that he is not a fit and proper person to remain there.[12]

[16] It will be obvious to everyone why the courts are concerned to ensure that only fit and proper persons are admitted to and continue in practice as officers of the court. Legal practitioners have heavy responsibilities and particular privileges which must be properly exercised in the interests of justice and of maintaining public confidence in the legal profession. The importance of this point was emphasised by Doyle CJ and Stanley J in Legal Practitioners Conduct Board v Clisby [13]

It is of the utmost importance that public confidence in the legal profession be maintained. Legal practitioners play an integral part in the administration of justice. The obligations which accompany a practitioner's position are commensurate with the responsibility involved. The duties of legal practitioners include a duty to uphold the law, a duty to the Court, a duty to clients and a more general duty to members of the public. The Court and the public demand high standards from practitioners. This is reflected in the legislative processes that regulate the admission of practitioners and govern their conduct.

[19] In Hughes & Vale Pty Ltd v New South Wales [No 2],[20] Dixon CJ, McTiernan and Webb JJ said the standard of being a 'fit and proper' person to practise involved three things: 'honesty, knowledge and ability'[21]. In McGrath, Warren CJ said the concept of 'fit and proper' required 'technical and moral aptitude sufficient to meet the demands of the role in question'.[22] Her Honour went on to adopt the analysis of Walters J in Sobey v Commercial and Private Agents Board.[23] Speaking in an analogous context, his Honour said the concept of 'fit and proper' required the person to be

possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence ... but also ... of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.[24]

[20] The conduct or circumstances which may establish that a person is no longer a fit and proper person to be on the roll of practitioners are not closed. Judgments of the High Court have repeatedly stressed the need to consider 'the whole position'[25]...

1. Practising without holding a practising certificate is of course a very serious matter, attracting a maximum penalty of two years imprisonment.[3] Falsely representing that one is entitled to practise attracts a maximum penalty of 120 penalty units.[32] I have found that Mr Nguyen continued to practise in the knowledge that he did not hold a current practising certificate, at least after May 2011. I have found that his breaches were deliberate, not inadvertent.
2. In Prothonotary of the Supreme Court of New South Wales v McCaffery,[33] a barrister who deliberately practised for 16 months without holding a practising certificate was struck off the roll of practitioners, despite extreme circumstances of personal hardship.
3. However, these two matters, of practising without holding a practising certificate, and falsely representing that he was entitled to practise, serious as they are, are overshadowed by Mr Nguyen's conduct in lying to a judge, sitting in VCAT. The fact that these statements occurred in the course of a disciplinary hearing into his own conduct makes them all the more pointed and egregious.
4. Not surprisingly, many of the statements in the authorities[34] refer to dishonest or misleading statements or conduct in support of a practitioner's clients' interests. They make it quite clear that where there is any conflict, or risk of conflict, between the duty of a practitioner not to mislead a court (or a tribunal) and what the practitioner perceives to be his/ her duty to the client, the duty to the court must always prevail.[35]
5. In Forster v Legal Services Board[36] President Ross J stated:

A practitioner's duty of honesty and candour to the courts applies despite the fact that the practitioner is acting in a personal capacity rather than on behalf of a client.

