Pham v Legal Services Commissioner [2016] VSCA 256

24 Mr Kabo agreed that the computer installed at the Springvale office enabled employees at that office to access data at the firm's city office. Thus, it was possible for a person at Springvale to do legal work that was located in the city office. Mr Kabo also agreed that the applicant had attended the city office during the period 24 November 2011 to 24 February 2012 on numerous occasions to undertake training. However, Mr Kabo could only recall that the applicant had worked on two Saturdays during that period. Mr Kabo agreed that the applicant had received a Kabo Lawyers email address, a mobile telephone, and business cards describing him as a lawyer.

25 Mr Kabo said that he was a registered migration agent. The applicant's role, in the first three months of his engagement, was a marketing role. There was about one inquiry each week relating to the migration work, but none of those inquiries resulted in actual jobs for the firm. Apart from that work, the applicant also did a few errands on behalf of the city office.

26 Mr Kabo stated that all of the applicant's work had to be approved by him. The only substantial legal work carried out by the applicant was the pre-nuptial agreement, which Mr Kabo had asked him to draft.

27 The other witness, who gave evidence on behalf of the Commissioner, was Ms Hoang. Her evidence-in-chief was contained in a statutory declaration and two witness statements. In those documents, she stated that as the Springvale office was new, the applicant was originally employed for a probationary period of three months to assist with the administration, marketing and general management of that office. When the applicant sent his curriculum vitae to Mr Kabo, the firm was then advertising for an administrative person to work at the Springvale office. Most of the other applicants for the position had administrative or accounting backgrounds. Ms Hoang stated that the official opening hours of the office were from Monday to Friday between 10:00 am and 6:00 pm, and the applicant worked there during those hours. Ms Hoang stated that the applicant was not required to work on Saturdays. She understood that the applicant did attend the office on a few Saturdays, as he had suggested that that might bring the firm to the attention of potential customers who were attending the shopping precinct there. However, as time went on, there were insufficient clients attending the Springvale office to sustain it as a full time satellite office. At the commencement of the applicant's employment, there were minimal inquiries, and the applicant's tasks were mostly administrative and marketing. If a potential client came to the office, the applicant collected information from the client, and booked the client for a consultation with either Mr Kabo or Ms Hoang herself. The applicant was supervised by telephone calls and by email from the city office.

28 Ms Hoang stated she did not recall requesting the applicant to draft precedent documents. She denied that there was any requirement for the applicant to draft such documents. Kabo Lawyers used the LEAP precedent system, and it also had an extensive precedent library that had been developed over the life of the firm. During the period of the applicant's engagement, Ms Hoang had no need for new precedents to be drafted. On one occasion, in January 2012, she requested the applicant type up a contract in relation to a development property. That task did not involve legal work, but was simply a matter of copying the words that were on an existing document.

29 In cross-examination, Ms Hoang reiterated that at the initial interview, the firm was not seeking to employ a lawyer. Rather, the applicant was interviewed for a position that had been advertised as an administrative assistant. All the other people, who were interviewed for the position, were of an administrative, accounting or financial background. Although the applicant was subsequently engaged as a lawyer, initially he was not employed in that capacity, but rather in a marketing or administrative role.

30 Ms Hoang agreed that the applicant had worked a few Saturdays at the Springvale office. At the beginning of the period, Ms Hoang attended the Springvale office on one or two days per week. On those occasions, the applicant was not doing much work, because the office was very quiet. She agreed that the applicant was provided with a Kabo Lawyers email address, a mobile telephone, and a business card denoting him as a lawyer.

31 Ms Hoang did not agree that the applicant always had internet access to the city office of Kabo Lawyers. The computer system that was introduced was unreliable, and as a result it only provided the Springvale office with intermittent access to the city office. During the period of his engagement with Kabo Lawyers, the applicant provided legal services to a few clients, but at all times under the guidance of Mr Kabo or Ms Hoang. In re-examination, Ms Hoang stated that the applicant did very little legal work during the period he was employed by Kabo Lawyers. He had two or three files, one of them being a family law matter.

32 The applicant's evidence in chief consisted of a detailed statement, together with some 53 separate annexures. In his statement, the applicant stated that when he attended the Springvale office of Kabo Lawyers in November 2011, Ms Hoang told him that he was to be employed as a junior lawyer, and that the terms of his employment would be set by the relevant award. He described his first day at the office, where he was introduced to his duties by Ms Hoang. She told him that Mr Kabo and she wished to open an office in Springvale. Ms Hoang said that she would be organising the applicant's practising certificate, together with business cards, a Kabo Lawyer email account, and a Kabo Lawyer mobile telephone. Ms Hoang told the applicant that since the office was new, it would take time for people to trust it sufficiently to engage it to do work. Accordingly, Ms Hoang told the applicant that a computer system was being installed, that would enable the applicant to assist with work that came to the firm's city office. In addition, the system would permit the applicant to access precedents and documents, which was important because Ms Hoang wanted the applicant to draft and prepare new precedents (about three per week). Ms Hoang told the applicant that he would be the only lawyer at the Springvale office.

33 The applicant stated that on the first Saturday after he had commenced, he received a telephone call at his home from Ms Hoang, who asked him why he was not at work. As a result, the applicant understood that he was always required to work on Saturday. He was willing to do so, because that was his first employment in the legal profession.

34 The applicant stated that Ms Hoang was, for the most part of the first two weeks, at the Springvale office, and he had assisted her with current matters and observed her attending to clients. The applicant had also conducted legal research for her.

35 After about two months, the applicant had not received his practising certificate. When he raised the matter with Ms Hoang, she said that she had forgotten to attend to it. Accordingly, he applied for the certificate himself, which arrived four days later. The applicant stated that his main duties during working hours included taking potential clients' inquiries, taking down their personal details and current situation, and compiling a comprehensive file note that he sent to Mr Kabo and Ms Hoang.

36 The applicant further stated that when the new computer system was installed, he was able to perform his duties of drafting and preparing new precedents. He said that he had to prepare at least three precedents each week, which he would then upload onto the office computer system. The applicant said he had spent about eight hours extra each day, outside his normal working hours, working on the precedents. From Monday to Saturday, he would spend five hours after the end of each work day, and three hours before the start of each work day, on that work. He would also normally spend about 18 hours every Sunday doing his precedent work, legal research, and other work.

37 The applicant stated that during normal office hours he would be occupied with work coming from the Springvale office and from the city office. As a result, he would have to carry out the work of updating legal documents and precedents outside normal hours. Mr Kabo and Ms Hoang would give him deadlines for completing those tasks, which sometimes required him to work overnight.

38 As indicated above, there is no transcript or other record of the hearing on the day on which the applicant gave evidence. It is clear from the reasons of the Tribunal that the applicant gave oral evidence[4] and he was cross-examined.[5]

39 The applicant stated that during the Christmas period from 23 December 2011 to 8 January 2012, the city office was closed, but the Springvale office had remained open as usual.

40 The applicant stated that he was responsible for three legal matters, conducted under the supervision of Ms Hoang and Mr Kabo. The first was a matter which was resolved quite quickly and only required the client to inform the other party that he was seeing a lawyer. The second matter related to the preparation of a first home owners grant. The third matter was a family law matter that was conducted for about three months. During the period 27 February 2012 to 10 July 2012, the applicant's duties remained the same as previously.

41 In his decision, the Tribunal noted that the Commissioner was sought to prove four propositions, namely:

(a) The applicant was not employed as a solicitor for the entire period of 24 November 2011 to 10 July 2012.

(b) The applicant knew or ought to have known that he was not employed as a solicitor for the entire period 24 November 2011 to 10 July 2012.

(c) The applicant did not work for 17.5 hours per day, seven days per week during that period.

(d) The applicant knew that he did not work for 17.5 hours per day, seven days per week during that period.[6]

42 The Tribunal noted that, while the civil standard of proof applied, it was necessary to take into account the considerations referred to by the High Court in Briginshaw v Briginshaw.[7]

43 The Tribunal then stated that he had concluded that he was satisfied, on the evidence, that the applicant had been engaged as a subcontractor to assist with the administration, marketing and overall management of the new office of Kabo Lawyers for the period from 24 November 2011 to 27 February 2012. The Tribunal noted an email from the applicant to Mr Kabo dated 17 December 2011, in which the applicant had stated that his understanding was that he was to be a 'subcontractor' for a three month probation period which might then lead to a permanent position as an employee. The Tribunal further noted that the applicant could not have been lawfully engaged in supervised legal practice before 27 February 2012, as he did not, during that period, hold a practising certificate. In any event, the Tribunal was satisfied that, during that period, the applicant was performing administrative work. In that connection, he referred to an email from the applicant to Mr Kabo and Ms Hoang dated 1 February 2012, and an email by Mr Kabo to Ms Helen Hartsias dated 26 September 2012, which described the work of the applicant as administrative. The Tribunal also referred to the evidence of Ms Hoang and Mr Kabo, that the work performed by the applicant was administrative, and that he was engaged by the firm on a subcontract basis. Significantly, the Tribunal found, as the Commissioner had contended, that the applicant 'knew that he was not permitted to engage in supervised legal practice because he was not an employee and he did not hold a practising certificate'.[8] Further the Tribunal found the applicant's claim that he thought he held a practising certificate to be 'inherently incredible'.[9]

44 The Tribunal then addressed the issue whether the applicant had worked the hours claimed by him for the period 24 November 2011 to 10 July 2012 on that issue. On that issue, it accepted the evidence of Mr Kabo and Ms Hoang that the volume of work at the Springvale office was very small, and that little work was given to the applicant from the city office. The Tribunal referred to the applicant's evidence, in which he had admitted that he did not visit clients' homes, that he did not appear in court, that he did not go to court, and that he did not draw any briefs. It noted the applicant's evidence that he had only 'looked over' some statements of adjustments and assisted with one contract of sale. The applicant had said that he had only one inquiry about a criminal matter but it did not proceed.

45 The Tribunal rejected the applicant's evidence that he spent much of his time performing research and precedent development. It noted that that evidence was not supported by the testimony of Mr Kabo and Ms Hoang, and, further, it was completely improbable that the respondent would have been working the hours claimed by him. The Tribunal concluded:

... I am satisfied that the asserted hours are a construct in order to satisfy the two years' worth of supervised legal practice requirement.

The hours worked by the respondent (the present applicant), and the nature of the work performed by him are both entirely within his own knowledge.[10]

46 The Tribunal's found, as the Commissioner had primarily contended, that the applicant knew the relevant facts to be false. The Tribunal said:

Conclusion

I prefer the evidence of Mr Kabo and Ms Hoang over that of the respondent.

I am satisfied to the requisite standard that the respondent made statements in his statutory declaration declared on 7 August 2012 which were false and that he knew that they were false. The making of a declaration containing material which the deponent knew to be false is a clear breach of a practitioner's duty of honesty and candour and diligence in relation to the contents of documents. A false declaration by a legal practitioner can only be seen as constituting professional misconduct. Within the context of misconduct at common law, I am satisfied that the conduct is such as would be reasonably regarded as dishonourable or disgraceful by colleagues of good repute.[11]

47 Accordingly, the Tribunal found the respondent guilty of professional misconduct at common law as alleged in the first charge. He dismissed charge 2. He then referred to the written submissions in which both parties had addressed the issue of penalty, subject to a finding of liability. The Tribunal noted the submission on behalf of the Commissioner that the applicant's practising certificate should be suspended for a period of at least 24 months. He then concluded:

There is a need for specific and general deterrence together with a need to protect the reputation of the legal profession. Having regard to the respondent's inexperience, it is my view that a period of suspension of the magnitude submitted by the Commissioner would be excessive to the point of being punitive. Of far greater value in the case of a practitioner at the very commencement of his legal career is a disposition which focuses upon conditions of supervision and a requirement to complete extra training. Having said that, a period of suspension is warranted having regard to the nature of the offence.[12]

48 The Tribunal ordered that the applicant's practising certificate be suspended for six months. He directed that, on return to practice, the applicant's certificate was to be subject to a condition that the applicant was authorised to engage in legal practice as an employee only until the completion of a further 24 month period of supervised legal practice, and that the supervision was to be undertaken by a legal practitioner who was a principal of the firm that employs the applicant, and who works on a full time basis at the same office location. The Tribunal also directed that the applicant complete an extra two CPD points in ethics before the completion of his period of suspension.

