plaintiff. The Tribunal found Wong guilty of three instances of professional misconduct, ordered him to provide the requested information and documents by 4 pm on 23 March 2009, imposed a $4,500 fine, and...
Key principles
The Commissioner’s powers under Chapter 4 of the Legal Profession Act 2004 (Vic) were not confined to investigating conduct occurring in the course of legal practice. The...
The Migration Act 1958 (Cth) complaint process did not impliedly exclude the Commissioner from investigating conduct that was also the subject of a complaint to the Migration...
Repeatedly failing to provide information and documents requested during disciplinary investigations, despite warnings and despite the importance of those investigations to...
Issues before the court
Whether Wong’s failures to respond to the Commissioner and the LIV constituted professional misconduct.
Whether the Commissioner could investigate conduct by Wong in his capacity as a registered migration agent without a referral from MARA.
Whether cancellation of Wong’s practising certificate was an appropriate penalty.
Plain English Summary
A lawyer who is also a registered migration agent may be investigated by the legal profession regulator for conduct connected with migration services, even where the migration-agent regulator has a complaint process concerning the same conduct. The Tribunal also treated repeated failures to answer disciplinary investigators’ requests as serious because they impeded an investigation intended to protect the public. Wong was fined and ordered to provide the outstanding material, but his practising certificate was not cancelled.
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Deep Dive
2,149 words · generated 01/10/2026
What happened
The Victorian Civil and Administrative Tribunal considered three charges of professional misconduct against Jonathan Wong, a sole practitioner who had practised for about 25 years. The Legal Services Commissioner alleged that Wong failed to comply with requests for information and documents in two complaint investigations. The Tribunal’s reasons concern the Legal Profession Act 2004 (Vic), referred to in the judgment as the “2004 Act”.
Cited legislation
No linked legislation citations have been extracted yet.
The first charge arose from a complaint by Mr and Mrs Leong, who had instructed Wong about the sale of a property in Epping and related mortgage matters. Their complaint raised issues about the services supplied, costs, delay in settlement and resulting financial loss. The Commissioner first wrote to Wong in August 2006. After multiple requests, Wong replied in April 2007 and provided some, but not all, of the requested documents. Further requests in March, April, May, July and August 2008 sought information and documents including ledgers, explanations of apparent invoice discrepancies, comments about unsigned bills and evidence that outstanding bills had been served. Wong did not provide all of the material or a written explanation by the time the Commissioner applied to the Tribunal. He later supplied trust and office ledgers, but still did not provide a written explanation (Charge 1, paras 1-12).
Charges 2 and 3 concerned Mr Wang’s complaint about a migration matter. Wang had paid Wong $1,100 on 6 September 2007 while considering whether to proceed. The complaint raised issues including a cost agreement and disclosure, authority to transfer funds to the office account, communications, delay, service and a refund. The LIV, investigating the complaint after referral from the Commissioner, asked Wong for a full written explanation and trust account ledger. Wong confirmed by telephone that he had received the requests and said he would send an explanation, but the LIV did not receive it. The Commissioner later requested the explanation, ledger and file. They remained outstanding by the date of the Commissioner’s application to the Tribunal (Charges 2 and 3, paras 1-11).
Wong admitted the factual allegations. He argued, however, that the Commissioner had no jurisdiction over the Wang matter because the services were provided in his capacity as a registered migration agent, and the migration-agent complaint process applied. The Tribunal rejected that argument. It found three instances of professional misconduct, declined to cancel Wong’s practising certificate, and ordered him to provide specified material by 4 pm on 23 March 2009. It also ordered a total fine of $4,500 and costs.
Why the court decided this way
The Tribunal’s reasoning has two linked parts: why the investigative failures amounted to professional misconduct, and why the Commissioner could investigate the Wang complaint.
For Charge 1, the Tribunal said that a contravention of s 4.4.11 was capable of constituting unsatisfactory professional conduct or professional misconduct, and that the distinction would usually be a matter of degree (Charge 1, paras 16-17). The decisive point was not simply that Wong had missed a deadline. He had failed to respond to repeated requests, had been warned that non-compliance might breach the Act and amount to professional misconduct, and still had not provided the requested written explanation even after proceedings began (Charge 1, para 19).
The Tribunal connected the obligation to respond with the purpose of the disciplinary system. Investigations of practitioners were an important part of the statutory regulatory regime and a means of protecting the public. Wong’s conduct had adversely affected the Commissioner’s ability to investigate the Leong complaint expeditiously (Charge 1, para 20). On that reasoning, the failures were not treated as merely administrative delay: they impaired the operation of the statutory investigation process. The Tribunal found the conduct to be professional misconduct (Charge 1, para 21).
