(a) The answer to Question 1 is no

(b) The answer to Question 2(a)(i) and (ii) is no.

(c) The answer to Question 2(b) is no.

(d) Question 3 is not applicable.

(e) Question 4 is not applicable.

1. Until 16 October 2023, Nick Marcevski was a practising lawyer and the sole legal director of Marcevski Lawyers Pty Ltd, a small incorporated law firm specialising in criminal defence work.
2. On 3 March 2021, the Victorian Legal Services Board (the Board) received an intelligence report from Detective Acting Sergeant Bothma of the Trident Taskforce about Marcevski Lawyers. The report stated:

Intelligence received suggests Nick Marcevski, from Marcevski Lawyers, facilitate [sic] financial transactions through his trust account by criminal entities. It is unknown if he receives any benefit.

1. Two weeks later, the Board appointed a forensic accountant, Ms Elizabeth Camillo, to conduct an external trust records investigation into Marcevski Lawyers. This investigation continued for over two years. As part of the investigation, Ms Camillo obtained numerous trust documents and other financial records from either Mr Marcevski or Marcevski Lawyers.[1]
2. On 15 June 2023, Ms Camillo required Mr Marcevski to attend an oral examination conducted under s 383 of the Legal Profession Uniform Law (Uniform Law).[2] This oral examination was recorded and transcribed.
3. On 15 September 2023, the Board sent a letter to Mr Marcevski notifying him that its preliminary view was that it should cancel his practising certificate and decide that he was not entitled to apply for a practising certificate until 22 September 2028.
4. The reasons for the Board's preliminary view are encapsulated in the following passage of this letter:

An ongoing investigation into your trust accounting practices has uncovered several money-handling processes that, when considered in combination and in light of your failure to provide candid and credible explanations, lead to a strong inference that you were in effect aiding alleged criminal clients in evading statutory reporting mechanisms in respect of the movement of funds, and that your conduct in that regard was undertaken intentionally, recklessly, or with wilful blindness as to both the illegitimate nature of the conduct that was occurring and your disregard of professional obligations in respect of it.

Further to the above, you were extensively questioned in an examination under affirmation on 15 June 2023 (discussed in greater detail below). Several of the answers given over the course of this examination, and your demeanour in doing so, when viewed in light of the objective facts, give support to an inference that your conduct during that examination lacked candour and was in substance dishonest.

The above two factors support a conclusion that you are unable to meet the inherent requirements of an Australian legal practitioner, in that you appear unable to meet the inherent requirement to obey the law, and the inherent requirement to uphold the administration of justice, including the obligation of honesty.

1. The letter gave Mr Marcevski an opportunity to respond in writing.
2. On 16 October 2023, having considered Mr Marcevski's response, the Board informed Mr Marcevski that it had:

(a) cancelled his Australian practising certificate on the basis that it reasonably believed that Mr Marcevski was unable to fulfil the inherent requirements of an Australian legal practitioner within the meaning of s 82(1)(d) of the Uniform Law; and

(b) decided that he was not to be entitled to apply for a practising certificate until 22 September 2028 under s 94 of the Uniform Law.

1. The Board said its decision was made "in substance for the reasons outlined in the preliminary view letter".
2. Mr Marcevski has asked VCAT to review the Board's decision under s 100 of the Uniform Law.[3] When exercising its review jurisdiction, VCAT has all the functions of the original decision-maker and may affirm, vary, set aside and remake the decision or set aside and remit the decision.[4] VCAT's obligation "is to make the correct or preferable decision after considering the merits of the evidence adduced and submissions made before it".[5]
3. Section 82(1)(d) of the Uniform Law empowered the Board[6] to cancel Mr Marcevski's practising certificate on the ground that it "reasonably believes that [he] is unable to fulfil the inherent requirements of an Australian legal practitioner". If it did so, s 94 of the Uniform Law empowered the Board to decide that Mr Marcevski was not entitled to apply for a practising certificate for a specified period not exceeding 5 years.
4. Mr Marcevski says that the Board's power (and therefore also VCAT's power) to cancel a practising certificate under s 82(1)(d) is limited to situations where a practitioner is unable, by reason of mental or physical health, to fulfil the inherent requirements of an Australian legal practitioner. He says that the power to cancel under s 82(1)(d) is not available where the Board believes that a practitioner is dishonest or otherwise unlikely or unwilling to fulfil the requirements of an Australian legal practitioner. As there was no evidence Mr Marcevski was mentally or physically unwell, he says his practising certificate could not be cancelled under s 82(1)(d).
5. Mr Marcevski also says that the Board (and therefore also VCAT) is not entitled to have regard to documents or information which he was required to be produce or disclose using the compulsory powers in the Uniform Law. He says almost all the documents and information obtained by Ms Camillo during her investigation were obtained (either directly or indirectly) using these compulsory powers. He relies upon s466(4) of the Uniform Law which states, in relation to documents and information obtained under ss 154, 348, 370, 371, 375(1)(j) or Part 7.4 of the Uniform Law:

(4) Any information, document or other thing obtained as a direct or indirect consequence of a person complying with the requirement is admissible against the person in proceedings or procedures -

(a) for making a false or misleading statement; or

(b) for an offence against this Law; or

(c) relating to a disciplinary matter -

but is not otherwise admissible in evidence against that person.

1. The final hearing of Mr Marcevski's application for review is listed for 1 December 2025. However, given the issues raised by Mr Marcevski above, the following questions were listed for determination before the final hearing:
   1. Whether the phrase 'unable to fulfil the inherent requirements of an Australian legal practitioner' within the meaning of s 82(1)(d) of the Legal Profession Uniform Law (Uniform Law) is confined to mean 'unable by reason of mental or physical ill-health'?

(i) an Australian practising certificate should be varied, suspended or cancelled on a ground specified in s 82 of the Uniform Law; > > (ii) a person should be restricted from applying for a certificate for a specified period not exceeding 5 years under s 94 of the Uniform Law (the Decision);

1. If yes to question 2(a) above, whether for the purpose of the Decision, the Board was entitled to have regard to the transcript and recording of the examination of the applicant conducted under s 383 of the Uniform Law on 15 June 2023 (the Recording and Transcript).

1. If yes to question 2(b) above, whether for the purpose of this Review, VCAT is entitled to have regard to the Recording and Transcript.

1. These reasons explain VCAT's answers to each of these questions.

Question 1 - Whether the phrase 'unable to fulfil the inherent requirements of an Australian legal practitioner' within the meaning of s 82(1)(d) of the Uniform Law is confined to mean 'unable by reason of mental or physical ill-health'?

1. Mr Marcevski said that Question 1 should be answered "yes". He contended that the phrase "unable to fulfil the inherent requirements of an Australian legal practitioner" was confined to mean "unable by reason of mental or physical ill-health".
2. He contended that "unable" should be given its natural and ordinary meaning and that "inability proper" could be distinguished from "disinclination".[7] As he explained it:[8]

a person is not regarded as 'unable' to do the right thing just because a reasonable belief has been arrived at that they have quite some years ago been very bad...unless some mental illness is the explanation for the misconduct and the inability not to repeat it.