Grounds of appeal from the decision of the Tribunal

49 On his application for leave to appeal to the Supreme Court pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998, the applicant relied on four grounds, namely:

(1) The Tribunal erred in finding that the Tribunal had jurisdiction to conduct the hearing. That ground of appeal was based on three separate propositions to which we shall shortly refer.

(2) The Tribunal failed to provide adequate reasoning for his decision. In his notice of appeal, the applicant relied on five aspects of the reasoning of the Tribunal , that he alleged were inadequate. He then set out, at extensive length, 22 matters which the applicant contended the Tribunal had failed to address in his reasons.

(3) The Tribunal 's findings were not open on the available evidence. The applicant relied on five separate matters in support of that ground.

(4) The Tribunal failed to comply with requirements of procedural fairness. The applicant relied on a number of different aspects of the hearing in that regard.

50 As noted by the primary judge, the applicant provided written submissions of 108 pages, containing 194 paragraphs, in support of those grounds. The respondent's submissions were of some 25 pages, containing 159 paragraphs. The applicant's reply submissions covered 106 pages, and comprised 251 paragraphs.

51 The judge addressed each of the four grounds raised by the applicant.

52 In respect of the first ground - whether the Tribunal had jurisdiction - the judge rejected each of the three submissions on which the ground was based.

53 First, the judge rejected the applicant's submission that the charges against him were that he had committed the criminal offence of perjury, and therefore the Tribunal did not have jurisdiction to hear those charges. His Honour stated that alleged misconduct by lawyers may give rise to both criminal consequences and disciplinary consequences. The Commissioner was not required to ensure that any criminal processes against the applicant were exhausted before instituting disciplinary charges in the Tribunal.[13]

54 The judge further noted that the charges against the applicant were not formulated in terms that required the Tribunal to investigate whether the applicant had committed a criminal offence. His Honour rejected the applicant's submission that the Commissioner could not bring a charge of professional misconduct on the basis of alleged facts that might form the basis of charges of a criminal nature. Further, it was not necessary for the Commissioner to proceed on the basis of an official certificate of conviction as contended by the applicant.[14]

55 Second, the judge then considered, and rejected, a submission by the applicant that the Tribunal lacked jurisdiction because the applicant had made the statutory declaration in his private and personal capacity. The judge noted that, in charge 1, the Commissioner did not contend that the applicant had made the declaration in the course of his legal work. Referring to the decision of the New South Wales Court of Appeal in New South Wales Bar Association v Cummins,[15] the judge stated that private misconduct 'closely connected with the practice of law' could amount to professional misconduct.[16] Although, at the time that the applicant made his declaration, he had left the employment of Kabo Lawyers, and was then unemployed, nevertheless he held a practising certificate with a supervised legal practice condition, and he made the declaration, and submitted it to the Board, in support of an application for the removal of that condition. Thus, the judge considered, the applicant made the declaration in his capacity as a legal practitioner relating to his right to practise. Accordingly, the Tribunal was entitled to take that circumstance into account in determining that the applicant was guilty of professional misconduct at common law.[17]

56 Third, the judge also rejected a submission by the applicant that the Tribunal had found him guilty of a charge that had not been brought against him. The applicant had submitted that the Tribunal had committed a jurisdictional error in finding him guilty of dishonesty, in circumstances in which he had not been charged with an offence involving dishonesty. The judge considered that the Commissioner had not sought to establish dishonesty in the framing of the charge brought against the applicant. Thus, his Honour considered, at no stage did the Tribunal address the issue whether the applicant had a dishonest state of mind in relation to the contents of the statutory declaration. In considering the question of penalty, the Tribunal had referred to the applicant's duty of honesty and candour, but that did not involve a finding of dishonesty by the applicant.[18]

57 In relation to the second ground of appeal, the judge rejected the applicant's contention that the Tribunal had failed to provide adequate reasons for its decision. The judge noted that there were only three witnesses in the case. The central issue, according to the judge, was whether the respondent had made a declaration containing statements that he knew or ought to have known were false. Those issues were capable of being dealt with concisely. The Tribunal's reasons referred to the evidence of the three witnesses. They explained sufficiently why the Tribunal preferred the evidence of Mr Kabo and Ms Hoang. The Tribunal's reasons, in rejecting the applicant's submissions concerning jurisdiction, and on the issue of penalty, were adequate.

58 The third ground of appeal, before the primary judge, was that the Tribunal made findings not open to it on the evidence. In his submissions to the judge, the applicant complained of 11 separate findings made by the Tribunal. Having referred to the relevant authorities,[19] the judge noted that the question was whether the findings of fact complained of, were open on the evidence. The judge concluded that, applying that principle, each of the findings complained of by the applicant were open on the evidence.[20]

59 His Honour then dealt individually with each of the Tribunal's five findings that were the subject of the applicant's complaint.[21] The judge rejected the applicant's submission that the witnesses called on behalf of the Commissioner had conceded the correctness of the evidence given by the applicant. The judge considered that that was not a fair reflection of the evidence of the witnesses Mr Kabo and Ms Hoang.[22] His Honour rejected the submission that the findings made by the Tribunal were not in accordance with the Briginshaw standard. His Honour observed that the Tribunal had expressly referred to that standard, and that the applicant had not demonstrated that it was not properly applied.[23] Finally, the judge rejected the submission by the applicant that his actions did not warrant disciplinary action. The decision as to penalty was essentially a discretionary decision. The penalty imposed by the Tribunal was not excessive or disproportionate. The conditions, imposed by the Tribunal, were 'directly responsive' to the circumstances of the offending and of the applicant's lack of experience as a practitioner.[24]

60 The judge also rejected the fourth ground of appeal, that the Tribunal had breached the rules of procedural fairness. The judge did not accept that those principles were contravened by the Tribunal in dealing with the issue of the jurisdiction of the Tribunal. The Tribunal had considered and dealt with the issue at the commencement of the hearing. Further, the judge did not accept the complaint by the applicant that the Tribunal had failed to inform the applicant that it would make findings in relation to the entire period of 24 November 2011 to 10 July 2012, and not just the limited period of 24 November 2011 to 27 February 2012. The judge described those submissions by the applicant as 'misconceived'. The judge also rejected the submission by the applicant that the Tribunal was biased in the manner in which he conducted the proceeding.

61 Accordingly, the judge found that the applicant had not established any of the grounds of appeal relied on, and he therefore dismissed the appeal.

Application for leave to appeal to the Court of Appeal - grounds

62 The applicant now relies on three proposed grounds of appeal in his application for leave to appeal, namely:

(1) The judge failed to provide adequate reasoning in his reasons for judgment.

(2) The judge made findings that were not open to him. In particular, the applicant contends that the judge made the following findings that were not open to him:

(a) That the Tribunal was correct in finding that it had jurisdiction to conduct a proceeding where an alleged disciplinary offence is also capable of being a criminal offence under s 314 of the Crimes Act 1958 , as well as at common law.

(b) That the Tribunal was correct to find that the applicant's 'alleged private or personal misconduct' amounted to professional misconduct.

(c) That the applicant's alleged misconduct was 'dishonourable or disgraceful' without him being dishonest.

(d) That the applicant 'acting innocently (ie having the genuine belief)' could still be found guilty of the offence amounting to professional misconduct.

(f) That the Tribunal was correct to find the offence had been made out 'despite the respondent conceding there was something he was not charge (sic)'.

(g) That the Tribunal was correct in finding that the applicant knowingly committed the alleged offence despite the respondent producing no evidence supporting that intention.

(h) That the Tribunal was correct in finding the alleged offence could be made out on the evidence despite there being no such evidence.

(i) That the Tribunal did not breach the fair hearing rule.

Under this ground it was also put that the judge erred by not correctly applying legal principles or relevant matters and that therefore his findings were not open.

(3) The judge's conclusions are unreasonable and no reasonable person could have arrived at them.

63 Before addressing the applicant's grounds, it is necessary, having regard to the breadth and detail of those grounds, to examine some aspects of the proceedings before the Tribunal, the nature of the case presented by the Commissioner and the applicant's understanding of that case.

64 The Commissioner, in his Notice of Decision to the applicant stated that he was satisfied that there was a reasonable likelihood that VCAT would find the applicant guilty of professional misconduct by inter alia executing and submitting a statutory declaration to the Legal Services Board in circumstances where he 'knew the contents' were false or alternatively, executed and submitted a statutory declaration to the Board in connection with the practice of law in circumstances where he 'knew or ought to have known that the declaration was false. Proceedings were then commenced before the Tribunal. The Commissioner then applied to the Tribunal for orders against the applicant under the Legal Profession Act 2004.

65 The applicant filed a witness statement in the Tribunal proceedings in which he joined issue with the evidence of Mr Kabo and Ms Hoang as to critical facts upon which the Commissioner intended to rely. The applicant therefore set out his version of events. In the course of doing so he acknowledged that he was aware that he could not practice as a lawyer without a practising certificate. He claimed that Ms Hoang had said she would apply for the certificate, a matter which she had denied. He acknowledged that in December 2011 he was aware that he did not have a practising certificate and made application for it and received it in February 2012. He set out the nature and hours of his work and continued to maintain that when account was taken of all of the hours worked outside normal working hours, he had satisfied the supervised work requirement. He asserted that the statutory declarations of the witnesses Mr Kabo and Ms Hoang were false as they contradicted facts in his statement and were mostly a 'fabrication'. He identified various matters contained in their declarations which he said were not true. The applicant took issue with the evidence of Hoang and Kabo as to his conduct and challenged all of their evidence, which, if accepted, would demonstrate that the impugned the fact were false and that he knew them to be so.

66 Following the completion of the evidence, pursuant to the order of the Tribunal, the parties filed written submissions. The Commissioner set out the four propositions which we have set out above.[25] In the Commissioner's written case under the heading 'Mr Pham knew that he was not employed as a solicitor for the entire period 24 November 2011 to 1 July 2012', the Commissioner submitted that the applicant 'was aware' that he was not employed as a solicitor for the entire period. The Commissioner further submitted that the applicant 'was aware that he did not have a practising certificate' and that he 'knew he was not engaged in legal practice for the entire period'. In the alternative the Commissioner submitted that he ought to have been aware of those facts. Under the heading 'Mr Pham knew that he did not work for 17.5 hours per day, 7 days per week for the period 24 November to 10 July 2012,' the Commissioner submitted that the applicant was 'clearly aware' of the hours he did and did not perform' being matters 'entirely within his personal knowledge'. The Commissioner made clear in his submission that his primary case was, as it always had been, that the statements of fact made by the applicant in the statutory declaration were false and that he knew they were false.

67 We observe that the evidence upon which the Commissioner relied to establish the falsity of those facts also necessarily established the applicant's knowledge that those facts were false as they were all facts within the applicant's personal knowledge. To that effect, the Commissioner submitted in his written reply at the Tribunal, that the applicant 'could not be mistaken' about whether or not he worked the hours asserted and whether or not he was performing legal work for that period of time as these matters were within his personal knowledge. The Tribunal's findings were to that effect. It was always apparent that if the evidence of Ms Hoang and Mr Kabo were accepted, a finding that the applicant did not know the impugned facts were false was not a realistic possibility.