For the Wang charges, the Tribunal first addressed what kind of services Wong had provided. It considered the Migration Act provisions defining “immigration assistance” and “immigration legal assistance”. On the facts described, the visa-application and cancellation-review services were immigration assistance provided by Wong as a registered migration agent, rather than legal services provided in his capacity as a lawyer (Charges 2 and 3, paras 5-6). That characterisation did not resolve the jurisdiction issue.
The Tribunal then turned to the scope of Chapter 4 of the 2004 Act. It noted that the chapter applied to conduct occurring in Victoria, that a person could make a disciplinary complaint about a practitioner’s conduct, and that the Commissioner was required to investigate disciplinary complaints. It also referred to the power to investigate conduct even without a complaint. The Tribunal considered that “conduct” in the relevant provisions was not confined to conduct in the course of legal practice, and that the definition of professional misconduct was not so confined either (Charges 2 and 3, para 7).
The respondent’s argument depended on an implied limitation: that the Commissioner could investigate Wong’s migration-agent conduct only if MARA referred it. The Tribunal accepted that s 319 of the Migration Act supported the idea of a single disciplinary process in some circumstances, because when MARA refers an agent’s conduct to a lawyer-discipline authority, MARA cannot take action against the agent on the basis of that conduct. But the Tribunal found no corresponding express restriction on the Commissioner. It also considered that requiring a MARA referral could undermine the 2004 Act’s disciplinary scheme and its purposes, including protecting consumers and the public. The Migration Agents Code of Conduct was consistent with that view because it said the Code was not intended to displace other common law or statutory duties or liabilities (Charges 2 and 3, paras 12-18). The Tribunal therefore held that the two complaint mechanisms could operate in parallel.
Before and after state of the law
The judgment’s stated legal setting was the interaction between two statutory regimes: Chapter 4 of the Legal Profession Act 2004 (Vic), governing discipline of legal practitioners, and the Migration Act 1958 (Cth), governing registered migration agents. The question was not whether the migration-agent regime existed, but whether it implicitly prevented the legal profession regulator from investigating a practitioner’s conduct where that same conduct related to migration services.
Before the Tribunal’s determination, Wong’s position was that MARA’s process governed the Wang complaint and that the Commissioner needed a referral under s 319 before investigating him. The Tribunal accepted that the migration services were provided as a registered migration agent, but did not accept that this status removed the Commissioner’s investigative authority. It read the 2004 Act’s references to “conduct” broadly enough to include conduct outside the course of legal practice, and found no implied exclusion of the Commissioner’s powers.
The immediate result was that, for the matter before it, the Commissioner could investigate the Wang complaint notwithstanding the migration-agent complaint process. The decision also confirms, on its own facts, that non-compliance with information and document requests may constitute professional misconduct where the failures are repeated and hinder a statutory investigation.
The judgment should not be read as deciding every question about the boundary between legal-practitioner regulation and migration-agent regulation. It did not decide the merits of Wang’s underlying complaint about fees, communications, service or refund. Nor did it determine that every request made by a regulator must be complied with in all circumstances. Its holding concerned the particular statutory provisions and argument before the Tribunal.
Key passages with plain-English translation
The Tribunal said that “[t]he word ‘conduct’ in ss 4.1.4, 4.2.4 and 4.4.7 is not confined to conduct occurring in the course of legal practice” (Charges 2 and 3, para 7). In plain English, the Tribunal did not treat the regulator’s jurisdiction as limited to a lawyer’s work performed strictly as legal practice. The practitioner’s conduct could fall within the disciplinary scheme even if it occurred in another professional capacity.
The Tribunal described the central issue as whether the Migration Act’s complaint process prevented the Commissioner from investigating the same conduct. It found no express limitation on the Commissioner and concluded that the two mechanisms “may operate in parallel” (Charges 2 and 3, paras 8 and 18). In plain English, the existence of a migration-agent complaint process did not, by itself, displace the legal-profession regulator’s powers.
On the Leong investigation, the Tribunal stated that practitioner investigations were “an important means of protecting the public” (Charge 1, para 20). It then linked Wong’s failure to respond with an adverse effect on the Commissioner’s ability to investigate expeditiously. The practical significance is that cooperation with an investigation was treated as part of the effective operation of public-protection regulation, not as an isolated correspondence issue.
The Tribunal also explained its penalty approach. It described professional discipline as primarily protective, while acknowledging that sanctions are also punitive and that sentencing principles apply by analogy (Disposition, paras 1-3). In plain English, the Tribunal considered both the protection of the public and the deterrent and punitive effects of sanctions when selecting an order.
What fact patterns trigger this precedent
The decision is most directly relevant to fact patterns involving a legal practitioner who is also a registered migration agent, where a complaint about migration-related services is being considered under more than one regulatory scheme. The key feature is not simply dual registration. It is the statutory question whether the legal profession regulator’s powers are displaced by the migration-agent complaints process. The Tribunal’s answer depended on its reading of the provisions cited in this judgment, including the absence of an express restriction on the Commissioner and the stated purposes of Chapter 4.