1. He said that s 82(1)(d) provided a power to deal with the "extraordinary case of a practitioner whom the Board reasonably believes is actually unable to do the job of a lawyer any more by virtue of physical or mental ill health".[9] He said that this approach:

a) best furthered the purposes of the Uniform Law, particularly the "efficient, effective, targeted and proportionate regulation of the profession"';[10] > > b) was consistent with the explanatory memorandum, which linked the power to health issues; > > c) best protected common law and Charter rights; > > d) was most consistent with the history of statutory regulation of the legal profession; and > > e) best respected the structure provided in the Uniform Law for regulation of the profession, including the specific provision for cancellation by VCAT following a disciplinary prosecution and the procedural safeguards inherent in that process.

2. He said that in its decision, the Board had incorrectly equated the phrase "unable to fulfil the inherent requirements of a legal practitioner" with "is not a fit and proper person".
3. Further, he maintained that, even if not limited specifically to circumstances of mental or physical ill-health, s 82(1)(d) was only available where the Board reasonably believed that the practitioner was "actually unable" to fulfil the inherent requirements of a legal practitioner. A finding that a practitioner was unwilling or unlikely (based on past behaviour) to fulfil the inherent requirements of a legal practitioner could not be the basis of a reasonable belief that the practitioner was "unable" to fulfil the inherent requirements of a legal practitioner.
4. Finally, he contended that honesty was not one of the inherent requirements of a legal practitioner.
5. The Board said that Question 1 should be answered "no". It said that the words "by reason of mental or physical ill-health" did not appear anywhere in s 82(1)(d). It contended that if Parliament had intended such a limitation, it could have readily done so. Further, it said that to confine the section in such a way would be inconsistent with the purpose of the Uniform Law as expressed in s 3, which it paraphrased as "to promote a consistent, efficient and effective Australian legal profession by enhancing the protection of clients and the public, promoting competence and ethical standards".[11] It described s 82 as a new power enacted as part of the Uniform Law which was, broad and summary in its nature and separate and additional to the regime for disciplinary matters in Chapter 5 of the Uniform Law.
6. In relation to the word "unable" it said that this was a word "of variable rather than rigid or narrow meaning",[12] referring to the following passage of Cussen J in Leeder v The Mayor, etc., of the Town of Ballarat East:[13]

"Sometimes, where it is used with reference to a person, it connotes an act or series of acts which no human being could do; sometimes an act or series of acts which the particular person referred to could not in any circumstances do; sometimes an act or series of acts which this person could not in existing circumstances do; and sometimes an act or series of acts which in existing circumstances this person could do if he directed his mind to nothing else, but which, having regard to other circumstances, he could not reasonably be expected to do. It therefore sometimes involves a comparison of the various circumstances influencing action or inaction. If the contemplated action and its consequences are of trifling importance, very little may be sufficient to induce a person to say that he is unable to do it."

1. It adopted the list of inherent requirements of a legal practitioner described by Davies J in MN Legal and Management Consultants v The Council of the Law Society of New South Wales as follows:[14]

(a) the ability to perform the day-to-day tasks associated with providing legal services, including the ability to communicate in a professional manner with the courts, law-enforcement agencies and other legal practitioners;

(b) the ability to discharge the legal practitioner's tortious and fiduciary duties to his or her clients, whether arising under their retainer, in tort or in equity;

(c) the ability to discharge the legal practitioner's duties to the Court, including:

1. the duty to be honest and courteous in all dealings in the course of legal practice...;
2. the duty not to engage in conduct, in the course of practice or otherwise, which is likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice, or bring the profession into disrepute...;
3. the duty not to knowingly or recklessly mislead the court...;
4. the duty not to allege any matter of fact in any court document settled by the solicitor, or any submission during any hearing, unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so...;
5. the duty not to communicate in the opponent's absence with the court concerning any matter of substance in connection with the current proceedings...

...

To those matters there would need to be added an obligation to obey the law and to comply with court orders.

When one considers the matters listed by Davies J, it is plain that a reasonable belief may be formed that a person is 'unable' to fulfil those requirements for reasons that are beyond (or additional to) mental or physical ill-health, including (for example) lack of education, competence, character or integrity. The meaning of the relevant concept of 'inherent requirements' supports the conclusion that the paragraph should not be confined to those instances where the person is unable to do so 'by reason of mental or physical illness....

...A reasonable belief that a person is unable to fulfil a requirement may arise where the practitioner's character, as evident from his or her prior conduct, demonstrates that they would not, when called upon, discharge the critical duties imposed on practising lawyers. There may be any number of reasons why a person has such an inability, and there is nothing in the phrase 'unable to fulfil' that indicates those words were intended to be read down to mean only unable by reason of mental or physical ill-health.'

1. The full High Court in Palmanova Pty Ltd v Commonwealth of Australia (S147-2024) recently re-affirmed the modern approach to statutory interpretation in Australia as being one of attributing meaning to the statutory text, having regard to its context and purpose:[16]

Statutory construction is the process of attributing meaning to statutory text. The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose - being what the provision is designed to achieve in fact - insofar as that purpose is discernible from the statutory text and context. In the construction of a provision of a Commonwealth statute, the meaning that would best achieve the statutory purpose so discerned is to be preferred to each alternative meaning

1. I will turn first to the text of s 82(1)(d) in its immediate context.
2. Section 82(1)(d) is in Division 3 of Part 3.5 of the Uniform Law. Part 3.5 addresses the circumstances in which the Board has the power to vary, suspend, cancel or refuse to renew a practising certificate. Division 3 concerns "Variation, suspension or cancellation on specific grounds". The "specific grounds" covered by Division 3 are enumerated in s 82(1) and (2):[17]

82 Grounds for action under this Division

(1) The designated local regulatory authority may vary, suspend or cancel a certificate under this Division on the ground that -

(a) the holder has contravened a condition of the certificate; or

(b) the holder has failed without reasonable excuse to comply with a requirement under Chapter 7 made in connection with an investigation of the holder in connection with this Chapter or has committed an offence under Chapter 7 in connection with any such investigation; or

(c) a local regulatory authority has made a recommendation to that effect under section 278, 299(1)(g) or 466(7); or

(d) in the case of an Australian practising certificate - the designated local regulatory authority reasonably believes that the holder is unable to fulfil the inherent requirements of an Australian legal practitioner.

(2) The designated local regulatory authority may vary or suspend a certificate under this Division (if it considers it appropriate to do so having regard to the seriousness of the offence concerned and to the public interest) on the ground that the holder has been charged with a serious offence, a tax offence or an offence specified in the Uniform Rules for the purposes of this section and -

(a) the charge has not been determined; or

(b) the holder has been convicted of the offence but proceedings taken or likely to be taken in relation to the offence have not been concluded...

1. Sections 83 and 84 then prescribe the procedure to be followed by the Board:

83 Local regulatory authority to give notice before acting under this Division

If the designated local regulatory authority considers that a certificate should be varied, suspended or cancelled on a ground specified in section 82, it must give the holder notice in writing -

(a) stating that it proposes to take that action and the ground or grounds for the proposed action; and

(b) if it proposes to vary or suspend the certificate, stating the proposed variation or period of suspension, as the case requires; and

(c) inviting the holder to respond in writing to the designated local regulatory authority within a specified period (not being less than 7 days nor more than 28 days after the notice is given) as to why the proposed action should not be taken.