68 The Commissioner submitted in his written case before the Tribunal that the making of a false declaration was a gross breach of a practitioner's professional duties and in particular the duty of honesty and candour. He further submitted that as the present case was 'one of dishonesty' it was necessary for the penalty to have a punitive effect. The Commissioner further submitted that the applicant's dishonesty related to his ability to practice as a lawyer noting that the applicant continued to assert the truth of his false declaration despite the evidence to the contrary. Further the Commissioner submitted as part of his case that the fact that the applicant's dishonesty occurred at an early stage of his practice did not affect his obligation to be honest.

69 It is convenient to also deal at this point with an assertion made by the applicant before the judge and in this Court that the Commissioner had made a concession that the applicant may have had an honest belief as to the matters in his statutory declaration.

70 In the applicant's correspondence in response to the Commissioner's initial letter setting out the allegations against him, the applicant said that when he prepared the statutory declaration he was in the belief that he met both statutory and policy requirements for two years of supervised legal work. The Commissioner set out that correspondence in his application for orders at the Tribunal. The applicant then repeated that response in his witness statement, again stating that he believed that he had met the statutory and policy requirements of two years supervised legal practice.

71 In the Commissioner's written submission at the Tribunal, he referred to these assertions of belief by the applicant. The Commissioner submitted that 'it may well be that he (the applicant) believes he has completed the two years worth of supervised practice but that is not the relevant question here'. The Commissioner then set out what were the relevant factual issues as particularised in the application to the Tribunal; namely whether the statements as to the nature and volume of the applicant's work during the stated period were true and whether the applicant knew those facts to be untrue or ought to have known that they were untrue.

72 In Part E of the applicant's written submission at the Tribunal, the applicant, under the heading, 'Honest and reasonable belief,' then referred to this aspect of the written submission of the Commissioner, described as a 'concession' in the proceedings before the judge. The applicant submitted that an honest and arguably reasonable or mistaken belief was relevant because it bore upon whether his acts were ' intentional.' Thus he said it was important to both liability and the question whether there should be any interference with his practising certificate. The contention, amplified before us, was that such a belief precluded a finding of any intentional falsehood and that accordingly no interference with his practising certificate would be justified.

73 Based upon such a contention, in Part F of his submission to the Tribunal, the applicant addressed the question of penalty and liability. Relying upon the fallacious submission that the Commissioner had made a concession that he had an honest belief as to the facts, the applicant then distinguished various cases which had been cited in which a disciplinary tribunal had made findings that a practitioner knew the falsity of the facts, had been dishonest, and had their practicing certificate removed.

74 Had the Commissioner charged the applicant with falsely stating that he had performed 'two years worth of supervised practice,' a belief as to that fact may have become relevant. But even if such an allegation had been made, given the falsity of the facts, it is difficult to see how the applicant could have held such a belief. The charges laid by the Commissioner were not, however, directed to the applicant's belief that he had done two years' worth of supervised legal work. The issue to which the applicant's state of mind was relevant, was further set out by the Commissioner in his written submission immediately following the statement that the belief asserted by the applicant was irrelevant. Further, the Commissioner in his written reply before the Tribunal, again addressed the manner in which the applicant had sought to use the Commissioner's so called 'concession' as to the applicant's belief. The Commissioner submitted:

Assuming that the respondent believes he has completed the 2 years worth of legal practice, that belief is based on a certain factual premise: that he worked for 17.5 hours a day, 7 days per week for 7 months and during that time that he was doing 'legal work'. It is the veracity of the factual premise contained in the Statutory Declaration - not the respondent's belief about whether or not he has completed 2 years worth of legal practice that is the subject of the Charges before the Tribunal.

75 It is implicit from the Tribunal's findings that it accepted the correctness of that submission and did not treat the applicant's asserted belief as relevant to the questions of fact raised by the charges.

76 As indicated above, the first charge, which the Tribunal upheld, alleged that the applicant was guilty of professional misconduct, within the meaning of s 4.4.3(1) of the Legal Profession Act 2004, namely, misconduct at common law. That section contains an inclusive definition of that phrase which does not exclude its meaning at common law.

77 The common law meaning of the term 'misconduct', in the context of behaviour alleged against a professional person, has been well settled for more than one century. Its origins are in the judgment of Lopes LJ in Allinson v General Council of Medical Education and Registration.[26] In that case, the Court of Appeal was concerned with a statutory phrase 'infamous conduct in any professional respect' in the context of disciplinary proceedings against a medical practitioner. Lopes LJ held that that phrase denoted conduct by a professional person '... which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency'.[27] Subsequently, in Re a Solicitor; ex parte Law Society,[28] the Court of King's Bench Division applied that definition to a solicitor in a case involving the meaning of the phrase 'professional misconduct' in the Solicitors Act 1888 (UK).[29] Subsequently, that meaning has gained currency in a number of Australian decisions.[30]

78 The present case involves the meaning of the phrase 'professional misconduct'. In Cummins,[31] the New South Wales Bar Association issued a summons in the Court of Appeal seeking an order that the name of the respondent, an experienced member of senior counsel, be removed from the roll of legal practitioners, on the ground that the respondent had failed to lodge a taxation return for 38 years. Spigelman CJ (with whom Mason P and Handley JA agreed) held that the court should declare that the respondent was not a fit and proper person to remain on the roll of legal practitioners. His Honour was satisfied that the respondent's complete disregard of his legal and civic obligations, relating to the payment of income tax, was of such magnitude that he must be regarded as permanently unfit to practise.[32] The Bar Association also sought declarations that the respondent had been guilty of professional misconduct, and that he was not a fit and proper person to be on the roll of legal practitioners. The Chief Justice held that it was appropriate in the case to make both declarations.

79 In reaching that decision, Spigelman CJ considered, at some length, the meaning of the term 'professional misconduct'. His Honour noted:

There is authority in favour of extending the terminology 'professional misconduct' to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of 'professional misconduct' overlaps with, and usually it is not necessary to distinguish it from, the terminology of 'good fame and character' or 'fit and proper person'.[33]

80 Spigelman CJ then examined a number of cases in which conduct by a professional, while not occurring directly in the course of professional practice, was considered to be sufficiently closely connected with practice to be characterised as professional misconduct. His Honour concluded:

The preparation and filing of tax returns is closely related to the earning of income, including professional income. The link is 'sufficiently close' to justify a finding of professional misconduct on the basis of Mr Cummins' failure to lodge returns for 38 years.[34]

81 That passage, from the judgment of Spigelman CJ in Cummins, was cited with approval by the High Court in its decision in A Solicitor v Council of the Law Society of New South Wales.[35] In that case, a solicitor had pleaded guilty to four counts of aggravated indecent assault on persons under the age of 16 years. He was convicted and sentenced to three months' imprisonment. Subsequently, following a further complaint by one of the victims, further similar charges were laid against the solicitor. While those charges were pending, the Law Society of New South Wales notified the solicitor it was considering disciplinary action in respect of the four offences the solicitor had admitted to committing. Subsequently, the solicitor was convicted of the further charges, but did not inform the society of the convictions.

82 The Law Society commenced proceedings in the inherent jurisdiction of the Court of Appeal of the Supreme Court for an order that the solicitor be removed from the roll of legal practitioners, on the ground that he had been involved in professional misconduct. The Law Society alleged that the conduct, constituted by the four admitted offences, was professional misconduct. It also alleged that the subsequent failure of the solicitor to disclose the later convictions was a breach of his duty of candour that amounted to professional misconduct. The New South Wales Court of Appeal found that both matters, relied on by the Law Society, constituted professional misconduct by the solicitor, and that accordingly the solicitor was not a fit and proper person to be a legal practitioner.

83 On appeal, the High Court held that the conduct of the solicitor, in committing the criminal offences, was not sufficiently connected to his practise as a solicitor to amount to professional misconduct. On the other hand, it held that the solicitor's conduct, in failing to disclose his subsequent convictions to the Law Society, constituted professional misconduct. In reaching those conclusions, the Court[36] stated:

The dividing line between personal misconduct and professional misconduct is often unclear. Professional misconduct does not simply mean misconduct by a professional person. At the same time, even though conduct is not engaged indirectly in the course of professional practice, it may be so connected to such practice as to amount to professional misconduct.[37]

84 Their Honours noted that the solicitor's duty of candour in his dealings with the Law Society was a professional duty, so that breach of that duty, by the solicitor failing to inform the Law Society of the further convictions, constituted professional misconduct by him.[38] On the other hand, the conduct of the solicitor, in committing the acts of indecency upon the two victims, did not occur in the course of the practice of his profession, and had no connection with that practice. Accordingly it did not amount to professional misconduct.[39] Their Honours concluded:

It is true that the conduct involved a form of breach of trust, being the trust reposed in the appellant by the mother of the children ... and the children themselves. However, the nature of the trust, and the circumstances of the breach, were so remote from anything to do with professional practice that the characterisation of the appellant's personal misconduct as professional misconduct was erroneous.[40]

85 The principles, discussed in the foregoing cases, can be summarised shortly for the purposes of the issues arising in this application. First, in order that the conduct, alleged against the applicant, constitute 'misconduct', it must be conduct that would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency. Secondly, to constitute 'professional misconduct', as alleged in the first charge brought by the Commissioner, the conduct of the applicant, as found by the Tribunal, must have been sufficiently closely connected with legal practice by the applicant, notwithstanding that it did not take place in the course of that practice.

86 Bearing those principles in mind, we turn to the grounds of appeal that the applicant seeks to rely on.

87 Ground 1 alleges that the judge erred by not providing adequate reasons in his judgment. In support of that ground, the applicant has contended that the judge's reasons were deficient in a number of different respects.

88 The principles relating to the obligation of a judge, or judicial officer, to provide adequate reasons for a decision, are well established and are not in dispute. In essence, the reasons must be sufficient to enable the parties to understand the extent to which their arguments have been understood, and either accepted or rejected, and to understand the basis of the judge's decision. In addition the reasons must be sufficient to enable an appeal court to ascertain the reasoning upon which the decision has been made.[41] However, that obligation does not require the judge to expressly deal with each and every argument that might have arisen in the course of the case. In Hunter v Transport Accident Commission & Anor,[42] Nettle JA (in an appeal arising out of an application under s 93(4)(d) of the Transport Accident Act 1986), stated:

... Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; ... while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue.[43]

89 The adequacy of the reasons must depend upon the issues, and the nature of the proceeding, in any particular case. In an appropriate case, the reasons may be adequate by a combination of what is expressly stated, in conjunction with the inferences that necessarily arise from what is expressly stated.[44] In Murray Goulburn Co-op Co Ltd v Fillipino,[45] Neave JA and Beach AJA stated:

In some cases, the path of reasoning which led to the ultimate conclusion is necessarily implicit in a sufficiently detailed recitation of the relevant material upon which the decision was based.[46]

90 In his written case, the applicant contends that the judge's reasons were deficient in eight particular respects. It is necessary to deal with each of those points seriatim.

91 Before considering those points individually, it is important not to lose sight of the nature of the case sought to be made by the applicant before the judge. As we have already noted, he filed extensive and lengthy written submissions, raising a multiplicity of variegated points about the proceeding in the Tribunal. While, in such a case, a judge is not relieved from the obligation to provide adequate reasons for the decision, nevertheless the content of that obligation is necessarily shaped by the manner in which the case has been put to the judge.

92 The first point, relied on by the applicant, is that the judge in his reasons[47] stated that the Tribunal did not ignore the test of professional misconduct postulated by the Tribunal in its previous decision in Legal Services Commissioner v Piva,[48] but (according to the applicant) his Honour failed to explain how that test was satisfied by the Tribunal.