The case is also relevant where a practitioner repeatedly fails to provide explanations, files or account records requested in a disciplinary investigation. In Wong, the requests were repeated over an extended period, warnings were given, and some material remained outstanding after proceedings had begun. The Tribunal emphasised the effect of that non-response on the regulator’s ability to investigate. A lawyer assessing another fact pattern would need to check the relevant statutory provisions, the precise wording and basis of the regulator’s requests, what was supplied and when, any explanation for delay, and the effect on the investigation. The judgment does not establish that all non-compliance necessarily amounts to professional misconduct.
How later courts have treated it
The supplied judgment does not discuss any later decisions treating Legal Services Commissioner v Wong. It therefore provides no source-grounded basis to say whether later courts or tribunals have followed, distinguished, limited or overruled it.
The decision itself refers to earlier authorities. It cites Hannebery v Legal Ombudsman for the protective character of disciplinary orders, and Quinn v Law Institute of Victoria Limited for the proposition that disciplinary sanctions are also punitive and sentencing principles apply by analogy. It refers to Wong v Wang (Legal Practice) as an earlier VCAT decision concerning the relationship between Wang and Wong, but notes that the issue before that member arose under the Fair Trading Act and that it was not clear whether the professional relationship had been the subject of detailed submissions. It also considers Legal Services Commissioner v Morgan as an example of a similar proposed cancellation order, but ultimately declines cancellation in Wong’s case.
Those references explain the authorities available to the Tribunal at the time. They do not establish how later courts have treated this decision. Any account of subsequent treatment would require sources beyond the judgment provided here.
Still-open questions
The judgment leaves open the precise limits of the Commissioner’s jurisdiction in circumstances different from those before it. The Tribunal’s reasoning concerned a registered migration agent who was also a legal practitioner, conduct in Victoria, and the interaction of the specific statutory provisions cited. It did not set out a general test for every instance of overlapping professional regulation.
The decision also does not resolve how the two regulatory bodies should coordinate investigations in practice, or how any potential duplication of process should be managed. The Tribunal concluded that the processes could operate in parallel, but did not detail procedures for information-sharing, sequencing or avoiding inconsistent outcomes.
Another question is how the distinction between unsatisfactory professional conduct and professional misconduct should be applied to different forms of non-response. The Tribunal stated that the distinction is usually a matter of degree and found professional misconduct on the facts of Wong’s three charges. It did not provide a comprehensive list of factors for other cases. The repeated nature of the requests, prior warnings, the outstanding material and the effect on the investigation were important in its reasoning.
Finally, the Tribunal’s penalty decision was fact-specific. It considered prior findings, practice changes, partial compliance, admissions, the timing and significance of those admissions, and the impact of disposition orders on Wong’s migration-agent registration. It declined cancellation and imposed fines, production orders and costs. The judgment does not establish that the same penalty would apply where those circumstances differ.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Judgment (40 paragraphs)
[1]
Legal Services Commissioner v Wong (Legal Practice) [2009] VCAT 318 (2 March 2009)
[2]
Legal Profession Act2004 - s 4.4.11 - failure to provide a written explanation of conduct and documents to the Commissioner and the LIV - professional misconduct fine and costs.
[3]
Legal Services Commissioner v Wong (Legal Practice) [2009] VCAT 318
The Respondent is to respond to the Commissioner's requests for information and documents relating to the Leong complaint by no later than 4pm on Monday 23 March 2009.
In relation to the Wang complaint the Respondent is to provide the Commissioner with a full written explanation of his conduct and a copy of the relevant trust account ledger, by no later than 4pm on Monday 23 March 2009.
The Respondent is to pay a fine of $4500 to the Legal Services Board by no later than 4pm on Monday 23 March 2009.
The Respondent is to pay the Commissioner's costs in respect of both matters, to be taxed on County Court Scale 'D' in default of agreement, by no later than 4pm on Monday 23 March 2009..
[5]
Mr Jonathan Wong (the practitioner or the Respondent) is a sole practitioner practising as Jonathan Wong Lawyers at 124 Little Lonsdale Street, Melbourne, Victoria. He has practised as a legal practitioner for about 25 years.
Three charges have been brought against Mr Wong by the Legal Services Commissioner (the Commissioner). The first charge ('Charge 1') (J208/2008) is of professional misconduct within the meaning of s 4.4.3 of the Legal Profession Act2004 (the 2004 Act). It is alleged that Mr Wong contravened s 4.4.11(1)(b) of that act by failing to comply with a request of the Commissioner for the provision of information and documents relating to a disciplinary complaint made by Mr Vi Kit Leong and Mrs Maria Rosa Leong on 15 August 2006 (the Leong complaint).