1. Ross J referred to Re Thom; Ex parte the Prothonotary [of the Supreme Court of New South Wales][37]and Coe v New South Wales Bar Association.[38] These cases both involved the provision of false testimony to a court in the practitioner's own family law proceedings. The practitioners were, respectively, a solicitor and a barrister in those cases. In the first case (in 1962), the solicitor was suspended for six months, and in the second (in 2000) the barrister was struck off the roll.
2. Despite Mr Nguyen's earnest statements, I am left with no confidence that he understands the significance of his conduct. Even if his lies to Judge Lacava were told in a moment of weakness, Mr Nguyen did not take any action to confess to them, even after he had time to reflect. He could have done so before the end of the hearing (preferably) or in the days or weeks afterwards, before Judge Lacava handed down his decision.
3. In his evidence before me, and in earlier correspondence with the LSC, Mr Nguyen said he was under great stress when giving his evidence before Judge Lacava on 17 October 2011. He said he felt extremely distressed embarrassed and ashamed by his performance in the witness box, especially under cross-examination. He said his answers were spontaneous in trying to cover his embarrassment and shame. As stated, however, I do not accept that Mr Nguyen was unaware he did not hold a practising certificate after May 2011. To that extent I reject his explanation that he panicked in the witness box when he suddenly realised he had been practising without a practising certificate, causing him to lie about his circumstances. Also of course, he had been reminded of his non-registered status early in the hearing, when the certificate under s 7.2.5(1) had been tendered and handed to him.
4. He also subsequently told the LSC[39] that he did not recall giving evidence to the Tribunal that he was not currently practising. Again, I do not accept this. On his own version of events, Mr Nguyen knew he was practising, albeit he did not realise until 17 October 2011 that he did not hold a practising certificate. I cannot accept he could forget he had told that untruth in the witness box. Rather, it would have been something that would have loomed large in his mind, given that it might well be discovered by the LSC that he was in fact practising at the time (as in fact occurred).
5. In the light of his conduct in practising unregistered, and lying to a Judge sitting in VCAT, I have concluded that Mr Nguyen is not a fit and proper person to practise as a legal practitioner. This conclusion is reinforced by several other matters:
   • First, Mr Nguyen's reluctance to accept that he told 'lies'.
   • Second, the prior finding against him by Judge Lacava in the first disciplinary proceeding, and his finding that Mr Nguyen's evidence was 'disingenuous'.
   • My finding above rejecting his contention that he was not aware that he did not hold a current practising certificate during the period from commencing no later than May 2011, until 17 October 2011.
6. The three requirements identified in Hughes & Vale were honesty, knowledge and ability. The first has been dealt with above. Mr Nguyen has also demonstrated a lack of knowledge of his ethical obligations as a legal practitioner. In the circumstances of this case, I find unconvincing Mr Nguyen's submission that he now has 'a better grasp and understanding of due candour to the court.'[40] He sought to suggest that he previously did not fully understand his obligation as a practitioner and as a witness under affirmation to be completely candid to the Tribunal. He said, 'I was unclear of, um, a witness's requirement to be absolutely candid in, in, in, in um his or her testimony'.[41] After hearing his evidence, I was not convinced that Mr Nguyen had an increased level of understanding of his ethical obligations now. Rather, I conclude he knew it was wrong to lie to Judge Lacava at the time, but now seeks to find a way to differentiate his knowledge now from then, in an attempt to assist his plea. He did acknowledge that it was 'ridiculous' that he continued to practise after the fact that he did not hold a practising certificate was emphasised during the hearing on 17 October 2011.[42] But in the hearing before me, he nevertheless sought to diminish the culpability of his conduct.
7. The criterion of ability is of less relevance here. However, it is clear from what I have said above that Mr Nguyen did not conduct his defence effectively. He indicated he was not able to afford private legal representation, and had not succeeded in obtaining representation through the LIV or Legal Aid, despite the LSC's strong recommendation for him to do so in its letter of 3 December 2012. Mr Nguyen's assertion as to his good work and character aside from the matters dealt with above, were not supported by any references or character witnesses. There was an air of unreality about these submissions. He appears to be professionally isolated.
8. It may be true that Mr Nguyen 's predicament all began with an administrative oversight - in not renewing his practising certificate in July 2009. It was his subsequent actions, however, which caused him to get deeper and deeper into difficulty. Nor do I accept that the matter on which he lied to Judge Lacava was not one of great significance. The question as to whether he was then practising was relevant to the disposition to be determined by Judge Lacava, and to the protection of the public.
9. Similarly, it is not to the point that no person suffered directly as a consequence of Mr Nguyen's false statements. For example, no client suffered financial loss. Mr Nguyen's lies were told in proceedings which were personal to him, namely, disciplinary proceedings under the Act. As the authorities referred to above make clear, that does not affect his duty of candour. When a practitioner lies to a judge, the legal system is potentially weakened, to the disadvantage of the whole community. I refer to the statement of Bell J in Rushford, above. The effective operation of the courts and the legal system depends on judges, tribunal members and the public being able to trust legal practitioners, and having confidence in their honesty and preparedness to abide by their paramount duty to courts and tribunals.