84 Action taken after giving notice

If the designated local regulatory authority -

(a) has given notice under section 83 to the holder of a certificate of its proposed action; and

(b) the time specified in the notice for a response from the holder has expired -

it may, after considering any response made by the holder, by notice in writing given to the holder, take the proposed action or take less onerous action that it considers appropriate.

1. Thus, Part 3.5 provides the Board with an expedited (requiring as little as 7 days' notice) and summary (in the sense that the practitioner need only be given an opportunity to respond in writing) process for the variation, suspension or cancellation of a practising certificate. This expedited and summary process is only available where one of the specified grounds exists. In the case of the ground in s 82(1)(d), there are three crucial elements:
   • the Board must hold the relevant belief;
   • the belief must be reasonable; and
   • the belief must be that the practitioner is unable to fulfil the inherent requirements of a legal practitioner.
2. Understanding the last of these requirements requires meaning to be ascribed to the phrase "unable to fulfil" and to the phrase "inherent requirements of a legal practitioner".[18] To do so, it is helpful to first consider the ordinary meaning of the word "unable".
3. The word "unable" is defined in the Macquarie Dictionary and Shorter Oxford English Dictionary as follows:

unable adjective not able (to do something); lacking ability or power (to do something); weak; impotent.[19]

unable adjective

1 Chiefly of a person: not having ability or power. Foll. by to do, †for, †to.

2 (Of a person) lacking ability in some respect, incompetent; (of a faculty, action, ect.) inefficient, ineffectual.

3 Of a person or (formally) a thing: unfit, unsuited, incapable. Long obsolete exc. Scot., Foll. by for

4 Impossible.

5 Lacking in physical ability or strength; weak, feeble. Now Scot.[20]

1. Unsurprisingly, given unable literally connotes "not able", the common thread to these definitions is a lack of ability, capacity, competence or power in the relevant person.
2. In its submissions, the Board relied upon a passage from the judgment of Cussen J in Leeder v The Mayor[21] as demonstrating the variable nature of the meaning of the word "unable". The three judgments given in that case each confirm that "unable" does not necessarily equate with "impossible". Relevantly, Hodges J also notes that "unable" does not equate with "unfit":[22]

It thus appears that I am of opinion that a mental and bodily condition which makes it dangerous or even substantially injurious for a man to give the notice, or which makes him oblivious of business matters altogether, or which makes him really unfit to give the notice, thereby renders him "unable" within the meaning of the Statute. It must be borne in mind that I am not writing "unfit" in the place of "unable" in the Statute. "Unable" is the word there, but it is a word of more extensive signification than unfit, and there may be very many cases where a man is perfectly fit and yet "unable." I am only indicating the application of the Statute to causes similar to the one now under consideration.

1. However, in each example given (both in the passage quoted in paragraph 23 above from Cussen J and in the judgments delivered by Hodges J and A'Beckett J), the focus is again upon some factor which impacts on the ability of the person to do an act or whether they "could" rather than "would" do the act.
2. In X v The Commonwealth,[23] the High Court considered the phrase "unable to carry out the inherent requirements of the particular employment", a phrase which is very similar to the one under consideration in this case.[24] I will consider this decision further below. For present purposes, I note that Gummow and Hayne JJ said "...the provision applies only if the person would be unable to carry out those requirements. No doubt inability must be assessed in a practical way, but it is inability, not difficulty, that must be demonstrated".[25]
3. I conclude that there is, within the ordinary meaning of the word "unable", a spectrum of available meanings ranging from a total incapacity to perform the relevant act or acts to an impeded capacity to perform the act. At the upper end of the spectrum, the word "unable" may be equated with "impossible". At the lower, it may mean something more akin to "very difficult in the circumstances". However, in each case, the word unable connotes some lack of capacity or inability, as opposed to a lack of willingness to do the act or lack of probability that the act will be done in the future.
4. Turning to the phrase "inherent requirements of an Australian legal practitioner". As I have noted, the High Court in X v Commonwealth[26] considered the similar phrase of "unable to carry out the inherent requirements of the particular employment". That phrase was in s 15(4) of the Disability Discrimination Act 1992 (Cth), which is a quite different context to the Uniform Law. It also relates to the inherent requirements of "the particular employment" rather than "a legal practitioner". However, in construing this phrase it was apparent that the High Court in X v Commonwealth, and the earlier case of Qantas Airways Ltd v Christie[27] were seeking its ordinary meaning. The phrase also has a long history in the employment context, which dates as far back as Art 1(2) of the International Labour Organisation's Discrimination (Employment and Occupation) Convention 1958.[28]
5. The Uniform Law was enacted after the decision of X v Commonwealth. Its predecessors in Victoria and NSW, the Legal Profession Act 2004 (Vic) and the Legal Profession Act 2004 (NSW) were also enacted after this decision. This is particularly significant in relation to the NSW Act, as it contained the phrase "whether the person is currently unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner".[29]
6. By the time the Legal Profession Act 2004 (NSW) was enacted, and certainly by the time the Uniform Law was enacted, the phrase "inherent requirements" was thus a recognised term in the occupational context, with a recognised meaning. In the circumstances, the views of the High Court in X v Commonwealth as to the meaning of the phrase "inherent requirements" are helpful in determining the intention of Parliament when it used that phrase in s 82(1)(d).
7. Each of the majority judgments in X v Commonwealth emphasised that the inherent requirements of the employment extended beyond performing the physical tasks encompassed by the role to the circumstances in which they were to be performed. However, the use of the word "inherent" was seen as underlining that only the "characteristic or essential requirements" were inherent requirements, as opposed to those which might be described as peripheral.[30]
8. In comments which have been subsequently widely cited,[31] Mc Hugh J explained:[32]

Whether something is an "inherent requirement" of a particular employment for the purposes of the Act depends on whether it was an "essential element" of the particular employment. However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment. Thus, implied in every contract of employment are obligations of fidelity and good faith on the part of the employee with the result that an employee breaches those requirements or obligations when he or she discloses confidential information or reveals secret processes. Furthermore, it is an implied warranty of every contract of employment that the employee possesses and will exercise reasonable care and skill in carrying out the employment. These obligations and warranties are inherent requirements of every employment. If for any reason - mental, physical or emotional - the employee is unable to carry them out, an otherwise unlawful discrimination may be protected by the provisions of s 15(4) [ie: the employee is unable to perform the inherent requirements of the employment]...

1. One of the submissions made by Mr Marcevski was that honesty was not an inherent requirement of an Australian legal practitioner. The above comments by McHugh J clearly support the view that performance of an intangible duty may be an inherent requirement of a role just as performance of a physical task may be. The real question is whether compliance with the duty of honesty can be viewed as an essential element of the role of an Australian legal practitioner.
2. This is a question capable of only one answer.
3. John Dixon J, when considering the paramount duty owed by legal practitioners to the administration of justice in Bolitho Banksia Securities (No 18) (remitter),[33] cited the following observation by Spigleman CJ:[34]

Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the State regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the higher standards of integrity.

There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.

