the suspension of the applicant's local practising certificate, imposed by Law Institute of Victoria Limited by a notice in writing dated 7 March 2008, is lifted.

1. The application made by the applicant that Law Institute of Victoria Limited pay the applicant's costs of the review application is dismissed.

Mr J Barravecchio of Law Institute of Victoria Limited

1. Mr. McGrath is a legal practitioner at the present time. He was charged with criminal offences, whereupon the Law Institute suspended his practising certificate. Mr. McGrath now seeks to have the suspension lifted.

1. On 8 February 2008, a Victoria Police officer charged Mr. McGrath with two offences. The first charge is that Mr. McGrath knowingly possessed child pornography, in breach of s. 70.1 of the Crimes Act 1958. The second charge is that he knowingly transmitted images depicting a minor engaged in sexual activity, in breach of s.57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995. The first charge carries a maximum penalty of five years imprisonment, and the second charge carries a maximum penalty of ten years imprisonment.

1. The actions taken by Law Institute of Victoria Limited were taken in its capacity as a delegate of the Legal Services Board: see s.6.2.19(1)(d) and clause 8.14(1) of Schedule 2 to the Legal Profession Act 2004.
2. By a notice dated 7 March 2008, but which according to Mr. McGrath was given to him on 13 March 2008, the Law Institute suspended his practising certificate for a period of 56 days.
3. The notice was given to Mr. McGrath in accordance with s.2.4.22 of the Legal Profession Act 2004. The section provides that, on specified grounds, the Legal Services Board can suspend a local practising certificate immediately if it considers it to be "necessary in the public interest". Mr. McGrath was the holder of a local practising certificate prior to its suspension.
4. The section does not require the Board to notify the holder of the certificate of its intention to suspend the certificate. Put another way, prior to suspension the holder of the certificate can be deprived of the rights of procedural fairness which usually would apply, such as an opportunity to provide an explanation or to make representations to the Board. The Law Institute did not give Mr. McGrath notice of its intention to suspend his practising certificate, no doubt because it considered it necessary in the public interest to suspend the certificate immediately.
5. The grounds upon which a practising certificate can be suspended immediately are set out in s.2.4.20. The sole ground relied upon by the Law Institute in its notice was that Mr. McGrath is "no longer a fit and proper person to hold the certificate".
6. The maximum period for which a practising certificate can be suspended immediately is 56 days, calculated from the time at which the notice of suspension is given to the certificate holder: s.2.4.22(3)(b). The practising certificate held by Mr. McGrath was suspended for the maximum period of 56 days. Unless the suspension is lifted, the period of suspension will expire on 8 May 2008.
7. The notice of immediate suspension given to Mr. McGrath complied with s.2.4.22(4)(b), in that it informed Mr. McGrath that written representations could be made to the Board. Mr. McGrath did not make any representation to the Board, or to the Law Institute.

1. A person affected by a decision to immediately suspend a practising certificate can apply to VCAT to have the decision of the Board reviewed: s.2.4.37(1)(c). Mr. McGrath lodged an application for review on 31 March 2008, well within the period of 28 days allowed for such an application: see s.2.4.37(2).
2. When conducting a review, VCAT has "all the powers of the Board in respect of the decision": s.2.4.37(3).
3. These powers include a power to "lift a suspension at any time, whether or not in response to any representations made to it by the person": s.2.4.23(2). During the course of this hearing, counsel for Mr. McGrath made representations, and put forward a proposal, in support of a contention that the suspension of Mr. McGrath's practising certificate should be lifted.

The representations and the proposal put on behalf of Mr. McGrath:

1. Mr. Robert Miller of counsel appeared for Mr. McGrath. As far as representations are concerned, Mr. Miller contended that it was not necessary in the public interest to suspend Mr. McGrath's practising certificate immediately. He pointed out that the criminal charges have not been proved, and stated that they have not been admitted. He pointed out that the charges do not relate to legal practice, while accepting that conduct unrelated to legal practice might justify a finding that a person no longer is a fit and proper person to hold a practising certificate. He also maintained that it was not suggested by the Law Institute that conduct of the type alleged might continue, and thus require preventative measures in the public interest.
2. The proposal was of a different kind. At the time of suspension, Mr. McGrath was a sole practitioner conducting a practice at his home. Mr. Miller said that Mr. McGrath practised for 28 years before his practising certificate was suspended, and that he has an unblemished professional record. Mr. Miller said that Mr. McGrath has about 30 current files, and $245,944.78 in his trust account. No person has been appointed to conduct the practice during the period of suspension.
3. Mr. Miller said that Mr. McGrath is 71 years of age, and wishes to retire as from 1 July 2008. He said that Mr. McGrath was prepared to give an undertaking to the Tribunal, if the suspension is lifted:

(b) to take appropriate steps to wind up his practice by 30 June 2008;

(c) to close his trust account in an appropriate manner by 30 June 2008; and

(d) not to apply for any form of practising certificate for the financial year 2008-2009.

The Law Institute's response to the representations and the proposal:

1. After the representations and the proposal had been made, I allowed the Law Institute time to consider its position. When the hearing resumed, Mr. Barravecchio, who appeared for the Law Institute, informed me that the Law Institute strongly opposed the application for review, and was not prepared to accept the proposal.
2. Mr. Barravecchio said that Mr. McGrath is charged with criminal offences that are so serious as to render Mr. McGrath not a fit and proper person to hold a practising certificate. Because Mr. McGrath is not a fit and proper person, contended Mr. Barravecchio, it is in the public interest that his practising certificate be suspended immediately.
3. Mr. Barravecchio further contended that, if the Law Institute had not suspended Mr. McGrath's practising certificate, it would have been seen to be condoning Mr. McGrath's conduct. Furthermore, it would have been seen to be holding out to the profession and to the public that Mr. McGrath remained a fit and proper person to hold a practising certificate. In the circumstances of this case, said Mr. Barravecchio, that would be "incongruous".

1. On 7 March 2008, when the notice of suspension was signed by the Chief Executive Officer of Law Institute of Victoria Limited, the Law Institute considered that it was necessary in the public interest to suspend Mr. McGrath's practising certificate immediately. When that decision was made, the Law Institute did not have the benefit of the representations or the proposal made today on behalf of Mr. McGrath.
2. In the light of the representations, and in the light of the proposal backed by an undertaking, I do not consider it necessary in the public interest, as at today's date, to suspend Mr. McGrath practising certificate immediately. A major factor in making this decision is that Mr. McGrath is not to accept new work.
3. The representations and the proposal lead me to the conclusion that Mr. McGrath should be permitted to wind up his practice by 30 June 2008, and then retire as from 1 July 2008. Subject to Mr. McGrath giving an undertaking to the Tribunal in the form that I have mentioned, I propose to lift the suspension of his practising certificate.
4. I record that I made this decision in the knowledge that the Board, or its delegate, might take further action against Mr. McGrath at some time in the future. Be that as it may, I do not consider it necessary as at today's date to suspend his practising certificate immediately pursuant to s.2.4.22 of the Act.
5. Counsel for Mr. McGrath sought an order that the Law Institute pay Mr. McGrath's costs of the review application. I am not prepared to make a costs order for two reasons. First, s.2.4.22 is designed to allow a practising certificate to be suspended immediately, if the Board considers it necessary in the public interest, without waiting for representations from the person affected, and before an enquiry into the conduct of that person has been completed. Even where the power granted by the section is exercised properly, subsequent representations or enquiries might lead to the lifting of the suspension. That is what happened in this case. Secondly, although the notice of suspension informed Mr. McGrath that he could make representations to the Law Institute, he did not do so.