10. I note that in the Rallis case, the practitioner had practised without a practising certificate for two and a half months, and was ordered to pay the sum of $2,161.50 to his former client. There was no charge of dishonest conduct, although there was some suggestion of a lack of frankness in the presentation of his case. Of course, each case must be decided on its own facts and circumstances, and the situation in Rallis was very different to that here. For example, Mr Rallis was able to point to factors of delay, rehabilitation and mental health which are not applicable here.
11. The purported reliance on the defence of honest and mistaken belief (by reference to the case of Brondolino)[43] is misguided in circumstances where Mr Nguyen has pleaded guilty to the charges of deliberately or recklessly practising without a practising certificate, and of deliberately or recklessly falsely representing that he was entitled to engage in legal practice. A claim that a person held an honest and reasonable mistaken belief of fact is a defence to a charge for an offence of strict liability.[44] It was pleaded in Brondolino as a defence to a charge of failing to provide a full written explanation of a practitioner's conduct to the LSC. Here, by pleading guilty, Mr Nguyen must of course be taken to have accepted the mental element of the breaches of s 2.2.2 and s 2.2.3 of the Act. In making this submission, Mr Nguyen acknowledged that he had pleaded guilty to these charges.
12. So there appears to be an inconsistency between his plea of guilty and his invoking of the notion of honest and reasonable mistaken belief. Mr Nguyen's case was that for the whole of the period from July 2009 to 17 October 2011, his practising without a practising certificate was inadvertent. It is in relation to the second part of this period, commencing on 8 June 2011 (the date of the act the subject of the earliest of the present charges) that this possible inconsistency arises. On the one hand, he has pleaded guilty to charges of knowingly or recklessly practising. But on the other, he is contending he was labouring under an honest and reasonable mistaken belief that he held a practising certificate, which would suggest he was contesting the charges.
13. There are two answers to this. First, having heard Mr Nguyen's submission, I conclude that he was invoking the concept of honest and reasonable mistaken belief in a general sense in support of his plea for a more favourable outcome in terms of penalty. In the course of making this submission, he acknowledged he was pleading guilty.
14. Second, as indicated above, I have concluded on the evidence that he did not hold such a belief after May 2011. So even if he was in fact contesting the charges, on my findings, the mental element has been satisfied. In making this finding I have applied the Briginshaw standard. I have been mindful of the particular seriousness of the charges against Mr Nguyen, such that a high level of satisfaction is required.
15. Of course, these issues concerning the mental element relate only to Charges 1-6 and 11-18. They do not relate to Charges 7 and 9, which are the more serious.
16. Overall, I have come to the conclusion that Mr Nguyen is not a person of honesty. This is compounded by his reckless preparedness to 'chance his hand' and practise unregistered. This is the second time he has continued to practise in a manner contrary to limitations under the Act. I can have no confidence that if allowed to practise he would not act in this way again. He has worked as a lawyer for seven years, (although he only held a practising certificate for five of those years) in three different styles of practice, and yet in that time has not gained a genuine understanding of the basic requirement of honesty. Accordingly, I conclude that Mr Nguyen is unfit to practise, and likely to remain so for the indefinite future.[45]
17. Accordingly, I recommend to the Supreme Court that Mr Nguyen's name be removed from the local roll of practitioners.
18. It is also appropriate for me to impose a sanction from those which are available to the Tribunal under s 4.4.17. Mr Nguyen's past community service, and his plea of guilty (albeit that this was not confirmed until several weeks before the hearing) are factors in his favour, but not strong factors in this case. Whilst I acknowledge that with his background as a refugee, Mr Nguyen has no doubt had to deal with more obstacles than most in becoming a lawyer, and in maintaining his practice subsequently, his conduct contravenes the most basic of universal requirements - to act with honesty, and not to practise without a practising certificate.
19. Considerations of general and specific deterrence both require that a condign penalty be imposed. Here, applying the reasoning of Maxwell P in Quinn, as Mr Nguyen urged me to do, it is clearly necessary that in terms of the goal of protecting the public, a sanction be imposed which carries a significant punitive element. Mr Nguyen's submission that he be allowed to practise again in two years time, subject to stringent conditions focused on education and rehabilitation must be rejected. The situation here has gone beyond that stage. To impose anything other than a long prohibition on practising would undermine community confidence in the legal system. This depends on courts and tribunals being able to trust the word of practitioners without question.
20. Apart from the recommendation to the Supreme Court that Mr Nguyen's name be removed from the local roll of practitioners, given the magnitude of his offences, I will make an order that he not be granted a practising certificate for six years.
21. Finally, there being no exceptional circumstances, I order under clause 46D of the Victorian Civil and Administrative Tribunal Act 1998 that Mr Nguyen pay the LSC's costs on County Court scale, to be assessed by the Costs Court if not agreed.