93 A proper reading of his Honour's reasons reveals that there is no substance to that point. In his reasons, the judge referred, specifically, to Piva, and also to the decision of the New South Wales Court of Appeal in Cummins and the decision of the High Court in A Solicitor v Council of Law Society of New South Wales,[49] to which we have referred.[50] His Honour then dealt with the submission by the applicant that the Tribunal lacked jurisdiction, because (the applicant claimed) he had made the statutory declaration in his private and personal capacity. The judge referred to the submission, that the applicant had made to the Tribunal, that he should be found not guilty of professional misconduct, because the conduct alleged against him was not connected with legal practice, and therefore it did not fall within any of the three categories of cases identified by the Tribunal in its earlier decision in Piva.[51] The judge considered that the Tribunal's finding against the applicant was plainly open to it, because the unchallenged evidence was that the applicant had made the statutory declaration in his capacity as a legal practitioner seeking the removal of the supervised legal practice condition from his practising certificate. Accordingly, the judge concluded that the conduct, alleged against the applicant, was capable of constituting professional misconduct by him.[52] It was on that basis that the judge, later in his reasons, concluded that the Tribunal had not ignored the test stated in Piva, and his Honour also concluded that the findings by the Tribunal were open to it on the evidence.[53]

94 In that way, the judge explained, in clear terms, how the Tribunal did conclude, and was entitled to conclude, that the conduct of the applicant was sufficiently connected with legal practice so as to constitute professional misconduct, in accordance with the principles stated in the cases, and the decision of the Tribunal in Piva.

95 In that respect, not only did the judge provide adequate reasons for his decision, but, those reasons were, in our view, unassailable. As correctly observed by the judge, the applicant had made the statutory declaration, in his capacity as a legal practitioner, in support of an application by him to remove a condition under which he was entitled, by his practising certificate, to practise as a solicitor in the State of Victoria. In accordance with the principles to which we have referred, it is beyond argument that those facts compelled the conclusion that the applicant's conduct was sufficiently closely connected with legal practice by the applicant so as to constitute professional misconduct by him.

96 The second point, relied on by the applicant in support of ground 1, is that the judge rejected the applicant's submission that his evidence, before the Tribunal, was 'conceded' by the witnesses called on behalf of the Commissioner, and accordingly his evidence was unchallenged. In his reasons, the judge did not accept that submission as a 'fair reading of the evidence of the witnesses from Kabo Lawyers'.[54] His Honour noted that while some aspects of the applicant's evidence were conceded by Mr Kabo and Ms Hoang, the burden of the evidence of those witnesses was directly contrary to that of the applicant in fundamental respects.

97 The applicant submitted that the judge did not support that conclusion with any reasons. That is not correct. In fact, the passage in the reasons of the judgment, relied on by the applicant, was the concluding paragraph of that aspect of his Honour's consideration of the point in issue. Earlier in his reasons, the judge had noted that the Tribunal had expressed preference for the evidence of Mr Kabo and Ms Hoang over the evidence of the applicant where it was in conflict, and that the Tribunal had made clear the reasons for that preference. The judge noted that the Tribunal had referred to the fact that the consistent evidence of Mr Kabo and Ms Hoang was supported by documentary evidence, whereas the applicant's evidence was not supported by, but rather was undermined by, the evidence of other witnesses. The judge noted that the Tribunal took into account that the applicant did not obtain a practising certificate until February 2012, in determining the period during which the applicant performed his legal work. His Honour also noted that the Tribunal took into account the evidence of the witnesses from Kabo Lawyers about the nature of the work performed by the applicant. Finally, the judge noted that the Tribunal also relied on the 'complete improbability' of the applicant's evidence about the hours that he worked. It was for those reasons that his Honour concluded that the Tribunal's reasons provided adequate explanation for its findings.[55]

98 In subsequent passages in his reasons, the judge noted that the evidence of Mr Kabo and Ms Hoang was 'devastating' to the applicant's case as to the nature of the work that the applicant performed between 24 November 2011 and 24 February 2012, and as to the hours of supervised legal work undertaken by the applicant from 24 November 2011 to 10 July 2012.[56] It was in that context that the judge concluded that a 'fair reading' of the evidence of Mr Kabo and Ms Hoang contradicted the submission by the applicant that those witnesses had conceded the correctness of the evidence to be given by the applicant before the Tribunal.

99 Further, the judge was perfectly correct in concluding that the evidence of Mr Kabo and Ms Hoang contradicted the critical aspects of the evidence of the applicant. In particular, both witnesses gave evidence that conflicted, entirely, with the evidence of the applicant that he had worked as a lawyer during the period 24 November 2011 to 24 February 2012, his evidence as to the hours of supervised legal work undertaken by him between 24 November 2011 and 10 July 2012, and his evidence that a substantial part of his work during that period had been involved in the development of precedents for Kabo Lawyers. Neither Mr Kabo nor Ms Hoang made any concession of the correctness of the applicant's evidence in those critical respects. Rather, their evidence stood in complete contrast to the claims made by the applicant in those respects in his witness statement.

100 The third aspect of the judge's reasons, complained of by the applicant, relates to the judge's conclusion as to the penalty imposed by the Tribunal. The applicant contends that the judge failed to explain three matters, namely: the link between the offending and the conditions imposed by the Tribunal; how the penalty was not excessive or disproportionate in comparison with other 'similar' cases; or what the Tribunal did or did not take into account in mitigation of penalty.

101 There is no substance in any of those points. The judge noted that the conditions, imposed by the Tribunal, were 'directly responsive' to the circumstances of the offending, and to the applicant's position as a young and inexperienced practitioner.[57] That explanation was sufficient to account for the conditions stipulated by the Tribunal. It is trite law that the question, whether a penalty is 'manifestly excessive', does not admit of detailed submission or analysis.[58] It was sufficient for the judge to point out that, bearing in mind that the applicant had made the statutory declaration to the Board in relation to his application for variation of the conditions contained in his practising certificate,[59] the penalty imposed by the Tribunal was not excessive or disproportionate. We should add that, in our view, his Honour's conclusion in that regard is entirely correct. The offending, by the applicant, was serious. The penalty imposed by the Tribunal was, in all the circumstances, moderate, and by no means excessive. The conditions imposed were entirely appropriate for a lawyer who had not performed the required period of supervision and whose conduct and lack of insight demonstrated the need for guidance by an experienced principal.

102 Further, contrary to the applicant's submissions, the judge did address the matters that he contended the Tribunal had failed to take into account in mitigation of penalty. The judge specifically referred to the applicant's inexperience. It was for that reason that the Tribunal had rejected the submission by the Commissioner that he should suspend the applicant's practising certificate for a period of two years.[60] The judge also observed that the Tribunal's reasons took that matter into account in mitigation. A plain reading of the Tribunal's reasons supports that observation by the judge. The judge accepted the submission by the Commissioner that the cases, relied on by the applicant in relation to the principle of 'parity', turned on their own facts and are distinguishable. It was not necessary for the judge to rehearse the facts and circumstances of each of those 'comparable' decisions, and to distinguish them. In the context of disciplinary proceedings, in which issues of protection of the public and maintenance of the reputation of the legal profession are of foremost consideration, the circumstances of each case must necessarily differ. In that respect, it is significant that, in each of the cases relied on by the applicant, the practitioner in question had pleaded guilty to the charges. Such a plea is of some significance as it ordinarily connotes a degree of insight and recourse by the practitioner. By contrast, in this case, the applicant vigorously contested the charges and demonstrated a lack of insight as to his conduct. Thus, it is not surprising that the judge concluded that the cases relied on by the applicant were of little assistance in the instant case.

103 The fourth point, relied on by the applicant in support of ground 1, is that the judge erred by 'completely ignoring' the decision of the Full Court of the Federal Court in Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority.[61] The applicant contended that that decision was fundamental to his submissions that the Tribunal lacked jurisdiction to hear the charges, and that it had failed to adhere to the principles of procedural fairness.

104 That submission is without substance. The decision of the Full Court of the Federal Court in Today was not only distinguishable, it had also been overruled by the High Court.

105 The decision of the Full Court, in Today, concerned the jurisdiction of the Australian Communications and Media Authority ('the Authority') to investigate whether, and to make a determination that, the appellant had breached a condition of its commercial radio broadcasting licence by committing a criminal offence for the purposes of cl 8(1)(g) of pt 4 of sch 2 of the Broadcasting Services Act 1992 (Cth). That clause provided that each commercial radio broadcasting licence was subject to a condition that the licensee would not use the broadcasting service or services '... in the commission of an offence against any other Act or a law of a State or Territory'. As a matter of statutory construction, the Full Court of the Federal Court held that pursuant to that provision, the authority was not authorised to investigate whether, or determine that, a licensee had used its broadcasting service or services in the commission of such an offence. In particular, the court held that the statutory provision did not confer on the authority a power to make an administrative determination or finding that a licensee had committed a criminal offence.[62] Pausing there, by contrast, s 4.4.3 of the Legal Profession Act was concerned with the phrase 'professional misconduct'. It did not, by its terms, require the establishment of a criminal offence. In that way, the statutory provision under consideration in the present case was clearly distinguishable from the provision that was under consideration in the Today case.

106 Further, as we have stated, the decision of the Full Court has been overruled by the High Court in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd.[63] In particular, French CJ, Hayne, Kiefel, Bell and Keane JJ rejected the statement of principle by the Full Court that, as a matter of general principle, it was not normally to be expected that an administrative body would determine whether or not particular conduct constituted the commission of a criminal offence, stating:

Not uncommonly, courts exercising civil jurisdiction are required to determine facts which establish that a person has committed a crime.[64]

More generally, and contrary to the 'normal expectation' stated by the Full Court, it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action.[65]

107 Gageler J expressed a similar view in these terms:

An administrative body does not perform any part of that exclusively judicial function merely by making its own inquiry and determining for itself that a person has committed a criminal offence.

This Court has repeatedly held that a power of inquiry and determination takes its legal character from the purpose for which it is undertaken, and that a power of inquiry and determination undertaken for a non-curial purpose (be it arbitral, administrative, executive or legislative) can encompass formation and expression of an opinion about an existing legal right or obligation.[66] No distinction has been drawn in that respect between an opinion about an existing legal obligation sounding only in civil liability and an opinion about an existing legal obligation sounding only, or also, in criminal liability.[67]

108 The Court found that as a matter of construction, cl 8(1)(g) empowered the Authority to make a determination whether or not the respondent's broadcasting service had been used in the commission of an offence.[68]

109 Accordingly, the decision in Today, relied on by the applicant, is of no assistance to his case, but, contradicts the fundamental proposition sought to be made by him.

110 The fifth point, relied on by the applicant under ground 1, is that the judge ignored his arguments that the Tribunal had denied him procedural fairness, by failing to give him a further opportunity to make submissions about penalty.

111 Before addressing the applicant's submissions concerning penalty, it is necessary to say something further as to the course which the applicant followed before the Tribunal as to the question of penalty. In Part F of his written submission to the Tribunal, the applicant addressed the question of penalty and liability. We have referred to the applicant's submission that it could not be shown that he 'intentionally knew he was making a false declaration' as the Commissioner's so called concession as to his belief foreclosed the possibility of a finding that he knew the facts to be false. As we have already noted, the Commissioner had made no such concession as to the applicant's state of mind concerning the facts alleged to be false.

112 Based upon this misrepresentation of the Commissioner's position, the applicant confined his submission as to penalty to the possibility of a finding that 'he ought to have known' the contents of the declaration was false.

113 The applicant plainly enough appreciated that if the Tribunal accepted the evidence of Mr Kabo and Ms Hoang, the Tribunal would find the relevant facts to be false. For the reasons already discussed, it also obviously followed that the Tribunal would then find that the applicant knew those facts to be false. The applicant chose not to address those findings that would result if Ms Hoang and Mr Kabo's evidence was accepted. Instead, as we have said, he made submissions as to penalty on the basis that he did not know the facts to be false. In substance he contended that as he had no such knowledge and was not intentionally dishonest, removal of his practicing certificate was not appropriate.