Mr and Mrs Leong had instructed Mr Wong in relation to sale of a property in Epping and related mortgage matters. Their complaint concerns the services Mr Wong claimed to have supplied, the costs relating to those services and delay in settlement and consequential pecuniary loss.
The second and third charges (Charges 2 and 3) (J215/2008) arise from a complaint dated 13 March 2008 made by Mr Chuan (Charles) Wang (the Wang complaint).
Charge 2 is of professional misconduct in that it is alleged that the practitioner contravened s 4.4.11(1)(a) of the 2004 Act by failing to comply with requests by the Law Institute of Victoria (the LIV) and the Commissioner to provide a full written explanation of his conduct regarding the disciplinary complaint made by Mr Wang.
Charge 3 is also related to the Commissioner's investigation of the Wang complaint. The Respondent is charged with professional misconduct as a result of his failure to comply with the requests of the LIV and the Commissioner to provide his trust account ledger and file in relation to Mr Wang's matter.
Mr Wang had instructed the practitioner in relation to a migration matter and on 6 September 2007 paid him an initial amount of $1100 pending Mr Wang's decision on whether to proceed. The issues raised in the complaint concern the provision of a cost agreement and disclosure statement pursuant to the instructions, authority to transfer the funds to Mr Wong's office account, inadequate communication, delay, failure to provide professional service and the refusal of a refund.
[6]
The Commissioner received Mr and Mrs Leong's letter of complaint on 15 August 2006.
The Commissioner first wrote to Mr Wong in respect of this complaint on 29 August 2006. Mr Wong responded to this correspondence on 9 October 2006. The Commissioner made a number of further requests for information relating to the complaint. The Commissioner wrote to Mr Wong on 16 October, 13 November and 5 December 2006; and again on 8 and 24 January, 8 February, and 1 and 27 March 2007. The practitioner eventually replied to this correspondence, on 19 April 2007 and supplied some, but not all, of the documents which had been sought by the Commissioner.
By letter dated 13 March 2008 the Commissioner required Mr Wong to provide her with specified information and documents within 16 days. The material requested included all trust and office ledgers for all matters concerning the complainants; answers to queries in relation to apparent discrepancies between invoices; the practitioner's comments in relation to unsigned bills; and evidence of service upon the complainants of the outstanding bills for all matters.
By letter dated 18 April 2008 the Commissioner advised Mr Wong, among other things, that:
(i) his response to her letter of 13 March 2008 had not been received; and
(ii) that the Commissioner required Mr Wong to give this matter his immediate attention and provide her with the requested information and documents, within 16 days.
By letter dated 6 May 2008 the Commissioner advised Mr Wong, among other things, that:
(i) his response to her letters of 13 March and 18 April 2008 had not been received;
(ii) his failure to provide her with information and documents may constitute a breach of the provisions of the Act and may thereby amount to professional misconduct; and
(iii) that she required him to give this matter his urgent attention and provide her with the requested information and documents within 16 days.
The Commissioner sent a further letter dated 8 July 2008 detailing the nature of the complaint by Mr and Mrs Leong and affording Mr Wong the opportunity to make submissions on whether the complaint should be treated as a disciplinary complaint and whether or not the complaint should be summarily dismissed.
[7]
The Commissioner received Mr Wang's complaint on 19 March 2008.
By letter dated 21 May 2008 she notified Mr Wong of the nature of the complaint and afforded him the opportunity to make submissions as to whether the complaint should be treated as a disciplinary complaint and whether or not it should be summarily dismissed.
Not having received a response to the letter of 21 May 2008 the Commissioner decided that the complaint was a disciplinary complaint and that there were no grounds to summarily dismiss the complaint.
She referred the complaint to the LIV for investigation. The LIV is a prescribed investigatory body under Division 3 of Part 4.4 of the 2004 Act.
By letter dated 11 July 2008 Ms Elpiniki Emmanuel of the LIV required Mr Wong to provide her with a full written explanation of his conduct in relation to the subject matter of the complaint, within 16 days. In that letter she also required the practitioner to provide her with a copy of his trust account ledger in this matter, within 16 days.
By letter sent by registered mail and dated 7 August 2008 Ms Emmanuel then advised Mr Wong that, among other things:
(i) His response to her request by the letter dated 11 July 2008 had not been received; and
(ii) that she required Mr Wong to give this matter his immediate attention and provide her with a written explanation in relation to the subject matter of the complaint, within 16 days.
Mr Wong telephoned Ms Emmanuel on 28 August 2008. He confirmed that he had received her letters dated 11 July and 7 August 2008 and that he would send by facsimile his full written explanation.