1. Dixon J also adopted Ipp J's description of the unifying force of the principles underlying the paramount duty as "the requirement that lawyers act with honesty, fairness, expedition, efficiency and restraint, in order to properly serve and protect the justice system."[35]
2. The duty of honesty is an important facet of the paramount duty owed by all legal practitioners to the administration of justice. In the circumstances, compliance with that duty (and other related duties inherent in the paramount duty) is an inherent requirement of a legal practitioner. However, as explained further below, the inherent requirement is compliance with the duty of honesty, rather than having an honest character.
3. As to the other duties identified in MN Legal and Management Consultants v The Council of the Law Society of New South Wales,[36] the Board accepted that this decision (and others applying it) was not binding upon me. I prefer not to express a concluded view as to whether those duties precisely as formulated form part of the inherent requirements of a legal practitioner, save to say that:
   • the words "ability to" should perhaps be omitted as that is more naturally encompassed within the phrase "unable to fulfil"; and
   • section 82(1)(d) requires identification of what is essential to all Australian legal practitioners, whatever their speciality, area of practice and experience. It seems to me that the performance of legal tasks with some level of competence is an inherent requirement of a lawyer. But it is not necessary for the purpose of answering the first question to determine precisely how such a duty is to be formulated.
4. Neither party said that being a fit and proper person was an "inherent requirement of a practitioner". I agree. Parliament has, in many of the other provisions concerning cancellation, expressly required a practitioner to demonstrate that they are a fit and proper person. If Parliament had intended s 82(1)(d) to be available when the Board believed on reasonable grounds that the practitioner was not a fit and proper person, it would have said so. Further, although the inherent requirements of a practitioner are not limited to the physical tasks that must be performed, the ordinary meaning of s 82(1)(d) suggests that they are nevertheless in the nature of duties or tasks that are required to be performed (or fulfilled) rather than aspects of character.[37] This approach is also consistent with the inherent requirements as formulated in MN Legal and Management Consultants v The Council of the Law Society of New South Wales,[38] which consist of duties or actions to be performed, rather than matters of character.
5. I turn to consider what the broader statutory context and purpose of s 82(1)(d) might say about its meaning and, in particular, whether it justifies a broader or narrower meaning than the ordinary meaning of the section.
6. I have already mentioned the first contextual factor. Section 82(1)(d) provides a specific ground upon which an expedited and summary process can be used for cancellation of a practitioner's registration. Further, of the five specified grounds in s 82, only three permit cancellation as opposed to suspension or variation.[39]
7. The expedited and summary process for cancellation under s 82(1)(d) may be compared with the process applicable under Chapter 5 of the Uniform Law to disciplinary matters. Chapter 5 prescribes a detailed process for dealing with a complaint which raises a disciplinary matter, with cancellation only possible if VCAT,[40] following a hearing, finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. In oral submissions, Counsel for Mr Marcevski relied heavily upon the contrast between s 82(1)(d) and Chapter 5. He submitted that giving the summary and expedited procedure in s 82(1)(d) a role to play in circumstances which would otherwise be subject of a disciplinary enquiry would undermine the protections for practitioners inherent in the disciplinary regime. He said in the ordinary course, cancellation for disciplinary reasons should be dealt with under Chapter 5.[41] He contended that to find otherwise would give the Board extraordinary power to act as both investigator and decision-maker, away from the glare of a public hearing and the rules of procedural fairness which govern VCAT. He said that this interfered with both Mr Marcevski's rights under the Charter of Human Rights and his common law rights. He submitted that it was contrary to the purpose of the Uniform Law in s 3(e) to promote regulation of the legal profession that is efficient, effective, targeted and, in particular, proportionate. He submitted that accordingly, s 82(1)(d) should be narrowly construed, either by limiting its operation to physical or mental ill-health or by excluding honesty and other matters going to the character of the practitioner from the inherent requirements of a legal practitioner.
8. However, s 82 is not the only mechanism by which a would-be legal practitioner may be prevented from practising, with only limited opportunity to make written submissions. For example, a practitioner may also be prevented from practising:

• through the Board suspending or cancelling their practising certificate under Division 4 of Part 3.5 where an "automatic show cause event" or a "designated show cause event" has occurred and the practitioner does not show to the Board's satisfaction that they are or can be considered a fit and proper person;

1. through the Board refusing to renew a practising certificate under s 45 of the Uniform Law on 30 June of any given year, on the ground that it considers the applicant is not a fit and proper person to hold a practising certificate. This is subject to merits review by VCAT, but in such a review the onus falls upon the applicant to show that they are a fit and proper person;[42]

• through an immediate variation or suspension by the Board under s 77 of the Uniform Law;
  • through removal from the roll by the Supreme Court under s 23 of the Uniform Law or its inherent jurisdiction; or
  • through the Board suspending them for failure to pay an annual contribution or levy under s 227 of the Uniform Law.

9. Further, although the process under s 82(1)(d) is initially expedited and summary, it is subject to merits review by VCAT under s 100. A review on the merits by VCAT requires a hearing and is governed by the rules of procedural fairness.
10. Section 97 of the Uniform Law provides:

97 Relationship of this Part with Chapter 5

(1) Nothing in this Part prevents a matter to which this Part relates from being dealt with under Chapter 5, whether or not it is being, or has already been, dealt with under this Part.

(2) Without limitation, a matter to which this Part relates may be made the subject of a complaint and dealt with under Chapter 5 even if adverse action has been taken under this Part against the Australian legal practitioner or Australian-registered foreign lawyer concerned

1. This indicates a parliamentary intention that both Part 3.5 and Chapter 5 may operate in a given situation.
2. Finally, s 82(1)(d) permits suspension, cancellation or variation. This can be contrasted with s 82(2) which permits only suspension or variation, not cancellation. Provisions which permit only suspension may fairly be described as "emergency" measures[43] which are intended to apply in situations outside the "ordinary course" of disciplinary matters. However, this description is less apt for a power to cancel under s 82(1)(d).
3. Mr Marcevski also submitted that the Charter[44] was relevant to the interpretation of the LPUL. I do not accept this submission. Its application is expressly excluded by s 6 of the Legal Profession Uniform Law Application Act 2014. That exclusion is described in the explanatory memorandum as being necessary to prevent inconsistency and the extra-jurisdictional application of the Charter.[45] To rely upon its provisions in interpreting the Uniform Law would be contrary to this express statement of legislative intention, and undermine the objective of providing and promoting interjurisdictional consistency in the law, given the Charter does not apply in other states. Nor do I see the protection of fundamental common law rights of legal practitioners to have a great significance in the interpretation of this aspect of the Uniform Law. It is apparent from the number of different mechanisms by which a practitioner may be prevented from practising, that the ability to practice as a lawyer is tenuous and conditional: more appropriately described as a privilege than a right. If anything, these mechanisms underline the special significance of the profession of lawyering in the administration of justice and the resultant importance of maintaining standards in the legal profession.
4. This does not mean that the impact of a cancellation under s 82(1)(d) upon an individual practitioner should be disregarded. The cancellation of a practising certificate, particularly if made in conjunction with a determination that the practitioner cannot re-apply for registration for up to five years, is a "severe outcome"[46] which directly impacts on the livelihood of the practitioner. This tells against any expanded interpretation of the meaning of s 82(1)(d). However, it does not suffice to justify narrowing it by implicitly restricting its operation to health issues.
5. Mr Marcevski also relied upon the explanatory memorandum which includes the following:[47]

The practising certificate provisions recognise that in many circumstances health issues, if regulatory intervention is required, may best be dealt with through the practising certificate regime. If a practitioner is not able to fulfil the 'inherent requirements' of an Australian legal practitioner, the designated local regulatory authority may choose to not issue a practising certificate, or to vary, suspend, cancel or not renew an existing certificate. Regulators should, however, continue to use the range of practising certificate conditions (including discretionary conditions relating to medical treatment and supervision) to allow practitioners to practise to the full extent they are capable without compromising consumer protection, in accordance with human rights and anti-discrimination obligations.

