1. As this is an interlocutory dispute, the Tribunal's factual and legal conclusions are necessarily of an interim nature and are therefore not final conclusions for the purpose of the proceeding.
2. The relevant principles in Towie at [9] are as follows:

... the usual directions given at VCAT, would not generally be appropriate where an applicant seeks to review disciplinary proceedings and is a person who is or may be exposed to a penalty. A party may, in such cases, be required to file written grounds and an outline of argument which identifies in broad terms what is in issue on the application for review. But it will not ordinarily be appropriate that directions be given which require the applicant for review to provide an outline of argument, or any other written material, which contains a positive assertion or denial of facts or requires an election by the applicant as to whether he or she intends to go into evidence or requires any proposed evidence the applicant intends to call to be the subject of a witness statement which must be produced and served on the other side, before the case advanced against the applicant has been completed.

1. Towie involved an application for review of the Medical Practitioners' Board of Victoria's decision that a practitioner had engaged in unprofessional conduct.
2. The Board in the present case did not strongly argue that the present proceeding was not a proceedings analogous to an 'exposure to penalty' proceedings or 'disciplinary proceedings'. The Tribunal in the decision of Legal Services Commissioner v Spaulding [2015] VCAT 292 ('Spaulding'), concluded that Towie applied to a disciplinary proceeding under earlier legal practise legislation. The Tribunal is satisfied, for the purpose of this interlocutory decision, that the proceedings are disciplinary proceedings and proceedings in which the applicant is exposed to a penalty. As such, in the usual circumstances, it would not generally be appropriate for the Tribunal to require the applicant to file and serve material upon which he wishes to rely, other than to file and serve an outline of argument in broad terms as to the issues in dispute.
3. The Board argued that the Towie principles do not apply in this proceeding, as:
   1. The applicant has made his election and gone into evidence. He has therefore waived his rights under Towie; and/or
   2. The statutory provisions of the Uniform Law have reversed the onus to the applicant to prove he is a fit and proper person and to disprove any statement of facts in the Board's reasons.

1. The Board argues that the applicant has already 'put forward his petition in writing and in detail' and therefore in effect made his election to go into evidence. The applicant provided the Board with a detailed written statement in response to the Board's notice of proposed cancellation. In the present proceeding, he has gone on oath by the filing and serving an affidavit for the stay hearing and notified the Tribunal and the Board of his intention to go into the witness box and be cross-examined by the Board. The Board submits that the applicant has disclosed his substantive defences and should be taken to have irrevocably waived his right to claim penalty privilege.
2. The applicant argues that the fact he was unable to rely on penalty privilege before the Board, and he was required to and did state his position before the Board, does not have the effect that penalty privilege has no application in this Tribunal. The applicant also submitted that the Board may wish to establish that the applicant has committed indictable offences in this matter, in which case the privilege against self-incrimination in respect of subsequent potential criminal proceedings must also be considered.
3. The applicant submitted that the statements on behalf of the applicant before the Board, that he wished to give evidence and be cross-examined and that a decision be made by a third party, are consistent with the continued application of Towie. The Board does not point to any expression by the applicant in the present proceeding to giving evidence at the final hearing. The applicant went into evidence in the stay application, as he was required to have the papers in the review before the Tribunal. It was submitted that the applicant did not, by this affidavit, outline his case.
4. The applicant stated that he has not yet decided to give evidence in relation to whatever may be the Board's allegations in this proceeding or whether he will otherwise present a positive case. The applicant has not sought to set out in detail his case, as he does not yet know what the Board's case will be. The applicant submitted that in the decision of Spaulding, the Tribunal found that penalty privilege applied to a subsequent proceeding, even where the practitioner was required to set out his case during an investigation by an investigating authority.
5. The Board has relied upon a range of conduct to support a finding that the applicant has waived his right to penalty privilege. This includes material placed before the Board in its consideration and material relied upon by the applicant in the stay application in the present proceeding.
6. The Tribunal notes that the Court in its reasoning in Towie, does not seem to have considered whether the practitioner in that case had waived penalty privilege, despite conducting himself in a manner which may have arguably been an express or implied waiver of the privilege.
7. In Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620 ('Mining Projects'), the Federal Court found that penalty privilege may be waived expressly by contract and impliedly by conduct and that doing so is consistent with principle and the nature of the privilege. The decision also refers to waiving the privilege against self-incrimination and that it can be waived by conduct. Waiver of a privilege can be by giving up the information to which the privilege applies. The Court found that the defendants in Mining Projects had each waived penalty privilege and privilege against self-incrimination by the filing of their defences. However, the waiver was limited to what was said in those defences in the proceeding. The waiver went no further than what had been admitted or asserted by the defendants. The Court contrasted the limited waiver of the penalty privilege and privilege against self-incrimination with a partial waiver of legal professional privilege leading to full disclosure.
8. Consistent with the decision of this Tribunal in Spaulding, I am not satisfied that the applicant's responses to the Board during the investigation was in any way a waiver of his Towie rights.
9. In relation to the material relied upon by the applicant in the stay application, I am satisfied that the applicant has waived his Towie rights in relation to the matters within that material. However, in accordance with Mining Projects, the waiver goes no further than what has been admitted or asserted in that material. The waiver by the applicant of his Towie rights, does not extend to requiring the applicant to provide further information about his case prior to the Board closing its case, save for an outline of argument in broad terms as to the issues in dispute.