Later on the same day Mr Wong again telephoned Ms Emmanuel to confirm that he would fax through his full written explanation that day.
Ms Emmanuel did not receive a letter from Mr Wong and subsequently referred the matter back to the Commissioner.
By letter dated 25 September 2008 the Commissioner advised Mr Wong, among other things, that:
[8]
(a) his failure to provide the LIV with a full written explanation of his conduct and the requested trust account ledger may constitute a breach of the provisions of the Act and may thereby amount to professional misconduct;
[9]
(b) she required him to give this matter his urgent attention and provide her with a full written explanation of his conduct within 16 days; and
[10]
(c) that she required his trust account ledger and his file in relation to Mr Wang's matter within 16 days.
[11]
By the date of the Commissioner's application to this Tribunal dated 14 November 2008, Mr Wong had:
[12]
(a) failed to provide the Commissioner or the LIV with any written explanation of his conduct;
[13]
(b) failed to provide the Commissioner or the LIV with a copy of his trust account ledger and his file in this matter; and
[14]
(c) failed to respond to the letters detailed above.
[15]
The facts outlined above are admitted by the practitioner but it is submitted that at all material times the Commissioner was acting without jurisdiction to compel the practitioner to respond to her requests and hence the practitioner was not required to respond. It is contended that there is no power to compel a practitioner to provide information relating to an investigation which has proceeded on an erroneous basis.
The essence of the Respondent's jurisdictional argument is that the Wang complaint relates to services provided by the practitioner in his capacity as a 'registered migration agent' pursuant to the Migration Act1958 (Cth) (the Migration Act) and not in his capacity as a legal practitioner. It is said that the Respondent's conduct as a migration agent is regulated by the Migration Agents Code of Conduct (the Code) which is given legal force by Schedule 2 of Regulation 8 of the Migration Agents Regulations1998 (Cth) and s 314(1) of the Migration Act. The Code sets out the professional and ethical standards governing agents, including in relation to fees charged and the keeping of records. It also contains a procedure for dealing with complaints made to the Migration Agents Registration Authority (MARA). It is submitted that the complaints procedure in the and the Code regulates the respondent's conduct in relation to Mr Wang and not the 2004 Act.
[16]
"(1) The Migration Agents Registration Authority may refer to an authority responsible for disciplining lawyers the conduct of a registered migration agent, or a former registered migration agent, who holds a practising certificate (however described) entitling him or her to practise as a lawyer.
[17]
(2) If the Migration Agents Registration Authority refers the conduct of a registered migration agent, it may not take action against the agent under section 303 on the basis of that conduct.
[18]
Note: Section 303 allows the Migration Agents Registration Authority to caution a registered migration agent or suspend or cancel a registered migration agent's registration.
[19]
(3) If the Migration Agents Registration Authority refers the conduct of a former registered migration agent, it may not take action against him or her under subsection 311A(1) on the basis of that conduct.
[20]
Note: Subsection 311A(1) allows the Authority to bar a former registered migration agent from being a registered migration agent for a period of not more than 5 years starting on the day of its decision."
[21]
Ms Shann, counsel for the Respondent, submits that the Commissioner can only investigate the Respondent's conduct where there has been a referral by MARA pursuant to s 319(1). It is said that absent such a referral the Commissioner has no power to investigate the Respondent's conduct.
There is some force in the submission advanced on behalf of the Respondent. Subsection 319(2) provides that if MARA refers the conduct of a migration agent to an authority responsible for disciplining lawyers then MARA is prohibited from taking any action against the person referred on the basis of that conduct. This provision suggests that the legislative scheme intends to provide a single discipline process. But, contrary to Ms Shann's submission, I am not persuaded that the Commissioner is precluded from investigating the conduct of a legal practitioner in circumstances where that conduct is also the subject of a complaint to MARA. Three matters have led me to this conclusion.
The first is that while the MARA is constrained from dealing with conduct which has been referred to the Commissioner there is no express converse constraint on the Commissioner, under either the Migration Act or the 2004 Act.
Second, the construction contended for would undermine the complaint investigation process in the 2004 Act.
The Commissioner's powers to investigate complaints against legal practitioners are contained in Chapter 4 of the 2006 Act. The purposes of Chapter 4 are:
[22]
"(a) to provide a scheme for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of legal services and the public generally;
[23]
(b) to promote and enforce the professional standards, competence and honesty of the legal profession;
(c) to provide a means of redress for complaints about the legal profession."[3]
[24]
If a referral from MARA was required before the Commissioner could investigate the conduct of a legal practitioner in his or her capacity as registered migration agent then such a scheme would clearly have the potential to undermine the objects of the 2004 Act_._ Absent a referral the Commissioner could not, if the Respondent's construction was accepted, investigate a practitioner's conduct even if that conduct could (if proven) established that the practitioner was not a fit and proper person to hold a practising certificate.