1. Although this statement is included under the heading "Overview of Part 3.3", its relevance to Part 3.5 is confirmed in the first sentence under that heading, which states "Part 3.3 provides for the issue of Australian practising certificates, while Part 3.5 provides for their variation, suspension, cancellation and refusal to renew". This passage supports the view that a practitioner may be unable to fulfil the inherent requirements of an Australian legal practitioner for health issues. However, it does not follow that there was a legislative intention that the power under s 82(1)(d) is only exercisable because of an inability which arises from health issues. If this was the intention, it would have said so. Indeed, the Victorian predecessor to the Uniform Law, the Legal Profession Act 2004 (Vic), included under s 1.2.6(1)(m) as a suitability matter "whether the person currently has a mental infirmity". Parliament chose not to continue this wording, or similar wording expressly referring to mental or physical health issues, in the Uniform Law.
2. It may be said that mental or physical health issues are the paradigm example of a practitioner being unable to fulfil the inherent requirements of a legal practitioner. However, I cannot see that, as submitted by Mr Marveski, inability "will inevitably follow from infirmity".[48] For example, it may be that a reasonable belief could be formed that a legal practitioner was unable to fulfil the inherent requirements of a legal practitioner because they have insufficient English language skills, have insufficient competence in basic legal skills to perform their role, are physically restrained by imprisonment in solitary confinement or are distracted by overwhelming grief, falling short of a medically diagnosable condition. It is not necessary to decide which, if any of these examples, may fall within the scope s 82(1)(d) in the circumstances of a particular case, but only to say that they ought not be excluded by the artificial insertion of the words "mental or physical health issues" into the statutory text.
3. Finally, both parties relied upon the objects of the Uniform Law expressed in s 3, which provides in full:

The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by -

(a) providing and promoting interjurisdictional consistency in the law applying to the Australian legal profession; and

(b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and

(c) enhancing the protection of clients of law practices and the protection of the public generally; and

(d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and

(e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and

(f) providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained.

1. Mr Marcevski focussed on promoting regulation of the legal profession that is efficient, effective, targeted and (particularly) proportionate. The Board focussed on the maintenance of high ethical and professional standards and the protection of clients and the public.
2. Self-evidently, the stated objectives of the Uniform Law may pull in different directions. Ultimately, it is the role of Parliament to strike the balance between the various values that the Uniform Law seeks to advance. In the case of s 82(1)(d), that balance has been struck in favour of permitting cancellation where the Board has formed a reasonable belief that a practitioner is unable to fulfil the requirements of a legal practitioner. I can see no justification in the purposes of the Uniform Law for either narrowly or broadly interpreting s 82(1)(d).
3. Parliament has chosen to include procedural safeguards in the processes required under Chapter 5. It has been said that procedural safeguards of this kind should not be narrowly construed.[49] However, Parliament has also chosen not to include these procedural safeguards to the exercise of the power given under s 82(1)(d). This decision must be respected.
4. Similarly, Parliament has chosen to restrict the use of s 82(1)(d) to circumstances where there is a reasonable belief that the practitioner is unable (lacks capacity) to fulfil the inherent requirements (only the essential duties or tasks) of a legal practitioner. It has provided other mechanisms to protect the public and the administration of justice where s 82(1)(d) might not be available, including the power to immediately suspend under s 77 of the Uniform Law, the power to not renew under s 45 of the Uniform Law and the process for dealing with disciplinary matters under Chapter 5. Again, this decision must be respected.
5. I return again to the text of s 82(1)(d). The requirement of that section is that the Board hold a reasonable belief that the practitioner is unable to fulfil the inherent requirements of an Australian legal practitioner. This three-fold limitation sufficiently limits the operation of s 82(1)(d). Nothing in the context or purpose of the provision suggests it should be further limited, or expanded.
6. The answer to Question 1 is no. However, I have arrived at this conclusion through a path which included:
   • the rejection of the submission of Mr Marcevski that the inherent requirements of a legal practitioner did not include compliance with the duty to be honest;
   • the rejection of the submission of Mr Marcevski that the power under s 82(1)(d) was limited to circumstances of mental or physical illness;
   • the rejection of the submission of the Board that the inherent requirements of a legal practitioner included matters of character, rather than the essential duties or tasks that are to be performed by an Australian legal practitioner; and
   • the rejection of the submission of the Board that s 82(1)(d) could be satisfied by a reasonable belief that applicant was unlikely or unwilling to perform the inherent requirements of a legal practitioner, as opposed to having a lack of capacity or ability to fulfil the inherent requirements of a legal practitioner.

**Question 2 - Whether s 466 of the Uniform Law applies to:

(i) an Australian practising certificate should be varied, suspended or cancelled on a ground specified in S 82 of the Uniform Law;

(ii) a person should be restricted from applying for a certificate for a specified period not exceeding 5 years under s 94 of the Uniform Law,

1. Both parties treated Question 2 as concerned with whether s 466(4) applied to the Board's consideration or VCAT's review.
2. Mr Marcevski submitted that s 466(4) applied whenever a decision-maker proposed to use material to which s 466 applies against the person who complied with the coercive power. He submitted that in any such case, the material can only be used if the procedure or proceeding falls within s 466(4)(a)-(c).
3. He relied upon the following passage from the Attorney-General's statement of compatibility with the requirements of the Charter, when explaining why he considered the coercive powers in Chapter 7 of the Uniform Law to be compatible with the Charter:

Any information or document obtained as a direct or indirect consequence of a person complying with a chapter 7 requirement is inadmissible in evidence against that person, except in proceedings for an offence against the uniform law, making a false or misleading statement or relating to a disciplinary matter.