114 The submissions made by the applicant before us concerning the opportunity to address the Tribunal on penalty is flawed for two reasons. First, during the hearing before the judge, the applicant abandoned his contention that he had been denied procedural fairness by the Tribunal in that way. In a footnote to his judgment,[69] the judge recorded:

A contention that VCAT failed to provide Mr Pham with a promised opportunity to make submissions in relation to penalty was abandoned at the hearing of the application for judicial review.

115 The judge's observation, in that respect, is correct. At the commencement of oral submissions before the judge, the parties each adopted, and substantially relied on, the written submissions that they had filed with the court. In the course of discussion with counsel for the respondent and with the applicant, a question arose as to whether, at the conclusion of the proceedings on the second day before the Tribunal (21 July), there had been discussion about the manner in which the parties might make submissions about the issue of penalty, should the Tribunal find against the applicant on the issue of liability. The applicant stated (to the judge) that the Tribunal had told the parties that, in such an event, the parties would come back before him and be given an opportunity to address him on a date to be fixed. The judge (correctly) noted that there was no evidence to support that proposition, and his Honour offered the applicant the opportunity to file an affidavit as to what the Tribunal said in that regard. Having been offered that opportunity, the applicant specifically declined to file such an affidavit, saying to the judge 'I don't think it's necessary'.

116 In those circumstances, the judge was well justified in concluding that the applicant abandoned his submission that he had been promised the opportunity to orally address the Tribunal on penalty.

117 Secondly, we see no error in the conclusion that , the applicant had been given an adequate opportunity to make submissions to the Tribunal relating to the question of penalty. After the conclusion of the hearing, the Commissioner filed submissions on the issues of liability and penalty dated 4 August 2014. In paragraph 3 of those submissions, it was noted that, at the conclusion of the hearing on 21 July 2014, orders had been made for the filing of written submissions. In response, the applicant filed undated written submissions, not only on the issue of liability, and also on the issue of penalty. The applicant, in his lengthy submission to the Tribunal raised no objection to the fact that the Commissioner in his written submission had made submissions as to penalty, raised no objection as to his need to respond to the Commissioner's submission on penalty and made no reference to the need for a further opportunity to make submissions as to penalty.

118 In the written submissions on the question of penalty at the Tribunal, the applicant pointed out that at the time he was 'a new and inexperienced lawyer'. He referred to a number of cases in which legal practitioners had been fined for making false declarations as the basis of a submission that suspension of his practising certificate for two years (as contended for by the Commissioner) would be disproportionate. In addition, he contended that his actions could, at worst, be described as 'reprehensible', but they were significantly less serious than conduct that would warrant disciplinary action. He further submitted that while his conduct might have merited investigation, it should have ended there, because that would have given him a sufficient 'wake-up call'. He repeated the submission that the penalty sought by the Commissioner (two years' suspension) was 'grossly disproportionate and improper'.

119 The applicant made no complaint as to procedural fairness before the judge, but, in any event, in the circumstances, there was no basis upon which the judge could find that the Tribunal had not given the applicant an opportunity to be heard in relation to the issue of penalty. We shall later return to the question, whether it was open to the judge to find that the opportunity provided to the applicant to address the question of penalty complied with the requirements of procedural fairness.

120 The sixth point, relied on by the applicant in respect of ground 1, is that the judge erred by 'completely ignoring' a particular aspect of the applicant's arguments relating to the Tribunal having conducted its proceeding in a manner that gave rise to an apprehension of bias. The applicant contended (in this application) that, at the conclusion of the Tribunal hearing on the second day (21 July 2014), the Tribunal 'after some persistence from the respondent' had made a concession that the respondent could make submissions relating to liability and penalty, in circumstances in which there had already been 'discussions between VCAT and the respondent regarding liability' at the conclusion of the first day (17 July), before the applicant had commenced his evidence. The applicant also now contends that the Tribunal did not give any direction that the applicant make submissions relating to liability and penalty. In that way, it is submitted that the Tribunal conducted itself in a manner which gave rise to a reasonable apprehension that it had already decided the case in favour of the respondent.

121 The applicant's written submissions on the question of bias, that were put before the judge, did not refer to the exchange between the Tribunal and counsel for the respondent, that is now relied on in support of this point. His written submissions before the judge, in response to the respondent's submissions, referred briefly to that exchange, but did not do so in a manner that made it clear that the applicant contended that it was evidence of apparent bias by the Tribunal.

122 In any event, the point relied on by the applicant is not supported, but rather it is contradicted, by the materials relating to the proceedings before the Tribunal. At the conclusion of the first day of the hearing (17 July), Mr Kabo and Ms Hoang had completed their evidence. The parties discussed with the Tribunal the manner in which the remainder of the hearing was to take place. Counsel for the respondent proposed that on completion of the evidence and cross-examination of the applicant, she would be happy to do written submissions in relation to the issue of liability. After further discussion between the parties and the Tribunal the matter was adjourned until 21 July 2014.

123 Pausing there, the interchange between the Tribunal and counsel for the respondent was unimpeachable. It is common, and often necessary, for the parties to discuss with the Tribunal the manner in which the remainder of the hearing was to be completed. As we have already noted, there is no transcript or record of the hearing on the second day. However it is clear, from the matters to which we have already referred in relation to the previous point, that an order was made that the parties file and serve written submissions on both liability and penalty. Obviously, the submissions as to penalty were to be made subject to the Tribunal first being satisfied that the applicant had engaged in the professional misconduct alleged in the charges against him.

124 The seventh point, made by the applicant in support of ground 1, is that the judge ignored:

(i) That both of the respondent's witnesses conceded 'to literally every aspect' that was put to them through cross-examination by the applicant; and

(ii) That the applicant's statement regarding the hours worked in his statutory declaration was based on his belief, and that the respondent produced no evidence contradicting that belief by the applicant.

125 The first aspect of that point - that the respondent's witnesses (according to the applicant) conceded every aspect put to them in cross-examination - is simply not borne out by a reading of the transcript. In the passages of his reasons to which we have already referred, the judge correctly noted that their evidence was 'devastating' to the case sought to be made by the applicant.

126 The second aspect of the point is equally without substance. In his reasons, the judge stated that the Tribunal was entitled to find (as it did) that the applicant made the statutory declaration knowing the contents to be false, and that that finding necessarily involved the rejection of the proposition that the applicant made the statement in the honest and reasonable, but mistaken, belief that its contents were true.[70] It was self-evident that each of the matters deposed by the applicant, in its statutory declaration, which were the subject of the proceedings, were within the knowledge of the applicant. As we have said, the Tribunal not only found, that those statements were false, but that the applicant knew that they were false. Having regard to the nature of the evidence of the matters that were within his own knowledge, the inference was a compelling one that the applicant knew of the falsity of those statements when he made them. A judge (and a Tribunal) are not required, in giving reasons, to set out all of the steps that lead to such a conclusion.

127 The final (eighth) point relied on by the applicant, in support of ground 1, is that the judge erred by '... completely ignoring the fact that the respondent had conceded that the appellant was found guilty (ie making a false declaration asserting that he had completed two years' worth of supervised legal practice) of something the appellant was not even charge (sic)'.

128 That point is misconceived. In its written submissions to the judge, the respondent noted that the applicant had misunderstood the nature of the charges and the case that was put before the Tribunal, as the applicant had not been charged with making a false statement that he had completed two years of supervised legal practice. Rather, the charges alleged that he had made false statements relating to the period of time in which he declared that he was employed as a lawyer, and relating to the hours that he declared he worked during that period. It was those two aspects of the statutory declaration that the respondent alleged were false. Equally, it was those two aspects of the statutory declaration that the Tribunal found were false to the knowledge of the applicant.

129 For the foregoing reasons, each of the eight points, relied on in support of ground 1, are without substance. It follows that the applicant should not be given leave to appeal in respect of ground 1.

130 Ground 2 alleges that the judge erred by making findings that were not open to him. As with ground 1, in his written submissions, the applicant has relied on a large number of points in support of ground 2. In oral submissions, the applicant focused on one particular aspect of those submissions, namely, that it was not open to the judge to conclude that the Tribunal had not breached the principles of procedural fairness by receiving submissions on the issue of penalty before reaching his decision on whether the charges against the applicant had been established by the Commissioner. We shall deal with that submission first, before turning to the various points raised by the applicant in his written submissions.

131 The applicant contended that the principles of procedural fairness preclude a Tribunal from dealing with the issue of penalty before it has made a conclusion on the question of liability. In effect, the applicant submitted that that was an inflexible principle, so that it was not open to the judge to conclude, in this case, that the Tribunal had afforded him procedural fairness in circumstances in which the Tribunal received submissions, from both parties, on the issue of liability and penalty at the same time. In support of that submission, the applicant referred to and relied on the decision of the Court of Appeal of New South Wales in Battle v Bundagen Cooperative Limited [No 2].[71]

132 The submission made by the applicant is not supported, but is indeed contradicted, by a number of authorities. Further, for reasons that we shall outline, we are satisfied that there was no denial of procedural fairness to the applicant in the course adopted by the Tribunal in this particular case. However, as we shall also amplify, in our view the procedure adopted in this case was not optimal, and certainly should not be replicated as a matter of course.

133 In Battle, the respondent Cooperative, at a general meeting, passed a special resolution that the appellant be expelled from membership of it, and that he depart its property. The appellant submitted that, in passing that resolution, the respondent failed to comply with the rules of the Cooperative, and also that he had been denied procedural fairness, by not being permitted to make submissions on the issue of penalty separately to the issue of liability. Hodgson JA held that the resolution passed by the respondent was not authorised by the rules of the Cooperative. The appellant argued that, to comply with the principles of procedural fairness, it was necessary that the question of guilt must be decided before penalty was considered. In support of that proposition, counsel submitted that the decision of the Court of Appeal of New South Wales in Hall v New South Wales Trotting Club Ltd[72] established the principle that in each case such a sequential two stage process must be complied with. Hodgson JA (with whom Campbell JA agreed) held that there was no rule of law mandating that such a process be adopted in all cases.[73] His Honour went on to express the view that it would, however, be preferable for a separate submission on penalty to be heard after a determination of guilt was made, but that was not mandatory in every case.[74]

134 In stating those principles, Hodgson JA referred to the observation of Campbell J (as his Honour then was) in McClelland v Burning Palms Surf Life Saving Club[75] that there was 'no rule of law to the effect that it is not possible for there to be a single hearing which addresses both questions of guilt, and on a contingent basis, questions of penalty'. Hodgson JA then stated:

I agree with Campbell J that there is no rule of law mandating a two stage process in all circumstances. In cases like Hall and Forge, where there are both a substantial number of different findings on guilt that could be made, and also a considerable range of consequential penalties that could be imposed, it is generally the case that natural justice does require first a determination of what findings are made on guilt, and second an opportunity to be heard concerning the range of possible penalties. Otherwise, it is not possible for submissions concerning penalty to be appropriately focused. However, in my opinion, if for example there were only two possibilities on guilt, that is, either guilty or not guilty of one charge, then it could be that submissions concerning penalty could be appropriately focussed on a single stage hearing.[76]

135 In a separate judgment, Sackville AJA held that, properly construed, the particular rule of the Cooperative, that had been invoked, required a two-stage process to be adopted before a special resolution could be passed to the expulsion of a Tribunal.[77] His Honour then stated:

If this is not the correct construction of rule 47(a), I would have accepted Mr Battle's argument that he was denied a reasonable opportunity to be heard in the circumstances of this particular case. It is difficult to understand, in a case where the allegations involve a large number of possible combinations and permutations of detrimental conduct, how Mr Battle could have had a reasonable opportunity to argue against expulsion when he never knew the precise case he had to meet on that issue.[78]

136 Thus, properly analysed, the decision of the New South Wales Court of Appeal in Battle is not authority for the proposition that, a Tribunal or administrative body must always first conclude and determine the issue of liability, before determining the question of penalty. Hodgson JA specifically rejected that proposition. Sackville AJA did not rely on, or articulate, any such proposition. Rather, on the facts of the particular case, he concluded that there would have been a denial of procedural fairness, because, given the particular facts of the case, it would not have been possible for the appellant realistically to make proper submissions on penalty before he knew what allegations had been found against him.