Indeed it would follow from the Respondent's submissions that absent a referral the Commissioner could not investigate a practitioner's conduct even if MARA had concluded that the practitioner was not a fit and proper person and cancelled his or her registration as a registered migration agent.
The adoption of such a construction could significantly compromise the Commissioner's capacity to administer the disciplinary scheme in Chapter 4 of the 2004 Act and as a consequence undermine the objective of protecting consumers of legal services and the public generally.
Finally, clause 1.9 of the Code also supports my conclusion. It states:
[25]
"The Code is not intended to displace any duty or liability that a registered migration agent may have under the common law, or the statute law of the Commonwealth, a State or a Territory, in relation to a matter covered by the Code. The provisions of the Code should be read in the light of this principle."
[26]
In my view the complaints mechanisms in the MigrationAct and in the 2004 Act may operate in parallel and the operation of the MARA complaints mechanism does not impliedly exclude the Commissioner's capacity to investigate a practitioner in respect of the same conduct.
For the reasons given I reject the Respondent's jurisdictional argument.
The Commissioner seeks findings of professional misconduct in respect of charges 2 and 3, and seeks an order cancelling the Respondent's practising certificate.
The Respondent submits that the circumstances do not warrant a finding of professional misconduct and opposes the making of an order cancelling his practising certificate. In addition to the matters set out at paragraph 23 of this decision Ms Shann submitted that at the relevant time the practitioner was busy responding to requests for information from the MARA. It seems that Mr Wang had also submitted a complaint to the MARA, which then conducted an investigation.
The fact that the practitioner was responding to requests from the MARA at the relevant time does not absolve him from his responsibility to provide the information sought by the Commissioner.
For the reasons set out at paragraph 31 to 36 I am satisfied that the practitioner's conduct (as set out in the particulars to charges 2 and 3) amounts to professional misconduct.
[27]
The Tribunal's powers to discipline legal practitioners for misconduct are primarily protective[4]. But its disciplinary orders are also punitive, as Maxwell P observed in Quinn v Law Institute of Victoria Limited (Quinn):
[28]
"The available sanctions are, by their nature, punitive, and the objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect."[5]
[29]
His Honour also said that because the Tribunal's disciplinary jurisdiction is punitive, in the service of protecting the public, the principles applicable to sentencing apply by analogy.
In sentencing generally it is necessary to balance just punishment; specific and general deterrence; denunciation; the protection of the community; and rehabilitation.[6]
Specific deterrence is directed at the particular offender. The concept of general deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence.
Sections 4.4.17, 4.4.18 and 4.4.19 of the 2004 Act set out the penalties which may be imposed if the Tribunal finds a legal practitioner guilty of professional misconduct. The type of orders that are available include:
the suspension or cancellation of the practitioner's practising certificate;
the imposition of a fine not exceeding $50,000;
an order reprimanding the practitioner;
an order that the practitioner undertake a specified course of further legal education; or
an order that the practitioner seek advice in relation to the management of the practitioner's practice from a specified person.
Mr Wong has been found guilty of three instances of professional misconduct. The parties have asked that the Tribunal deal with the question of penalty on a global basis.
The Commissioner seeks the following orders:
(i) An order cancelling Mr Wong's practising certificate.
(ii) An order that Mr Wong supply the explanation and information requested within 16 days.
(iii) An order for costs.
In relation to the cancellation of Mr Wong's practising certificate the Commissioner submitted that the imposition of a fine would be inadequate because such a penalty had been imposed on Mr Wong in the past but had not deterred him from engaging in his current misconduct. In that regard the Commissioner relied on Mr Wong's prior convictions as set out in the table below:[7]
[30]
Failed to lodge an audit report of his trust accounts
[31]
Breach of Rule 6 of the Solicitors' (Professional Conduct & Practice) Rules
[32]
Deputy Registrar - Legal Profession Tribunal - TO628 of 2005
[33]
Breach of section 149 of the Legal Practice Act 1996
[34]
I note that two of the three convictions relied on occurred almost 20 years ago. However the more recent conviction, in November 2005, is particularly relevant because the nature of the misconduct in that matter is similar to the circumstances in the current proceedings.
The order sought in respect of the cancellation of Mr Wong's practising certificate is in similar terms to the order made by Member Butcher in Legal Services Commissioner v Morgan[8]. In essence such an order would cancel Mr Wong's practising certificate and provide that a practising certificate not be granted to him for a 3-month period but that such a period will be reduced to one month in the event that he complies with an order to supply the explanation and information requested by the Commissioner.
The Respondent opposes an order cancelling his practising certificate. Ms Shann submitted that Mr Wong's personal financial circumstances meant that a fine would address any need for specific deterrence.