1. Mr Marcevski said it followed that s 466(4) should be interpreted in a manner which most completely prohibits use against the person coerced. Effectively, he contended that s 466(4)(a)-(c) should be given pre-eminent force, as reflecting Parliament's identification of the legitimate purposes for which coercive powers which abrogated the privilege against self-incrimination and legal professional privilege could be used. He said a similar conclusion could be reached by reference to the principle of legality.
2. He said that there was no incongruity in concluding that material could not be used for the exercise of a power under s 82(1)(d) but could be used in criminal or disciplinary prosecutions. He contended that the power under s 82(1)(d) was more likely to be informed by a medical examination under s 95(1)(b) than material obtained using the coercive powers to which s 466 applied. Further, he contended that the pre-emptory, summary and emergency procedure provided by Division 3 of Part 3.5 could be contrasted with the procedural safeguards in disciplinary proceedings under Chapter 5.
3. The Board said that s 466(4) contained both a prohibition and a permission. The prohibition was contained in the words "but is not otherwise admissible in evidence against that person". The permission was in the words "is admissible against the person in proceedings or procedures- [etc]". It submitted that the words "admissible in evidence" limited the application of the prohibition to the admission of material into evidence against a person to establish civil liability or criminal responsibility. The Board, when it made its decision, considered material, but it did not admit it into evidence. Accordingly, the prohibition in s 466(4) did not apply to its consideration of the material.
4. The Board rejected Mr Marcevski's submission that VCAT should have regard to the principle of legality to minimise the abrogation of the common law right to privilege against self-incrimination or to maximise its protection. It said that s 466(2) and (3) expressly and unequivocally abrogated legal professional privilege and the privilege against self-incrimination and that having done so, the principle of legality had no operation. It said that the Charter was expressly excluded and so had no relevance to the interpretation of s 466(4).
5. The Board submitted that the Applicant's construction would create a conflict between s 82 and s 466(4). Section 82(1)(b) empowered the Board to vary, suspend or cancel a certificate on the ground that the holder has failed without reasonable excuse to comply with a requirement under Chapter 7, which included Part 7.4 of the LPUL. If s 466(4) prohibited the use of material obtained under Part 7.4 of the LPUL when the Board was considering exercising the power under s 82(1)(b), its use of this power would be hamstrung.
6. The Board said that it followed from this conclusion that the material could also be considered by VCAT. It said it would be an irrational result if the Board were permitted to have regard to the material to make a decision, but on a review before VCAT it could not rely upon the material in support of its decision. The Board also relied on provisions concerning VCAT process such as s 97, s 98(1)(b), s 98(1)(d) and s 49(1)(b) as supporting the view that VCAT could have regard to material to which the Board was entitled to have regard.

1. I will start by addressing matters relating to the general approach which VCAT should adopt to the construction of s 466.
2. First, as with Question 1, VCAT's task is one of attributing meaning to the statutory text, having regard to its context and purpose.
3. Second, again as with Question 1, I do not consider the Charter to be of assistance in the interpretation of s 466. To have regard to the Charter when it has been expressly excluded to maintain consistency across jurisdictions would directly undermine a stated purpose of the Uniform Law.
4. Third, although it would not be correct to say that the principle of legality has no operation, the scope for its operation where there has been an express abrogation of legal professional privilege and the privilege against self-incrimination is limited.[50] As said by the Court of Appeal in The Catholic Archdiocese of Melbourne v RWQ[51] the principle "needs to be applied with care in the circumstances".
5. Fourth, the parties referred me to numerous decisions concerning the interpretation of "use immunity" provisions such as s 466(4) in other statutory contexts. I have read and considered each of these decisions. However, each such provision has been interpreted according to its own text, context and purpose. Care must be taken before assuming that because one use immunity provision has been interpreted a particular way, that this use immunity provision should also be interpreted that way.[52]
6. Finally, I must apply a purposive approach to statutory interpretation. As part of that approach, I may assume that parliament did not intend an absurd or arbitrary result. However, this is not an invitation to infer a statutory purpose consistent with my personal view of what would be fair and reasonable, and to interpret the statutory text accordingly.[53]
7. Turning, then to the text of s 466, it provides in full:

466 Provisions relating to certain requirements under this Law

(1) This section applies to a requirement under -

(a) section 154 to give written notice of an irregularity in connection with a trust account, a trust ledger account or trust money; or

(b) section 348 to give access to documents or information; or

(c) section 370 to produce documents or provide information; or

(d) section 371 to produce documents, provide information or otherwise assist in, or cooperate with, an investigation; or

(e) section 375(1)(j) to do a specified thing; or

(f) Part 7.4 to produce documents, provide information or do anything else under that Part.

(2) The validity of the requirement is not affected, and a person is not excused from complying with the requirement, on -

(a) the ground of legal professional privilege or any other duty of confidence; or

(b) the ground that a law practice or Australian legal practitioner has a lien over a particular document or class of documents.

(3) A person is not excused from complying with the requirement on the ground that compliance with the requirement, or an answer, document, information or assistance provided in complying with the requirement, may tend to incriminate the person.

(4) Any information, document or other thing obtained as a direct or indirect consequence of a person complying with the requirement is admissible against the person in proceedings or procedures -

(a) for making a false or misleading statement; or

(b) for an offence against this Law; or

(c) relating to a disciplinary matter -

but is not otherwise admissible in evidence against that person.

(5) A person complying with the requirement is not subject to any liability, claim or demand merely because of compliance with the requirement and, without limitation, is not liable for any loss or damage suffered by another person as a result of the person's compliance with the requirement.

(6) A failure of an Australian lawyer or Australian-registered foreign lawyer to comply with the requirement is capable of constituting unsatisfactory professional conduct or professional misconduct.

(7) A local regulatory authority may recommend to the designated local regulatory authority that an Australian practising certificate or an Australian registration certificate be suspended while a failure by the holder to comply with the requirement continues.

1. Section 466(1) limits the application of the section to specific requirements under provisions of the Uniform Law to provide a notice, produce documents or information or take an action. Section 466(2) expressly abrogates legal professional privilege and the operation of any lien. Section 466(3) expressly abrogates the privilege against self-incrimination. Section 466(5) provides an immunity from suit for compliance with a relevant requirement. Section 466(6) confirms that a failure to comply with a relevant requirement is capable of amounting to a disciplinary matter. Section 466(7) permits a recommendation to be made that a practising certificate be suspended for failure to comply with a requirement. This in turn, activates s 77 which empowers the Board to immediately suspend a practitioner upon a recommendation being made under s 466(7).
2. Section 466(4) must be interpreted having regard to this immediate statutory context. I will return to this issue after consideration of the text of s 466(4).
3. The following features can be noted about the text of s 466(4):
   • first, the material to which it is applied is broad - it is not limited to material actually produced pursuant to the relevant requirement, but includes any information, document or other thing obtained as a direct or indirect consequence of a person complying with the requirement;
   • second, the broad scope of the material which it encompasses applies to both the permission ("is admissible") and the prohibition ("is not otherwise admissible");
   • third, s 466(4) applies only to admission against the person who complied with the requirement. It says nothing, for example about use of privileged material produced by a lawyer against a client. In this respect, the provision seems more directed to preserving some protection of the privilege against self-incrimination;
   • fourth, the permissions in s 466(a)-(c) each concern subject matter of a criminal or disciplinary nature;
   • fifth, s 466, in both the permission and the prohibition, uses the term "admissible", which is a narrower term than "used"; and

(f) sixth, the wording used for the permission "is admissible against the person in proceedings or procedures" is not identical to the wording used for the prohibition "not otherwise admissible in evidence against that person". It may be that "admissible in evidence" is narrower again than "admissible".[54]