[1] Legal Services Commissioner v Nguyen (Legal Practice) [2011] VCAT 2105.

[2] He had carried out his practice without a trust account. This was because the the cost of maintaining a trust account was too high, and the associated requirements too stringent. In the conveyancing transactions he conducted, deposit monies were paid by purchasers to estate agents. His firm did not receive funds to be held in trust. However, there was no estate agent involved in this particular transaction, and Mr Nguyen chose to receive the deposit monies himself, even though he did not have a trust account.

[3] Supreme Court matter no. 6855 of 2010.

[4] [2011] VSC 390.

[5] Sportsco Pty Ltd v Singh Group Pty Ltd [2011] VSC 576.

[7] Re a solicitor [1960] VicRp 96; [1960] VR 617, 620 per Dean J.

[8] Transcript of the first disciplinary proceeding, page 12. The letter was marked as exhibit E.

[10] In fact the reference to September 2009 was an error. As indicated, Mr Nguyen ceased to hold a practising certificate from June 2009. However, I do not believe anything turns on this.

[18] Transcript of the first disciplinary hearing, page 32.

[19] [2010] VSC 266 at [11]; the decision also comprises the decision in Legal Services Board v McGrath (No. 2) [2010] VSC 332.

[20] [1955] HCA 28; (1955) 93 CLR 127.

[21] [2007] VSCA 122 at [31].

[22] [2009] VCAT 1445.

[23] [1941] HCA; [1941] HCA 28; (1941) 67 CLR 536.

[24] [2010] VCAT 51 at [34]- [55].

[25] [2010] VSC 266 at [9]. The case references footnoted in that passage are as follows:

[2] Ex parte Brounsall [1778] EngR 95; (1778) 2 Cowp 829; 98 ER 1385 ('Brounsall').

[4] A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253, 268 ('A Solicitor').

[6] Re Weare (1893) 2 QB 439, 448. See also Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609, 612.

[7] Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93, [54] ('Stanoevski').

[8] The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 (Unreported, Hodgson, Tobias and Basten JJA, 29 November 2007) [9]-[16].

[9] [1938] HCA 34; (1938) 60 CLR 336.

[10] Legal Services Board v Bourozikas [2009] VSC 382, [15]. See also, Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 ('Ziems'). 288, and A Solicitor, 268.

[26] [2012] VSC 632.

[30] [2012] VSC 632. The case references footnoted in that passage are as follows:

[11] [1910] HCA 31; (1910) 10 CLR 609 ('Westbrook').

[13] [2012] SASCFC 43 (1 May 2012) (Doyle CJ, Anderson and Stanley JJ).

[22] [2010] VSC 266; (2010) 29 VR 325,329 [12]

[23] (1979) 22 SASR 70.

[25] See eg Ziems [1957] HCA 46; (1957) 97 CLR 279, 288 (Fullagar J); A Solicitor [2004] HCA 1; (2004) 216 CLR 253, 266 [18] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).

[33] [2004] NSWCA 470.

[34] See for example Incorporated Law Institute of NSW v Meagher [1909] HCA 87; (1999) 9 CLR 655; Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56.

[35] Guss v Law Institute of Victoria [2006] VSCA 88 at [39].

[36] [2011] VCAT 2216 at [179].

[38] [2000] NSWCA 13.

[39] In his letters of 16 April 2011 (attachment 9 to the Application for Order) and 30 April 2012 (attachment 13 to the Application for Order).

[44] Proudman v Daymen [1941] HCA; [1941] HCA 28; (1941) 67 CLR 536, He Kaw Teh v R [1985] HCA 43; (1985) 175 CLR 523; Allan v United Carpet Mills Pty Ltd [1989] VicRp 27; [1989] VR 323; Wilson v Gahan [1999] VSC 72.

1. [45] Prothonotary of Supreme Court of New South Wales v P [2003] NSWCA] 320; Prothonotary v Richard (NSWCA) 31 July 1987 per McHugh JA; NSW Bar Association v Maddocks (NSWCA 23 Aust 1988); Legal Services Commissioner v Brott (Legal Practice) [2011] VCAT 110. In New South Wales Bar Association v Murphy [2002] NSWCA 138 at [27], Spigelman CJ suggested that under the NSW regime, conduct which is sufficiently egregious as to give rise to a contention that a person is 'indefinitely' unfit to practise would also be sufficient to justify removal from the roll.