Ms Shann also relied on the matters set out earlier (at paragraph 23) in mitigation. In relation to those matters I have had regard to the changes which Mr Wong has made to his practice since the events which led to these proceedings took place. I have also taken into account his partial compliance with the Commissioner's requests.
Ms Shann also submits that the Tribunal should have regard to the admissions made by Mr Wong and to the impact that any disposition will have on his registration as a migration agent.
Mr Wong admitted the facts relied on by the Commissioner in support of the charges. This is a relevant mitigatory consideration and I have taken it into account. However I have not given this consideration substantial weight in this case because:
while Mr Wong admitted the facts he did not admit the offences with which he was charged;
the admissions were made relatively late in the proceedings; and
I am not persuaded that the admissions made reflect remorse or insight on the part of the practitioner.
I have also had regard to the impact of the orders I propose to make on Mr Wong's registration as a migration agent.
In sum, in considering the question of penalty I have had regard to the nature of the misconduct, the previous disciplinary findings, the admissions made in the proceedings and the impact of disposition orders on the practitioner.
The Tribunal found Wong guilty of three instances of professional misconduct, ordered him to provide the requested information and documents by 4 pm on 23 March 2009, imposed a $4,500 fine, and ordered him to pay the Commissioner’s costs, taxed on County Court Scale D if not agreed. It did not cancel his practising certificate.
I deal with these charges in turn.
No submissions were received from Mr Wong within the required time frame and accordingly the Commissioner made a determination that the complaint was a disciplinary complaint and that there were no grounds to summarily dismiss the complaint. By letter dated 30 July 2008 the Commissioner again requested information and documents relating to the Leong complaint.
On 1 August 2008 a member of the Commissioner's staff, on her behalf, spoke to Mr Wong by telephone and advised him that the Commissioner required his response as soon as possible.
In a letter dated 19 August 2008 the Commissioner advised Mr Wong, among other things, that:
(i) his response to her request by letter of 30 July 2008 had not been received; and
(ii) that she required Mr Wong to give this matter his immediate attention and provide her with the requested information and documents within 16 days.
Mr Wong received this letter on 21 August 2008.
Mr Wong failed to provide the Commissioner with the information and documents sought and had not responded to the letters detailed above by 20 October 2008. The Commissioner then applied to the Tribunal, pursuant to s 4.4.13(2) of the 2004 Act, for an order under Division 4 of Part 4.4.
Since the commencement of these proceedings Mr Wong has provided the Commissioner with the trust and office ledgers sought but has still failed to provide the Commissioner with a written explanation of his conduct in relation to the complaint.
The facts outlined above are admitted by the practitioner.
The Commissioner seeks a finding of professional misconduct in relation to the practitioner's lengthy and extensive failure to respond to the Commissioner's correspondence and seeks an order cancelling the Respondent's practising certificate.
The Respondent submits that the circumstances do not warrant a finding of professional misconduct and opposes the making of an order cancelling his practising certificate. The following points are advanced in support of the Respondent's position:
Mr Wong has partially complied with the Commissioner's requests in that he has supplied the trust and office ledgers sought.
The employee solicitor who was dealing with the matter which is the subject of this complaint has since left Mr Wong's employ.
Mr Wong has made a number of changes to his practice since the events which led to these proceedings took place. In particular he has engaged additional support staff and a bookkeeper so that he is better able to manage his practice.
Some of the prior convictions relied on by the Commissioner are over 20 years old and need to be considered in the context of a professional career spanning almost 25 years.
Mr Wong has admitted the facts relating to the charge and such admissions can go to the demonstration of remorse and should be taken into account in mitigation.
A finding of professional misconduct and the cancellation of Mr Wong's practising certificate would have a significant adverse effect on Mr Wong. He has a wife and two dependent children. In addition to the payment of private school fees he has to service a substantial mortgage. It is also submitted that the outcome of these proceedings may adversely impact on Mr Wong's registration as a migration agent.
The conduct in question is in contravention of s 4.4.11 of the 2004 Act and is conduct which is capable of constituting unsatisfactory professional conduct or professional misconduct.
Whether the conduct of a practitioner amounts to misconduct or unsatisfactory conduct will usually be a matter of degree.
The Respondent's prior convictions, his admissions and the changes he has made to his practice are relevant to the determination of an appropriate penalty and I deal with them later. I have had regard to the other matters relied on by the Respondent in deciding whether the conduct constitutes professional misconduct.
The practitioner has failed to respond to the Commissioner's repeated requests for information. The practitioner was also put on notice that the failure to provide the Commissioner with the information and documents requested may constitute a breach of the 2004 Act and hence amount to professional misconduct. Despite all this, and the institution of these proceedings, the practitioner has still failed to provide the Commissioner with the information requested.