1. If I then return to the immediate statutory context, several features of s 466 suggest that the "permission" in s 466(4) is not exhaustive of the circumstances in which material produced pursuant to a relevant requirement can be used. For example, s 154 requires written notice to be given of an irregularity in connection with a trust account, a trust ledger account or trust money. It would be absurd if that notice could only be "used" by the Board in the circumstances in s 466(4)(a)-(c) and not, for example, in deciding whether to appoint an external investigator under s 162 of the Uniform Law; and ultimately to initiate an external intervention under Part 6.2. Similarly, an investigator must be able to use documents obtained for the purpose of an investigation; and a receiver who requires a person to give access to documents relating to the affairs of the law practice must be able to use those documents for the purpose of the receivership, even if to do so was against the interests of the person. In relation to an investigation, this is confirmed in the text of s 370 and s 375.
2. Further, s 165 requires an investigator to give a written report of the examination to the Board and empowers them to disclose information in the report or acquired in carrying out the investigation "to the law practice or person who is a subject of the investigation or report; or ...as is necessary for properly conducting the investigation and making the report of the investigation; or ...as provided in section 462.[55] Section 462, in turn permits disclosure (for example) "to the extent that the disclosure is reasonably require to exercise functions"[56] under the Uniform Law and "to a court or tribunal in the course of legal proceedings"[57] and "to the extent the disclosure is reasonably required to enable the enforcement or investigation of the criminal law or a disciplinary matter".[58] The Board cannot "un-know" material which it knows after receipt of a report. Given the broad range of material to which s 466(4) applies, once it receives a report from an investigator that report may directly or indirectly lead to a great deal of further material. It would be surprising if the Board was to be prevented from having regard to this material in the performance of its functions and duties, save in specified circumstances.
3. Similarly, the power under s 466(7) to refer for immediate suspension for non-compliance with a relevant requirement would be practically useless if it could not be informed by the consideration of any material produced pursuant to a relevant requirement. Although technically it may still have operation when there has been absolutely no compliance, if there was even the most minimal and tokenistic compliance, the Board would not be able to have regard to its content in determining whether to make a referral under s 466(7) or, such a referral having been made, to immediately suspend.
4. Overall, there are strong textual indications that the permission in s 466(4) does not exhaustively set out the circumstances in which the relevant material can be used. Rather, it expressly confirms that in the circumstances described in s 466(4)(a)-(c), the relevant material is "admissible" against the person and thus limits the scope of the prohibition in s 466(4).
5. The critical question, then, is whether the prohibition in s 466(4) against the relevant material being "admissible in evidence against that person" applies.
6. Use of material by the Board in support of a decision made using the expedited and summary procedure applicable under s 82(1)(d) or s 94 is not within the ordinary meaning of "admission in evidence against the person".[59] The Board does not admit evidence against a person, it makes a decision having considered material, provided the required notice and considered any response.
7. On the other hand, it is within the ordinary meaning of the phrase to describe use by VCAT of material on a review as "admission into evidence against a person", particularly if "against a person" is interpreted as in any way against that person's interests.[60] However, it is not the only available meaning of the phrase. In Feldman v Nationwide News Pty Ltd,[61] the New South Wales Court of Appeal held that the phrase "admission in evidence against a person" was limited to use to establish civil or criminal liability. Thus, it was not admission into evidence against a person to tender the evidence in support of a fair use defence to a claim for defamation by that person. President Bell explained:[62]

[The use immunity provision in question] has its origins in provisions designed to ensure that answers compelled by royal commissions or public commissions of inquiry could not be used against the person giving those answers in a way that would expose him or her to liability, whether criminal or civil.

1. The Board submitted that the latter interpretation should be preferred and that use in a review proceeding was not use to establish criminal or civil liability (or anything akin to it, as might, for example, be the case in disciplinary proceedings under Chapter 5).[63] It submitted that this must be the case as it would be irrational if the Board could have regard to material, but VCAT could not. Mr Marcevski, on the other hand, submitted that the former interpretation should be preferred and, further, that the Board should also be prohibited from having regard to the material as it would be irrational if VCAT could not have regard to the material but the Board could.
2. I would not go so far as to say that it would be "irrational" for VCAT to be prevented from having regard to material to which the Board may have regard. The process before VCAT is radically different from the summary and expedited process applicable when the Board makes a decision under s 82(1)(d). In a contested matter, VCAT would only make a decision after a hearing, with both parties having been given the opportunity to put relevant material before VCAT. This means that the material considered by VCAT may completely different in nature and extent from the material considered by the Board.
3. Further, VCAT's processes are called "a proceeding" both in the Uniform Law and in the VCAT Act.[64] VCAT is bound by the rules of natural justice.[65] It is required to allow each party a reasonable opportunity to call or give evidence and examine, cross-examine or re-examine witnesses.[66] The VCAT Act uses the term "admit into evidence" for documents and material to which it will have regard.[67] Although not a Court, its processes are much more "Court-like" than a decision by the Board, particularly in a matter so significant for the livelihood of an applicant as this. Further, the result of a decision under s 82 includes cancellation which undoubtedly has a severe impact upon an applicant for review.
4. On the other hand, although not "irrational", it would be an odd result if VCAT could not have regard to material to which the Board could have regard. The Board would effectively have the power to make a decision having regard to material which it knew it could not subsequently justify before VCAT, because that material must be excluded. Further, there are several textual indications which tell against such a conclusion. This proceeding is not the determination of a dispute between parties or a disciplinary charge in VCAT's original jurisdiction. Rather, it is the "review" of a decision made by the Board. In performing that review, VCAT has all the functions of the Board.[68] Functions is defined in s 3 of the VCAT Act to include "jurisdiction, power, duty and authority". Thus, VCAT has all the powers of the Board, which may include the power to have regard to material obtained using compulsory powers. Effectively, it stands in the shoes of the Board[69] and makes the decision again. A review by an administrative tribunal has been described as "in no sense...an adversarial contest".[70] It is thus fundamentally different from a civil or criminal proceeding. Section 49 of the VCAT Act requires the Board to lodge with the Tribunal its statement of reasons and every other document that it considers is relevant to the review of the decision. Section 49(5) provides that this section applies despite any rule of law relating to privilege or the public interest in relation to the production of documents. Section 98(1)(b) states that VCAT "is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures". Section 98 states that VCAT may "inform itself on any matter as it sees fit", which may be interpreted as permitting it to inform itself on a matter without formally admitting a document into evidence. Section 105 expressly abrogates the privilege against self-incrimination in relation to the answering of a question or the production of a document.
5. Although the consequences of the exercise of a power under s 82 or 94 are potentially severe, they are also much less akin to a penal or criminal proceeding than a proceeding under Chapter 5. This is particularly so in relation to a decision under s 82(1)(d) which I have held centres on capacity rather than any intentional conduct which might justify punishment.
6. The construction of the prohibition in s 466(4) must also be considered having regard to the very broad nature of the material to which it may apply. To give an example, if a notice of a trust irregularity under s 154 leads to an investigation, it may be that all information obtained during the course of that investigation will have been obtained as an indirect consequence of the person complying with the requirement to give the notice (including, for example, the investigator forming the view the practitioner has a mental illness). The very broad nature of the material protected by the prohibition, tells against an expansive interpretation of the prohibition, notwithstanding the principle of legality.
7. There are at least two available interpretations of the prohibition in s 466(4). One is that it prohibits admission into evidence in any proceeding and in any way against the interests of the relevant person, including the current proceeding. The other is that it prohibits admission into evidence against the person in the sense of establishing criminal or civil liability (or anything akin to it, as might, for example, be the case in disciplinary proceedings under Chapter 5) and does not apply to prevent VCAT having regard to material in a review proceeding of this kind. Having regard to the matters of context and purpose I have outlined, I consider that it is the latter interpretation of the prohibition which is correct. Accordingly, the prohibition in s 466(4) does not apply to this proceeding.
8. The answer to Question 2(a)(i), 2(a)(ii) and 2(b) is no.

