1. The respondent may file and serve any material in response on or before 4pm on Friday 26 June 2015.

1. The proceeding is listed for final hearing before a member of the Tribunal on Wednesday 8 July 2015 at 10:00am at 55 King Street, Melbourne Vic 3000, on an estimate of one day.

1. The Legal Services Commissioner ('the Commissioner') has applied to the Tribunal in respect of Lewis James Spaulding ('the respondent') for determination of eight charges of professional misconduct and for orders under Division 4 of Part 4.4 of the Legal Profession Act 2004 (Vic) ('the Act'). The eight charges arise from five different complaints.
2. The allegations made against the respondent include:
   • (1) engaging in offensive, rude, aggressive, and discourteous behaviour;
   • (2) failing to enter into a costs agreement or provide an estimate of the total legal cost;
   • (3) failing to provide proper bills or accounts;
   • (4) continuing to act when instructed not to do so;
   • (5) failing to respond in a timely manner or to act on instructions;
   • (6) failing to comply with orders of the Tribunal;
   • (7) failure to pay fines and costs imposed by the Tribunal; and
   • (8) failure to comply with the obligations contained in s 4.4.11 of the Act.
3. The respondent has failed to comply with his obligation under r 4.08(2) of the Victorian Civil and Administrative Tribunal Rules 2008 (Vic) to file a statement of his address in Victoria for the service of documents with the Principal Registrar. The respondent has also failed to comply with directions of the Tribunal.[1]
4. In Legal Services Commissioner v Spaulding (Legal Practice),[2] I declined to order that the Commissioner be at liberty to serve a notice to admit facts. This decision highlighted a number of options that were potentially open to the Commissioner if the respondent elected to rely on penalty privilege.[3]
5. In the event, the respondent has not elected to rely on penalty privilege - rather he has declined to provide an address for service, comply with orders of the Tribunal or otherwise participate in the proceeding.
6. By an application made on 24 April 2015, the Commissioner seeks orders determining the proceeding in his favour, and making appropriate orders, including an order for costs. The application is brought under s 78 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') and is supported by the affidavits and exhibits of Shifra Cohen sworn 8 April 2015 and of James Troup sworn 4 May 2015.
7. The written and oral submissions made by counsel for the Commissioner highlight:
   • (1) the conduct of the respondent prior to and during the proceeding;
   • (2) the disadvantage to the Commissioner occasioned by that conduct;
   • (3) the matters that should be considered by the Tribunal in forming a view under s 78(1);[4]
   • (4) the requirements under ss 97 and 98(1)(a) of the VCAT Act for the Tribunal to afford procedural fairness and natural justice; and
   • (5) the position of the respondent having regard to the decision of the Court of Appeal in Towie v Medical Practitioners Board of Victoria.[5]

1. The Tribunal's jurisdiction under s 78(2) is a discretionary jurisdiction. I have reviewed the nature and history of the proceeding, the allegations made and the fact that the Commissioner seeks the suspension of the practising certificate of the respondent on the basis of eight allegations of professional misconduct. It is not, in my opinion, satisfactory or appropriate to make findings of professional misconduct against the respondent and determine the proceeding in favour of the Commissioner on the basis of the jurisdiction afforded to the Tribunal under s 78(2) of the VCAT Act.
2. I am of this opinion for several reasons. First, the jurisdiction of the Tribunal under s 4.4.15 of the Act is a protective jurisdiction. A disbarring order or suspension is not punitive in character. In Legal Services Commissioner v Brereton[6] the Court of Appeal noted that legislation such as the Act creates 'civil norms governing the conduct of legal practitioners, the aim of which is the protection of the public and not the denunciation of the practitioner'.[7] In Law Society (SA) v Murphy[8] Doyle CJ described the purpose of the jurisdiction:

The Court acts to protect the public and the administration of justice by preventing a person from acting as a legal practitioner [...] a profession that plays an important part in the administration of justice and in which the public is entitled to place great trust.[9]

1. Clyne v Bar Association (NSW)[10] also highlights the dual nature of these orders that both protect the public from disadvantage and exploitation, and the profession from the loss of status and privilege that might follow should such abuses go without remedy.[11] Numerous subsequent cases have adopted these objectives.[12] The Tribunal would not be properly discharging its protective duties to the public, the legal profession and the administration of justice generally if it were simply to conclude, in the circumstances of this matter, that the respondent was guilty of professional misconduct as charged without hearing or receiving any evidence.
2. Secondly, a number of the charges are dependent on what was said in conversations, or on behaviour alleged of the respondent which is said to amount to professional misconduct. In order to assess the significance and seriousness of the allegations made against the respondent, it is necessary for the Commissioner to provide the Tribunal with evidence and material as to what is said to have taken place.
3. Thirdly, the findings and reasons of the Tribunal as they relate to the alleged professional misconduct of the respondent, and the gravity of that misconduct if proven, are of fundamental importance to the making of final orders which may significantly affect the respondent and his ability to practice.[13]
4. In making final orders affecting the respondent's ability to practice, the Tribunal is required to take into account any evidence as to rehabilitation, remorse, participation in the conduct of the investigation and hearing, delay, the respondent's financial and family situation, the respondent's behaviour and candour, any explanation for the respondent's behaviour, the benefits of any further training, and any conditions that should be imposed.[14] The Tribunal cannot properly discharge these responsibilities if an order is summarily made under s 78, with the result that evidence and information that may be in the possession of the Commissioner is not provided to the Tribunal.
5. Fourthly, the orders that are sought from the Tribunal are discretionary in character. In order to properly exercise its discretionary powers, the Tribunal requires evidence from the Commissioner that will assist the Tribunal in forming a view as to the orders that ought to be made, and why they should be made.
6. In the circumstances of this case, it is appropriate that the proceeding progress to final hearing rather than being dealt with under s 78(2) of the VCAT Act. Given the continuing absence of the respondent, it appears likely that the final hearing will be conducted on an unopposed basis.[15]

1. The application for an order under ss 78(2)(b) and (c) of the VCAT Act will be refused. Directions will be given as to the listing of the proceeding for final hearing.

[1] See Legal Services Commissioner v Spaulding (Legal Practice) [2015] VCAT 292 [2]-[6].

[4] Referring to Bell Corp Victoria Pty Ltd v Stephenson [2003] VSC 255 (Ashley J).

[5] [2008] VSCA 157.

[6] (2011) 33 VR 126 ('Brereton').

[8] [1999] SASC 83.

[10] Clyne v Bar Association (NSW) [1960] HCA 40; (1960) 104 CLR 186.

[12] For example, Bar Association (NSW) v Evatt [1968] HCA 20; (1968) 117 CLR 177, 183-4; Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215. Many more authorities can be found at Brereton (2011) 33 VR 126, fn 52.

[13] Cases such as Dewan v Medical Board of Australia [2011] VSC 588 and Omant v Nursing and Midwifery Board of Australia [2014] VSC 512 are illustrative of the difficulties involved in attempting to make appropriate orders without the benefit of having heard the matters underlying a particular finding of misconduct.

[14] See Stirling v Legal Services Commissioner [2013] VSCA 374.

[15] See LexisNexis Butterworths, Civil Procedure: Victoria, vol 1 (at service 288) at I49.02.0 and I49.02.5 and United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408; (2011) 198 FCR 514, 531-3.