The ability to undertake investigations into the conduct of legal practitioners is an important part of the regulatory regime established by the 2004 Act and hence an important means of protecting the public. By his conduct Mr Wong has adversely affected the Commissioner's ability to comply with her statutory obligation to conduct an expeditious investigation of the Leong complaint.
For these reasons I am satisfied that his conduct amounts to professional misconduct.
Consistent with the position taken by the parties I propose to address the question of penalty globally and deal with this issue later.
The Commissioner contends that the conduct the subject of her investigation was conduct occurring in the course of legal practice. The Commissioner relies on the following matters in support of this contention:
correspondence from the practitioner to the complainant appears on letterhead of the legal practice;
the purported Costs Agreement provided by the practitioner demonstrates the practitioner's understanding that he provided, or intended to provide, legal services to the complainant;
there has been no attempt by the practitioner to assert that the migration business was a business operated concurrently but separate from the legal practice for the purpose of rule 32 Professional Conduct and Practice Rules 2005; and
the Tribunal has previously considered the issue and concluded that the "relationship between the [complainant] and the [practitioner] is one of lawyer and client": Wong v Wang (Legal Practice)[2008] VCAT 401 (17 March 2008) per Member Butcher at paragraph 4. (I note that the claim before Member Butcher was made under the Fair Trading Act 1999 (Vic) and it is not clear whether the nature of the parties' professional relationship was the subject of any detailed submissions.)
I am not persuaded that any of the matters relied on by the Commissioner, either individually or in combination, are determinative. The relevant legislative framework is a surer guide to the proper characterisation of the services provided by the Respondent to Mr Wang than the descriptors adopted by the participants. As his Honour Gray J observed, albeit in a different context, 'the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck'.[1]
It is common ground that the Respondent is a registered migration agent. It is also clear from the costs agreement between the Respondent and Mr Wong that the services provided by the Respondent related to the lodgement of a visa application and advice regarding a cancellation review application. Services of this type constitute 'immigration assistance' within the meaning of s 276 of the Migration Act. Persons who are not registered migration agents are prohibited from giving 'immigration assistance' (s 280(1)). Further, while a lawyer may provide 'immigration legal assistance', the definition of that term in s 277 of the Migration Act expressly excludes the provision of services of the type provided by the Respondent to Mr Wang.
Based on the provisions of the Migration Act to which I have referred I find that the services provided to Mr Wang were provided by the Respondent in his capacity as a registered migration agent and not in his capacity as a legal practitioner. But that is not the end of the matter.
Section 4.1.4 of the 2004 Act makes it clear that Chapter 4 applies to 'conduct' occurring within Victoria. Section 4.2.4 provides that any person may make a disciplinary complaint about the 'conduct' of an Australian legal practitioner and s 4.4.7 requires the Commissioner to investigate each disciplinary complaint. Indeed the Commissioner may investigate the conduct of an Australian legal practitioner even though no complaint has been made about that conduct[2]. The word 'conduct' in ss 4.1.4, 4.2.4 and 4.4.7 is not confined to conduct occurring in the course of legal practice. Nor is the definition of professional misconduct confined to conduct occurring in the course of legal practice. It is clear from the foregoing that the Commissioner's powers are not limited to the investigation of conduct occurring in the course of legal practice.
The issue for determination is whether the process in the Migration Act for dealing with complaints against registered migration agents prevents the Commissioner from investigating the same conduct in circumstances where the migration agent is also a legal practitioner. There is no such express limitation in the 2004 Act so the question becomes whether such a limitation arises by implication.
The Respondent contends that there is an implied prohibition on the Commissioner investigating the Wang complaint and he relies on, among other things, s 319 of the Migration Act.
Section 319 provides that the MARA may refer the conduct of a registered migration agent, who holds a practising certificate entitling him or her to practise as a lawyer, to an authority such as the Commissioner. The section states:
I am not persuaded that the circumstances warrant an order cancelling Mr Wong's practising certificate and I propose to impose a monetary penalty.
I will order the payment of a find of $1000 in respect of charge 1, $1500 in relation to charge 2 and $1500 in relation to charge 3.
I also note that by letter dated 18 February 2009 Ms Shann advised the Tribunal that the Respondent has enrolled in a half day CPD course entitled 'Compliance'. In the circumstances I do not propose to order that the practitioner undertake any additional CPD units.
The Commissioner also seeks an order for the payment of costs.
In circumstances where the Tribunal has found a practitioner guilty of unsatisfactory professional conduct or professional misconduct it must make an order requiring the practitioner to pay the Commissioner's costs unless 'satisfied that exceptional circumstances exist'[9]. I am not satisfied that there are any exceptional circumstances in this case and I propose to make an order for the payment of costs in the sum sought by the Commissioner.
I will also make orders for the production of the information and documents requested by the Commissioner.