137 In that respect, the facts of the present case are quite different. The allegations against the applicant were concise and pointed. As noted by the Tribunal, in short, they involved the allegation that the applicant made a statutory declaration containing two assertions that he knew were false, namely, as to the period during which he had been employed as a lawyer, and, secondly, as to the hours of work carried out by him under supervision during that period. As we have already said, proof of the falsity of those facts, necessarily established knowledge by him that they were false as they were all matters, the accuracy of which was entirely within his own knowledge. This was not a case where the practitioner should have but failed to make inquiry of others to ascertain the facts, or where the practitioner suffered from some impairment that affected his ability to appreciate the facts. There was only one basis upon which a finding of guilt could rest. If the Tribunal accepted the evidence of Mr Kabo and Ms Hoang that the facts were false, the applicant must have known that to be so. In such a confined case, notwithstanding that the issue of liability had not been determined against him, the applicant well knew the matters that he would need to address on the issue of penalty, on the hypothesis that the Tribunal upheld the charges against him.

138 We observe that, with respect, Hodgson JA (and Campbell JA) were correct in Battle to reject the proposition that the New South Wales Court of Appeal in Hall had established, as a strict requirement in every case, that a sequential two stage process be adopted.

139 In Hall, the appellant was a member of the respondent club, and an owner of horses registered with the club. After the conclusion of a trotting meeting, in a fit of anger, he abused and struck a night watchman in the car park to the club. The stewards initiated an inquiry into those events, in the course of which they heard the version of both the night watchman and the appellant, and other witnesses. After the appellant had withdrawn, the stewards deliberated, and having done so, called the appellant in, charged him with misconduct, and disqualified him for a period of three months. By a majority (Mahoney JA dissenting) the New South Wales Court of Appeal held that because the stewards had not heard the appellant at all on the matter of penalty, there had been a relevant denial of natural justice, so that the disqualification of him was invalid and void. Hutley JA stated:

The duty of a domestic tribunal to hear the accused is not, in my opinion, fully performed by hearing one part of the case. Once there is a finding of guilt, the stewards must consider the penalty. The penalties which may be inflicted ... may be severe. The person found guilty cannot really address until he knows of what he has been found guilty. I am prepared to assume in this case that the stewards found Hall guilty of all the various acts of misconduct which had been referred to in the court of inquiry, and that he understood that. This did not dispense with the duty of the stewards to hear him on the question of penalty.[79]

140 Pausing there, that passage from the judgment of Hutley JA was, quite evidently, slender support for the proposition by counsel for the appellant in Battle, that there must necessarily be a requirement for a two stage process on the issues of guilt and penalty.

I am satisfied that the stewards' failure to invite the appellant to address on penalty necessarily means that he had no opportunity to make any relevant statement upon this most important aspect of the proceedings. Upon this point I agree with what has been written by Hutley JA ... .[80]

142 In addition to Battle, there are a number of decided cases in which the courts have rejected the proposition that there is a universal rule of the kind contended for by the applicant, requiring a Tribunal, in each case, to adopt a two-stage process.

143 In Barnes v Australian Telecommunications Commission & Anor,[81] the applicant was charged with six charges under the Telecommunications Act 1975 (Cth) in respect of conduct arising out of his employment. They each alleged particular derelictions of duty by the applicant. An authorised officer of the respondent found the charges proven, and determined that the appellant be dismissed from the service of the respondent. The appellant then appealed to the Disciplinary Appeal Board. At that hearing, the appeal board heard evidence relating to the proof of charges, and evidence relating to penalty, together. On review before the Federal Court, Spender J held that that process did not, of itself, constitute a breach by the respondent of the principles of procedural fairness. His Honour, however, upheld the application before him, because, during the hearing in question, the Tribunal had received material that was not disclosed to the applicant. In respect of the 'two-stage' process now contended for by the applicant, Spender J stated:

In my opinion, the fact that the Board did not proceed first to consider the question of whether the charges had been made out and then move on to consider the question of penalty, but received submissions from both parties concerning penalty at the same time the submissions whether the charges had been made out or not, does not involve a denial of natural justice nor constitute, in the circumstances of this case, an appellable error.

It seems to me clearly desirable that, where there is an inquiry directed both to whether an offence has been made out and, if so, what is the appropriate penalty or penalties, to proceed, as a court ordinarily would, to determine the question of liability before addressing the question of penalty. However, failing to proceed in that fashion is not a breach of the rules of natural justice, if in truth a person has been given an opportunity to address on penalty, should the Board come to a conclusion adverse to him on the question of guilt.[82]

144 Those principles are well supported by authority. In the subsequent decision of the Court of Appeal of Western Australia in Rush v WA Amateur Football League (Inc),[83] the appellant was a player, coach and official of a club within the Western Australia Amateur Football League. At the time of the disciplinary hearing with which the case was concerned, he had been involved in the playing or coaching of amateur football for 27 years. At a hearing of the management committee of the league, he was found guilty of two charges, and suspended as a player, coach or official for the remainder of the 2002 season and for the whole of the 2003 season.

145 In Rush, the appellant contended that there had been a breach by the management committee of the rules of procedural fairness because after the charges against him had been found to be proven, no second hearing was conducted to receive submissions in mitigation of penalty. Instead, matters of mitigation had been heard at the same time as the issue of liability. The Court of Appeal rejected the appellant's contention. Both Pullin JA (with whom Wheeler JA agreed) and Buss JA held that there was no absolute requirement that a Tribunal conclude the issue of liability before hearing submissions on the issue of penalty. Rather, their Honours considered, the question in each case was whether an adequate opportunity had been afforded to the applicant to address the question of penalty.[84] In the circumstances of the case, the court was satisfied that the appellant had been accorded such an opportunity, notwithstanding that the opportunity afforded to the applicant to put forward matters in mitigation was before the question of his guilt had been resolved. Buss JA added that while it was desirable that, in such a case, the issue of liability be concluded before the Tribunal considers the issue of penalty, nevertheless there is no universal rule requiring that process to be adopted.[85]

146 In Puryer v Legal Services Commissioner,[86] the appellant was charged with misleading the Supreme Court and failing to meet his obligation of frankness and candour to the court. After the conclusion of hearing evidence relating to those charges, the Queensland Civil and Administrative Tribunal made orders for the provision of written submissions, and otherwise adjourned the matter in order to reserve its decision (and also to determine a procedural application). Subsequently, it delivered a written decision upholding the charges against the appellant, and ordering that the appellant's name be removed from the roll of practitioners. The appellant appealed to the Court of Appeal of Queensland. One of the grounds of appeal, relied on by the appellant, was that there had been an abuse of process in that the respondent had dealt with the issue of penalty, as well as the charges, in the written submissions it had filed with the Tribunal, and in doing so had presented information to the Tribunal as to the previous breaches by the appellant before the Tribunal had concluded the issue of liability. The Court of Appeal rejected that contention. Holmes JA (with whom Gotterson JA and North J agreed) stated:

Generally speaking, it is not a denial of natural justice for a disciplinary body to receive submissions on both charge and penalty at the same time, provided the person charged has been given the opportunity to address on penalty should the question of guilt be resolved against him. Here, the appellant had the opportunity - although he did not take it - to respond to the Legal Services Commissioner's submissions on penalty.[87]

However, the court added a rider, namely, that it considered that that practice, of receiving submissions on penalty before concluding the issue of liability, is 'generally undesirable'.[88]

147 Thus, the contention by the applicant in this case, that the Tribunal's process necessarily involved a breach of procedural fairness, is not supported, but contradicted, by authority. Further, as we have already observed, in the particular facts of this case, it was open to the judge to conclude, correctly, that the applicant was not denied procedural fairness by the procedure adopted by the Tribunal. As we have noted, the applicant only faced limited and very specific allegations. He was able fully to, and did, address the issue of penalty, in relation to those allegations, before the Tribunal concluded the issue of liability.

148 In his dissenting judgment, Cavanough AJA has referred to a number of authorities, to which counsel did not refer in the course of submissions. We do not consider that those cases alter, in any relevant respect, the conclusions that we have just stated.

149 In Legal Practitioner v Council of the Law Society of the ACT [No 2],[89] the appellant, an Australian legal practitioner, was the subject of a number of complaints by three former clients about trust fund dealings. The complaints were various, including misappropriation of trust funds, demands by the practitioner for cash payments, failure to give receipts for cash payments, failure to deposit monies into the clients' trust account and to issue trust account receipts, failure to render invoices, the transfer of monies from the practitioner's trust account to the practitioner as payment for legal fees without supporting invoices, and the failure to issue trust account statements.[90] The Council of the Law Society of ACT applied to the ACT Civil and Administrative Tribunal for an order in relation to those complaints, alleging that the practitioner was guilty of professional misconduct, or alternatively unsatisfactory professional conduct, on 19 grounds.

150 On 24 January 2013, having heard the evidence relating to those charges, the Tribunal found that 17 grounds were made out and found the practitioner guilty of professional misconduct. Without inviting submissions on penalty, the Tribunal recommended that the practitioner's name be removed from the local roll and be publicly reprimanded. Subsequently, at the behest of the Council, the Tribunal purported to re-open the hearing in relation to penalty and costs. Having convened a hearing in relation to that matter, the Tribunal made the same orders that it had originally made. On appeal, the practitioner argued that the Tribunal had erred by failing to afford him procedural fairness before imposing penalty in the first instance, and that the purported re-opening of the hearing was ineffective, because after disposing of the matter at the first hearing, the Tribunal was functus officio.

151 Unsurprisingly, Murrell CJ held that there had been a fundamental breach of procedural fairness at the first hearing on 24 January 2013. In relation to the second issue, her Honour found that the Tribunal did not have the power in the circumstances to re-open and re-convene the hearing. Accordingly she set aside the orders that the Tribunal originally made on 24 January 2013, and the orders subsequently made by the Tribunal.

152 In determining that there had been a breach of procedural fairness, Murrell CJ stated:

Both the tribunal and the respondent accepted that, prior to imposing a penalty and costs on 24 January 2013, the practitioner had been given no opportunity to make submissions about penalty and costs. During the substantive hearing, it had been anticipated that, at the conclusion, there would be an opportunity to make submissions. In any event, as a general proposition, a professional person should not be required to formulate submissions about appropriate penalty orders until the disciplinary tribunal has determined whether and in what respects the person's conduct constituted professional misconduct ... .[91]

153 In the context of this case, it is relevant to make two observations about the general proposition stated by Murrell CJ in the last sentence of that passage. In the first place, it was clearly obiter dictum. The plain fact was (as conceded by the respondent in that case) that the applicant had had no opportunity, at all, to make submissions on the issue of penalty. Secondly, the proposition stated by Murrell CJ - that generally a professional person should not be required to address penalty before the issue of guilt was decided - was made in the context of a case in which, as we have noted, a number of charges were brought against the applicant, and in which the applicant could not have sensibly addressed the issue of penalty unless and until he knew which of the 19 charges against him had been upheld.