1. The Board submitted that statutory provisions of the Uniform Law have reversed the onus in this proceeding to the applicant to prove he is a fit and proper person and to disprove any statement of facts in the Board's reasons. Therefore, the Towie principles are not applicable to this proceeding.
2. The Board submits that where there is a question on review as to whether a person is a fit and proper person to hold a practising certificate, the onus of establishing that a person is a fit and proper person to hold a practising certificate is on the person asserting the fact and that it is presumed in the absence of evidence to the contrary, that the statement of facts in the reasons of the Board is a correct statement, see section 100(7) of the Uniform Law.
3. The Board relied upon section 82(1)(d) of the Uniform Law which, in part, provides that the Board may cancel a practising certificate 'if it reasonably believes that the holder is unable to fulfil the inherent requirements of an Australian legal practitioner'. Section 94 relevantly provides that where the Board cancels a certificate, it may also decide that the person is not entitled to apply for a certificate for up to 5 years.
4. The Board states that although the term 'fit and proper' person does not appear in section 82(1)(d) of the Uniform Law, the concept is closely related and overlaps with whether a person is 'unable to fulfil the inherent requirements of an Australian legal practitioner'. The Board submits that whether a person is unable to carry out the inherent requirements of practice as an Australian legal practitioner is a relevant matter to which the Board may have regard in determining whether a person is a fit and proper person. The Board referred the Tribunal to section 45(3) of the Uniform Law and rule 13(1)(m) of the Uniform Rules.
5. The Board also relies upon the applicant having put in issue before the Tribunal the question as to whether he is a fit and proper person to hold an Australian practising certificate. The applicant has relied upon being a fit and proper person in his application to the Tribunal and his statement, dated 4 October 2023, exhibited to his affidavit filed for the stay application.
6. On behalf of the applicant, it was submitted that the Board cancelled the applicant's practising certificate exclusively on the basis of section 82(1)(d) of the Uniform Law, being that he was unable to fulfil the inherent requirements of a legal practitioner. It was submitted that it was not open to the Board under section 82(1)(d), to cancel the applicant's practising certificate on the basis of forming a reasonable belief that he was no longer a fit and proper person to hold a practising certificate.
7. The applicant submitted that the holder of a practising certificate being unable to fulfil the 'inherent requirements of an Australian legal practitioner' is likely to be intended as a reference to the ability of a practitioner, such as lawyer whose mental or physical health was inconsistent with the demands of practice. It was submitted that the more orthodox procedure for deciding whether a practitioner was a fit and proper person to hold a practising certificate would be the 'show cause procedure' or a disciplinary prosecution under the Uniform Law. The applicant relied upon the explanatory memorandum for the Uniform Law to emphasize that section 82(1)(d) was intended to deal with health concerns of practitioners. The applicant referred the Tribunal to MN Legal and Management Consultants Pty Ltd v Council of the Law Society of NSW [2018] NSWSC 1410 ('MN Legal'), a case relied upon by the Board in the decision and noted that the facts of that case were in relation to a practitioner with mental health issues, which meant she was unable to fulfil the inherent requirements of a legal practitioner.
8. The applicant conceded that it may be unnecessary and undesirable to finally determine the construction of section 82(1)(d) at this stage, when it may be a crucial question at the final hearing. However, it was submitted that it was far from established that the expressions 'fit and proper person' and 'inherent requirements of legal practice' in the Uniform Law are more or less the same thing in the present statutory circumstances. Just because a question may arise which is relevant to whether a person is unable to fulfil the inherent requirements of a legal practitioner does not mean that the question of fitness and propriety therefore arises.
9. The applicant submitted that section 100(7) of the Uniform Law has no application to this proceeding because it deals with proceedings about whether a person is a fit and proper person to hold a practising certificate and that question does not arise in the statutory sense in this proceeding.
10. In reply, the Board submitted that, in MN Legal, the Supreme Court of New South Wales held that the inherent requirement of a legal practitioner, amongst other things, relevantly for this case, included:
    1. The duty to be honest;
    2. The duty not to engage in conduct that brings the profession into disrepute; and
    3. To obey the law.
11. The term 'fit and proper person' is used on a number of occasions in the Uniform Law. It is used in section 45(2), as a prerequisite for a person to be granted or renewed a practising certificate. It is used in section 92(4) of the Uniform Law regarding the issuing of a show cause notice to a practitioner. It is also used in section 100(7) of the Uniform Law, when referring to particular types of reviews in which there is a reversal of the onus of proof and a presumption as to the truth of evidence before the Tribunal.