Question 3. If yes to question 2(a) above, whether for the purpose of the Decision, the Board was entitled to have regard to the transcript and recording of the examination of the applicant conducted under s 383 of the Uniform Law on 15 June 2023 (the Recording and Transcript).

Question 4. If yes to question 2(b) above, whether for the purpose of this Review, the VCAT is entitled to have regard to the Recording and Transcript.

[1] There is dispute between the parties whether the documents were obtained from Mr Marcevski or Marcevski Lawyers, or both. It is not necessary to resolve this dispute for the purposes of this decision.

[2] Legal Professional Uniform Law Application Act 2014 (Vic), Sch 1.

[3] Section 100 speaks of an "appeal or review". In these reasons I have used the word "review" as it better encapsulates the merits review described in Division 3 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) and is the word used in Mr Marcevski's application.

[5] Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2020] VSCA 110 [85].

[6] The designated local regulatory authority for Part 3.5 of the Uniform Law - see s 10(1) of the Legal Profession Uniform Law Application Act 2014 (Vic).

[7] Applicant's amended submissions dated 17 October 2025 [10] (Applicant's amended submissions).

[8] Applicant's amended submissions [12].

[9] Applicant's amended submissions [36].

[10] Applicant's amended submissions [14].

[11] Respondent's submissions dated 22 October 2025 [21] (Respondent's submissions).

[13] [1908] ArgusLawRp 12; [1908] VLR 214, 223.

[14] [2018] NSWSC 1410 [47].

[15] Respondent's submissions at [14] and [20].

[16] [2025] HCA 35 [4] (per Gageler CJ, Gordon, Jagot and Beech-Jones JJ, with whom Edelman J agreed); see also Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 253 CLR 503 [39].

[17] For the sake of conciseness, ss 82(3)-(5) have been omitted from this quotation.

[18] Although of course s 82(1)(d) must be interpreted as a whole; and the meaning ascribed to "unable to fulfil" will be informed by the meaning ascribed to "the inherent requirements of a legal practitioner (and vice versa).

[19] Macquarie Dictionary (6th ed, 2013) 'unable'.

[20] Shorter Oxford English Dictionary (6th ed, 2007) 'unable'.

[21] Leeder v The Mayor, Etc., of the Town of Ballarat East [1908] ArgusLawRp 12; [1908] VLR 214, 223. See above, at para 23.

[22] Leeder v The Mayor, Etc., of the Town of Ballarat East [1908] ArgusLawRp 12; [1908] VLR 214, 221.

[23] (1999) 200 CLR 177.

[24] After the hearing, parties were given the opportunity to make submissions in relation to this case. The Board provided submissions dated 13 November 2025, which I have considered.

[25] X v The Commonwealth (1999) 200 CLR 177, 208 [101].

[26] (1999) 200 CLR 177.

[27] (1998) 193 CLR 280.

[28] See Qantas Aurways Ltd v Christie (1998) 193 CLR 280, 303-4 [70] (McHugh J).

[29] Section 9(1)(m) of the Legal Profession Act 2004 (NSW).

[30] X v The Commonwealth (1999) 200 CLR 177, 208 [102] (Gummow and Hayne JJ, with whom Gleeson CJ agreed).

[31] See Harden v Willis Australia Group Services Pty Ltd; Willis Australia Group Services Pty Ltd v Harden [2021] NSWSC 939 Sacker J [32], Ryan v Commissioner of Police, NSW Police Force (No 2) [2021] FCA 106 Abraham J [242], LiveBetter Services Ltd v Quarmby [2020] NSWSC 7 Robb J [73], Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181 Kerr, Ocallaghan and Thawley JJ [69] and [163],Gordon v Commonwealth of Australia [2008] FCA 603 Heerey J [66], and Cucanic v IGA Distribution (Vic) Pty Ltd [2004] FCA 1226 Marshall J [21].

[32] X v The Commonwealth (1999) 200 CLR 177, 187-8 [31]-[32].

[33] [2021] VSC 666.

[34] NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, 284 [19]-[20], cited in Bolitho Banksia Securities (No 18) (remitter) [2021] VSC 666 [1313].

[35] Bolitho v Banksia Securities (No 18) (remitter) [2021] VSC 666 [1319], citing DA Ipp, 'Lawyers' Duties to the Court' (1998) 114 Law Quarterly Review 63.

[36] [2018] NSWSC 1410 [47]. See above para 24.

[37] See for example Qantas Airways Ltd v Christie (1998) 193 CLR 280, where, with the possible exception of McHugh J, the majority identified the essential duties of the position which the respondent could not perform by reason of his age, rather than his age per se as an "inherent requirement" of the position.

[38] [2018] NSWSC 1410 [47].

[39] The power under s 82(1)(c) is contingent on a recommendation being made under s 278, s 299(1)(g) or 466(7) - none of these provisions empower a recommendation of cancellation to be made. Section 82(2) only permits suspension or variation, not cancellation.

[40] The designated tribunal for the purpose of Division 3 of Part 5.4 - see s 10(3) of the Legal Profession Uniform Law Application Act 2014.

[41] Relying on Berger v Council of the Law Society of NSW [2013] NSWSC 1080 at [14].

[42] Uniform Law, s100(7).

[43] Berger v Council of the Law Society of NSW [2013] NSWSC 1080 [14].

[44] Charter of Human Rights and Responsibilities Act 2006.

[45] Explanatory Memorandum for the Introductory Print of the Legal Profession Uniform Law Application Bill 2013, 4 (Explanatory Memorandum).

[46] Berger v Council of the Law Society of NSW [2013] NSWSC 1080 [4].

[48] Applicant's reply submissions dated 27 October 2025, 1.

[49] Pham v Legal Services Commissioner [2016] VSCA 256 [229].

[50] Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 at 310-311 [313]- [314] (Gageler and Keane JJ).

[51] [2023] VSCA 197 [52].

[52] Herron v HarperCollins [2022] FCAFC 68; (2022) 292 FCR 336, 367 [105], citing Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 [29]-[31]; McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646, 661 [40].

[53] Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1 [28] (French CJ, Hayne, Kiefel and Bell JJ); Certain Lloyd's Underwriters v Cross (1012) [2012] HCA 56; 248 CLR 378, 390 [26].

[54] Roberts-Smith v Fairfax Media Publications Pty Limited (No 18) [2021] FCA 793 [31].

[59] Chen v Legal Practice Board of Western Australia [2021] WASC 152 [23]-[24].

[60] Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; (2010) 77 NSWLR 506 [154];.

[61] [2020] NSWCA 260; see also Roberts-Smith v Fairfax Media Publications Pty Limited (No 18) [2021] FCA 793 [27]-[31]; compare Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336.

[62] [2020] NSWCA 260 [91] (Bell P, with whom Macarlan and Payne JJA agreed).

[63] See Hartmann v Commissioner of Police (1997) 91 A Crim R 141, 147-8; Jattan v Chief Executive, Queensland Health [2010] QSC 92 [30]; McCarthy v Law Society (NSW) (1997) 43 NSWLR 42.

[64] See also Paull v Queensland All Codes Racing Industry Board [2017] QCATA 92.

[69] BFK v The Victims of Crime Assistance Tribunal [2017] VSC 736 [21].

[70] Transport Accident Commission (Vic) v Bausch [1998] 4 VR 249, 259 (Tadgell JA, with whom Batt and Buchanan JJA agreed).