154 As noted by Cavanough AJA, Murrell CJ cited two previous decisions of the New South Wales Court of Appeal in support of that proposition, namely, Lucire v Health Care Complaints Commission[92] and King v Health Care Complaints Commission.[93]

155 In Lucire, the medical practitioner, a psychiatrist, provided treatment to a patient over a period of eight months. The last attendance was on 5 July 2007. Later on the same day, the patient killed her father and one of her sisters, and severely wounded her mother, in the course of a psychotic episode. The respondent Commission referred a complaint against the practitioner to the Medical Tribunal. The complaint was particularised in 31 separate paragraphs and subparagraphs. As observed by the Court of Appeal, a number of the paragraphs had internal limbs, usually conjoined by 'and/or'. The Commission put the complaint before the Tribunal on the basis that some of the particulars themselves were sufficiently serious to constitute professional misconduct, whereas other particulars, taken individually, might not be so characterised, but taken cumulatively could constitute professional misconduct.

156 After hearing evidence relating to the complaint, the Tribunal reserved its decision. It subsequently (on 24 August 2010) handed down its decision, in which it upheld the allegations contained in about one half of the particulars. At that stage the Tribunal made no finding in respect of whether the practitioner's conduct constituted professional misconduct. At that hearing, both parties accepted that it would be inappropriate to tender material, relating to the appropriate protective orders, before the Tribunal had reached a conclusion as to professional misconduct. Instead each party made some oral submissions concerning the significance of the findings. Each party subsequently filed written submissions. The practitioner's written submissions sought to reserve her position with respect to appropriate protective orders, and were restricted to the question whether the conduct was sufficiently serious to constitute professional misconduct. However when the Tribunal re-convened (on 27 August 2010), the Tribunal announced its findings that the practitioner's conduct did not constitute professional misconduct, but made findings of unsatisfactory professional conduct on behalf of the practitioner. The Tribunal then proceeded to impose conditions on the practitioner's registration, notwithstanding objection made on behalf of the practitioner by her legal counsel.

157 It was in those circumstances that the Court of Appeal was satisfied that the course adopted by the Tribunal was procedurally unfair. Basten JA (with whom McColl JA and Sackville AJA agreed) stated:

As this Court has noted on previous occasions, the fact that the definition of professional misconduct was framed in terms of the available orders, did not entail the imposition of such a penalty upon a finding of professional misconduct. To say that such a penalty was justified was not to say that it should be imposed, or must be imposed, in the particular circumstances of the case. However, the need to maintain this distinction, gives practical support to the practitioner's submission that she should not have been required to address submissions to the Tribunal on the appropriate orders

until the Tribunal had determined whether and in what respect or respects her conduct constituted professional misconduct.

The second significant factor in assessing the reasonableness of the opportunity afforded to the practitioner to present evidence and address submissions on penalty flows from the fact that both sides wished to present evidence and were ready to do so on Friday, August 27. Each should have been accorded that opportunity; the fact that the practitioner was denied the opportunity involved procedural unfairness of which she is entitled to complain.[94]

158 It may be observed that the decision in Lucire does not, in any way, support the proposition that the principles of procedural fairness require, in every case, that a Tribunal adopt a sequential two stage process, as contended for on behalf of the applicant. Rather, in the particular factual circumstances of the case in Lucire, it was clear that procedural fairness could only have been afforded to the practitioner in circumstances in which the parties each knew whether and in what respect or respects, the conduct of the practitioner constituted professional misconduct or unsatisfactory professional conduct. Further, in the facts of that case, each of the parties expected and wished to present evidence, in relation to the appropriate protective orders, after the Tribunal had concluded that question. In each of those respects, the facts of the present case are quite different and distinct to the facts that pertained in Lucire.

159 In King v Health Care Complaints Commission,[95] the respondent Commission referred a complaint against the appellant medical practitioner to the New South Wales Medical Tribunal that the appellant had been guilty of unsatisfactory professional conduct and/or professional misconduct. The complaint concerned allegations against the appellant relating to his treatment of three female patients. The complaint was particularised in a number of paragraphs and subparagraphs. In the case of each patient, it was the subject of a number of particulars, in respect of various aspects of the treatment by the appellant of that patient. At the conclusion of the hearing, the Tribunal reserved its decision. Subsequently, it published its decision, finding that the appellant was guilty of professional misconduct in that he had engaged in inappropriate sexual conduct towards the three patients. Without hearing from the parties, the Tribunal thereupon directed that the practitioner be de-registered on the ground that he was guilty of professional misconduct, and ordered that an application for review may not be made for a period of 18 months.[96]

160 The appellant appealed from the decision of the Tribunal. One of the bases of the appeal was that he had been denied procedural fairness as a result of there being no separate hearing on penalty. Again unsurprisingly the New South Wales Court of Appeal upheld that ground. Handley AJA (with whom McColl JA agreed) stated:

The last ground of appeal alleged that the Tribunal should have published its findings and given the parties an opportunity to adduce evidence and make submissions on the appropriate orders consequential on those findings. In ordering de-registration without giving the appellant this opportunity the Tribunal acted in breach of its duty of procedural fairness.[97]

161 Handley AJA then proceeded to make the observations, concerning the need for a second sentencing stage,[98] that are set out by Cavanough AJA in his dissenting judgment. Read in context, those passages, in the judgment of Handley AJA, do not specify, as a mandatory requirement of procedural fairness, that there be two separate sequential stages in the sentencing process. Rather in each case the critical question is whether the person who was the subject of the disciplinary process has been afforded the opportunity to adduce evidence and make submissions on the issue of penalty. In the case of King, such an opportunity would only have had realistic content if it had been provided after the Tribunal had delivered its decision on the issue of whether or not the appellant had been found guilty of professional misconduct. The allegations in that case by each of the three complainants were variegated, and each related to a number of different medical appointments by those complainants with the practitioner.

162 A proper analysis of the decision of Sackar J in Bryant v Hawkesbury Radio Corporation Co-operative Society Ltd[99] demonstrates that that case does not support the proposition contended for by the applicant, namely, that there must be a mandatory two stage process, in which the parties address the question of penalty only after the Tribunal has decided the question of 'guilt'.

163 In Bryant, the plaintiff claimed relief in respect of a resolution of the defendant Co-operative expelling him as a member of the Co-operative. In June 2013, the defendant had forwarded correspondence to the plaintiff advising of a special general meeting to be convened in July, to consider a resolution that he be expelled as a member of the Co-operative. The notice contained no particulars, or information, as to the basis upon which he was to be expelled. The defendant's solicitors wrote a letter to the defendant seeking those particulars. In response, the defendant forwarded a letter that purported to provide 'particulars', but which was expressed in general and uninformative form. At the special general meeting, the resolution against the plaintiff was put and carried by the requisite majority.

164 The plaintiff sought relief in the Equity Division of the Supreme Court of New South Wales on three bases, namely: first that the form of the resolution did not sufficiently articulate the basis of the grounds for expulsion; second that before considering the question of expulsion, the Co-operative was first required to determine whether he was guilty of conduct detrimental to the defendant; and third that the plaintiff was not given a reasonable opportunity to be heard.[100] Sackar J expressly held that it was not necessary for him to decide the first two points raised by the plaintiff, because in the circumstances the plaintiff had not been given a reasonable opportunity to be heard, as the purported particulars provided to him were wholly inadequate.[101] In particular the judge considered that in the absence of appropriate particulars the plaintiff was left 'guessing', and that was clearly not in accordance with the principles of procedural fairness.[102]

165 In view of that conclusion, Sackar J expressly refrained from stating a conclusion as to whether it was necessary that there be a 'two stage process' as contended by the plaintiff. It is necessary to set out that section of his Honour's judgment in full as follows:

On the second point, on the facts of this case it is really not possible in my view to come to a decided view as to whether a one or two stage process would be necessary in accordance with Battle. This is because the particulars are so inadequate that it is impossible to come to any conclusion, as Hodgson JA put it, as to whether Mr Bryant could be said to be guilty or not.

Until it is clear what the precise allegations are, I do not think a Court is able to come to a view as to the appropriate process that should be followed.

In cases like Hall and Forge v ASIC [2004] NSWCA 448; (2004) 52 ACSR 1, where different results on penalty might flow from which particular charges are made out, it may well be that a two stage process is mandatory. If there is a range of allegations (some of which may involve say dishonesty, others raising no higher than reckless behaviour), it is obvious that very different penalties may flow.

Here, with proper particulars, authorship for example was not going to be in issue on many if not all of the communications that might be used to support a charge that Mr Bryant had acted to the detriment of the co-operative. The only substantive issue would arguably be their characterisation as such. Properly particularised, it is not inconceivable that a one stage approach may have been appropriate.

The underlying assumption, it seems to me, in the debate over whether a one stage or two stage approach is appropriate, proceeds on the basis that one has been clearly informed of the charges so as to be able to predict substantively different penalties depending upon the findings of guilt. That quite simply had not happened by the date of the meeting.

I would therefore refrain from coming to a decided view in this case, in the absence of Mr Bryant being given proper particulars, as to whether an antecedent resolution on guilt would have been necessary before any finding on penalty.[103]

166 The foregoing review of the additional authorities including those referred to by Cavanough AJA does not, in our view, affect the proposition established by the authorities to which we have referred, namely, that there is no universal rule that the principles of procedural fairness require, in each case, that a 'two stage process' be adopted, whereby the issue of the guilt must be determined before submissions are made in relation to the question of penalty or disposition. Rather, as our discussion of the cases demonstrates, the question is whether in a particular case the person, who has been the subject of disciplinary proceedings, has been afforded a reasonable and fair opportunity to address the issue of penalty or disposition. As we have noted, in a number of cases, particularly where the allegations against the person are numerous or complex or where there may be multiple bases for finding guilt, that requirement may only be satisfied where a two stage procedure is adopted. This was not such a case. Contrary to the submissions made by the applicant in this case, there is no established principle of law requiring that, in each case, such a procedure must be adopted.

167 We should however reiterate our reservations, which are to the same effect as those expressed by Spender J in Barnes, and by the Court of Appeal of Queensland in Puryer, as to the process of requiring a defendant in such proceedings to combine a submission as to liability and penalty. In our view, such a combined procedure is generally undesirable. It compels a party to advance arguments upon the assumption that facts that are in dispute have been found against them and thus makes it difficult for the party to advance all that can be said in mitigation. It may, in certain circumstances, such as those set out in the preceding paragraph, work a real injustice if it is difficult to anticipate the basis upon which adverse findings are likely to be made. We note in this regard that when the Court made observations to this effect in the course of oral submissions, counsel for the Commissioner informed the Court that the Commissioner accepted those views.

168 We now, therefore, turn to the various points made by the applicant in his written submissions in support of ground 2.

169 The first finding, sought to be impugned by the applicant, is the judge's conclusion that the Tribunal was correct in determining that it had jurisdiction to conduct the proceeding before it, notwithstanding that the charges against the applicant alleged an offence that was capable of being a criminal offence, namely perjury, under s 314 of the Crimes Act 1958.

170 In support of that proposition, the applicant contended that the judge erred by not properly applying the principles stated by the Full Court of South Australia in Legal Practitioners Conduct Board v Ardalich.[104] The applicant submitted that that decision is authority for the proposition that, in order that the respondent bring charges alleging professional misconduct arising from circumstances that constituted the commission of a criminal offence, the respondent must produce a certificate of conviction against the applicant, or adduce evidence of an admission by the applicant of having committed that offence. The applicant submitted that that proposition was also supported by the decision of the Full Court of the Federal Court in Today,[105] to which we have referred, and the decision of the Tribunal in Piva.[106]

171 The applicant submitted that since the alleged misconduct was committed in his private capacity, and not connected with legal practice, the only provision in the Legal Profession Act 2004 that was relevant was s 4.4.4(c) of that Act, which required a finding of guilt, against the accused, or at least an admission of guilt by the accused. The applicant submitted that if the legislature had intended that professional misconduct encompass the commission by a practitioner of a criminal offence of the kind alleged against the applicant, it would have made express provision to that effect in the Act. Accordingly, as the applicant had not been the subject of a conviction on a charge of perjury, nor had he made any admission to the effect, the judge should have held that the Tribunal did not have jurisdiction to hear the charges against him.