12. Section 82(1)(d) of the Uniform Law does not use the expression 'fit and proper person'. It instead used the expression 'inherent requirements of an Australian legal practitioner'. The Board argues that section 100(7) of the Uniform Law should apply to reviews under section 82(1)(d), as the concepts of fit and proper person to practice law and 'inherent requirements of an Australian legal practitioner' are closely related and overlapping.
13. On the basis of the decision in MN Legal, the concepts appear to overlap factually. However, they are not necessarily identical. If the intention was that the concepts were to be treated identically, the Act would have only used a single phrase.
14. The Board relied upon the interaction of section 45(3) of the Uniform Law and rule 13(1)(m) of the Uniform Rules, for the proposition that the 'inherent requirements of practice of an Australian legal practitioner' is a relevant matter to which the Board may have regard in determining whether a person is a fit and proper person. This interpretation argument arises from the interaction of the Uniform Law and the Uniform Rules, including the inclusion by use of the Uniform Rules of the concept of inherent requirements of an Australian legal practitioner in an assessment of whether a person was a fit and proper person under section 45. To interpret the statutory terms using this method contradicts the general rule of statutory interpretation that it is impermissible to use subordinate legislation to assist in the interpretation of related legislation, see for example Plaintiff M47-2012 v Director-General of Security [2012] HCA 46. The Board's submission is misconceived.
15. While noting the NSW's Supreme Court's conclusions on the matter in MN Legal, the Tribunal accepts the applicant's submission that it would not be desirable or necessary to reach a final conclusion at this interlocutory stage, as to the meaning of 'inherent requirements of legal practise'.
16. Section 100(7) of the Uniform Law specifically applies to reviews in which the question of whether a person is a fit and proper person to hold an Australian practising certificate is at issue. The Tribunal considers that such proceedings under the Uniform Law are in relation to matters where the provision of the Uniform Law makes such a fit and proper person assessment an issue, such as sections 45(2) and 92(4) of the Uniform Law, which expressly refer to the term 'fit and proper' person.
17. Section 82(1)(d) of the Uniform Law does not raise this issue. Similar factual matters and conclusions may arise in each type of matter, if the Board is correct as to its broader interpretation of 'inherent requirements of an Australian legal practitioner' pursuant to the reasoning in MN Legal. However, the Tribunal is not satisfied for the purpose of this interlocutory matter that the consideration of similar factual matters when deciding whether the Board reasonably believes that the person is 'unable to fulfil the inherent requirements of an Australian legal practitioner' means that the review is one in which the question of whether a person is a 'fit and proper person to hold a practising certificate' is at issue or otherwise engages section 100(7).
18. The Board also argued that, as the applicant had put at issue whether he was a fit and proper person to hold a practising certificate, this matter was in issue in the review. As discussed above the Tribunal is not satisfied that the consideration of whether the applicant is 'unable to fulfil the inherent requirements of an Australian legal practitioner' means that the review is one in which the question of whether he is a fit and proper person to hold an Australian practising certificate arises. This is a question of the interpretation of the Uniform Law. The fact that the applicant at some stages of the proceeding may have asserted that he is a fit and proper person to hold a practising certificate, does not change the requirements of the Uniform Law that the Tribunal must consider in conducting the review. For the purpose of this interlocutory matter, the statutory issue in this matter is the reasonable belief that the holder of a practising certificate is unable to fulfil the inherent requirements of an Australian legal practitioner.
19. The Tribunal is not satisfied that the provisions of the Uniform Law should be interpreted to mean that the Towie principles do not apply to this proceeding.

1. The Tribunal has therefore concluded that the Towie principles apply to this proceeding and the applicant has only waived his Towie rights in relation to the matters disclosed in his stay application material. The applicant remains entitled not to be required to provide further material about his case prior to the Board closing its case, save for an outline of argument in broad terms as to the issues in dispute.
2. The parties should confer and provide the Tribunal with proposed consent orders for the further conduct of this matter by the administrative mention date and if no agreement is reached the parties should each provide their own proposed orders for the further conduct of the matter.