172 In response, counsel for the respondent submitted that the charge that was before the Tribunal was one of professional misconduct. That conduct was the making of a false statement. The fact that such conduct might also constitute the basis of a criminal charge did not affect the validity of the charge. The charge itself did not, in terms, allege the commission by the applicant of a criminal offence, because the relevant issue was whether the applicant was guilty of professional misconduct. In that respect, it was submitted that the decision of the Full Court in Ardalich may be distinguished.

173 The submissions, made by the applicant in this respect, misconceive the effect of the decisions in Ardalich and Today FM. We have already, earlier, dealt with the submissions made by the applicant in relation to the decision of the Full Court of the Federal Court in Today FM. In Ardalich, the Legal Practitioners Conduct Board ('the Board') sought an order from the Full Court of South Australia that the respondent practitioner's name be struck off the roll of legal practitioners. That application was based on reports by the Legal Practitioners Disciplinary Tribunal ('the Tribunal') following an inquiry by that Tribunal, in which the Tribunal had found the practitioner to have been guilty of unprofessional conduct. The Board had laid a number of charges against the practitioner, including charges which expressly alleged that the practitioner had committed criminal offences in breach of the Criminal Law Consolidation Act 1935 (Cth). The Full Court's judgment set out, by way of example, one charge which alleged that the practitioner had fraudulently converted monies to his own use in breach of s 184 of that Act, and a second charge that alleged that the practitioner had withdrawn trust money without his client's authorisation in breach of s 31(1) of that Act. There was no dispute as to the actions alleged to have been carried out by the practitioner. However, an issue arose as to his mental capacity to commit the offences alleged in the charges. As a result, the Tribunal embarked on a detailed inquiry as to that aspect of the case, which involved the views of some six psychiatrists as relating to the effects of the practitioner's bipolar effective disorder.

174 The Full Court, in its judgment, was critical of the formulation of the charges that specifically alleged the commission of a criminal offence by the practitioner. The Court stated that the fact that the statutory definition of 'unprofessional conduct' referred to a criminal offence did not mean that it was appropriate for the Tribunal to embark on an inquiry directed to the determination of whether a criminal offence had been committed. Perry ACJ (who delivered the judgment of the court) stated:

In my view, it was not appropriate for the Tribunal to embark upon some sort of quasi criminal trial, but adopting a lower standard of proof, and then to express conclusions as to mental competence which would be appropriate when, in the course of a trial being dealt with in a criminal court, a question of mental impairment falls to be dealt with under Part 8A of the Criminal Law Consolidation Act.

If the Board charges the practitioner with unprofessional conduct constituted by the commission of a criminal offence, short of an admission by the practitioner, it is incumbent upon the Board to produce evidence of the conviction of the practitioner of the offence recorded in a court exercising criminal jurisdiction.[107]

175 Notwithstanding those remarks, the Full Court nevertheless took into account the terms of the reports provided by the Tribunal, and noted that the misconduct, alleged against the practitioner, included a number of separate acts of fraudulent conversion of monies held in the practitioner's trust account.[108] The court held that that conduct was capable of amounting to unprofessional conduct.[109]

176 Two points clearly emerge from the above analysis of the decision of the Full Court in Ardalich. First, and importantly, the charges brought by the Board against the practitioner in that case specifically alleged the commission of a criminal offence by the practitioner. Thus, in order that the practitioner be found guilty of the disciplinary offence alleged against him, it was necessary that the Tribunal find him guilty of that criminal offence. That position became more complex, because, as the Full Court noted, whereas under the criminal law the court is concerned with the mental competence of an accused person who commits a crime, on the other hand the disciplinary provisions of the Legal Practitioners Act 1981 (SA) were concerned with protecting the interests of the public by ensuring that legal practitioners comply with high standards of probity and competence.[110] In that respect, the charges brought against the practitioner in Ardalich were clearly different, and distinguishable from, the charges brought against the applicant in this case. Secondly, it is noteworthy that, in any event, the Full Court took into account the matters alleged against the practitioner in Ardalich, notwithstanding that the charges did allege, expressly, the commission by him of a criminal offence.

177 As we stated, in the present case, the charges specifically alleged that the applicant was guilty of professional misconduct. It was, as we have already said, within the jurisdiction of the Tribunal to hear those charges. The fact that the proof of those charges might involve, and include, the proof that the applicant had committed a criminal offence, such as perjury, did not affect the jurisdiction of the Tribunal to hear the charges. In essence, the relevant inquiry before the Tribunal was whether the applicant had committed the conduct alleged against him, and, if so, whether that conduct constituted professional misconduct. That inquiry did not require the Tribunal to determine whether the applicant's conduct constituted the commission by him of the criminal offence of perjury, or any other criminal offence.

178 For those reasons, the first point relied on by the applicant in support of Ground 2 must fail.

179 The second point, relied on by the applicant under Ground 2, is that it was not open to the judge to find that the Tribunal was correct in determining that the conduct alleged against the applicant which was (according to the applicant) private or personal misconduct, amounted to professional misconduct. In support of that proposition, the applicant relied on the decision of the Tribunal in Piva.[111]

180 In that case, the practitioner faced three charges of misconduct. The first two related to conduct by the applicant in legal proceedings in which he was both the party and the solicitor on record. The third charge alleged that the applicant had deliberately misled a person with whom he had entered into a commercial transaction. The Tribunal considered at some length the scope of the concept of professional misconduct where the conduct alleged occurred outside the course of the practitioner's practice. The Tribunal considered that the decided cases, involving professional misconduct in such circumstances, comprised three categories, namely, criminal convictions, misconduct in connection with litigation, and 'other misconduct'.[112] The Tribunal identified two factors that formed the basis of the disciplinary misconduct in those cases, namely, first, that the fact of conviction would damage the reputation and standing of the profession in the eyes of the public, and, secondly, that the conduct in question manifested the presence, or absence, of qualities which are incompatible with, or essential for, the legal practice.[113] It was submitted in this case that the offending alleged against the applicant did not fall into either of any of the three categories identified by the Tribunal, nor did it involve either of the two factors which reside in those three categories.

181 We have earlier examined the authorities that are relevant to the question of whether conduct by a practitioner, not directly connected with the practice of law, nevertheless may constitute professional misconduct. As we noted, the decision of the New South Wales Court of Appeal in Cummins,[114] and the decision of the High Court in A Solicitor v Council of the Law Society of New South Wales,[115] are authorities for the proposition that, in order that conduct of a practitioner, constitute 'professional misconduct', that conduct must be sufficiently closely connected with legal practice by the applicant, such that it can be properly described as professional misconduct.

182 As we have already stated, in our view, the judge was correct in concluding that the conduct of the applicant, alleged in the charges, was sufficiently connected with legal practice so as to constitute professional misconduct by him. At the risk of repetition, the plain facts are that the applicant made the statutory declaration in his capacity as a legal practitioner in support of his application to remove a condition in his practising certificate that entitled him to practise as a solicitor in the State of Victoria. In that way, the conduct alleged against the applicant was necessarily, and closely, connected with the practise by him of law in this State as to constitute professional misconduct. For those reasons, there is no substance in the submissions made by the applicant in this respect.

183 The third point, relied on by the applicant under Ground 2, is that although the charges against him did not allege that he had acted dishonestly, nevertheless the Tribunal found that he had breached his duty of honesty and candour. The applicant submitted that the primary judge erred in determining that the Tribunal did not make any findings of dishonesty against him. The applicant submitted that the judge ought to have concluded that the Tribunal did make such a finding, notwithstanding that no allegation of dishonesty had been made against him. Thus, he submitted, the judge ought to have concluded that the Tribunal found against the applicant on the basis which was not alleged in the charges. In support of that submission, the applicant referred to Kyle v Legal Practitioners' Complaints Committee,[116] Legal Services Commissioner v Madden [No 2][117] and Simon v Legal Services Commissioner.[118]

184 In response, the respondent submitted that the charges before the Tribunal did not use the word 'dishonesty', nor did they allege dishonesty against the applicant. Counsel submitted that, notwithstanding that the Tribunal found that the applicant had breached his duty of 'honesty and candour', the Tribunal, in determining the penalty to be imposed on the applicant, was providing a general description of the scope of the applicant's duty, rather than finding that part of the duty that had been breached. Counsel submitted that the authorities relied on by the applicant could each be distinguished in the present case.

185 The applicant would establish a relevant error of law if, in fact, the Tribunal did find the charges proven against him on a basis which had not been alleged in the charges themselves or if that had not been the way in which the Commissioner presented his case.[119]

186 As we have already shown, from the initiation of proceedings and throughout, it was always the Commissioner's case that the applicant knew that the facts were false and that he was dishonest in stating those facts to be true in his declaration. The Commissioner's application for Orders and his opening and closing submissions made clear, that the Commissioner's case was that the applicant had been dishonest as he knew the impugned facts to be false. Further, and contrary to the Commissioner's submission and the view of the primary judge, in our opinion the Tribunal did make a finding which amounted to a finding of dishonesty against the applicant in determining that the first charge was sustained. However, we reject the applicant's submission that the charge did not contain an allegation of dishonesty. On the contrary, it was axiomatic that that allegation inhered in that part of the charge which the Tribunal was satisfied had been proved, namely, that the applicant knew the statements to be false. Proof of that fact necessarily established a dishonest state of mind, notwithstanding that the term was not itself specifically employed in the charge.

187 Each charge alleged that the applicant was guilty of professional misconduct, because he had submitted a statutory declaration to the Board in circumstances in which he knew, or ought to have known, that the contents of the statutory declaration were false. The charges did not simply allege that the applicant was guilty of misconduct on the basis that he had executed and submitted a false declaration. In the case of each charge, the case advanced by the Commissioner was that the facts were false and that the applicant knew that to be so at the time at which he executed the statutory declaration and submitted it to the Board. Counsel for the Commissioner opened and closed the case to the Tribunal consistently with the formulation of the charges in that way. The professional misconduct, alleged in the charge, which the Tribunal found proved, was the fact that he knew that the contents of the statutory declaration, submitted by him to the Board, were false. Clearly, and as a matter of inexorable logic, an allegation that a person has made a statutory declaration, in circumstances in which that person knew, that the contents of it were false, imports an allegation of dishonesty. Further, as we have already aid, the matters, which were alleged to be false in the two statutory declarations, were matters about which the applicant had direct and personal knowledge. A false statement by the applicant relating to those matters, particularly involving falsity of the magnitude alleged against him before the Tribunal, necessarily meant that the allegations before the Tribunal involved the proposition that the applicant had deliberately and intentionally made a false declaration as to those two matters.

188 Thus, while the two charges did not, in express terms, employ the word 'dishonestly', nevertheless it was necessarily implicit in the charges, and in the manner in which they were presented to the Tribunal, that the applicant was the subject of allegations of dishonesty, in the manner which we have just described. Accordingly, the description by the Tribunal, of the applicant's wrongdoing as a breach of his duty of honesty and candour, was entirely apt, and was consistent with the substance of the allegations made against the applicant in the charges and in the case before the Tribunal.

189 The two authorities relied on by the applicant, in support of this aspect of the second ground, are clearly distinguishable.

190 In Kyle,[120] the practitioner was found guilty of unprofessional conduct in that he had attempted to mislead a judge of the court when acting for a husband and wife as defendants in an action in the Supreme Court of Western Australia. The practitioner, in those proceedings, had opened the case to the judge on the basis that both of his clients had executed a particular deed that was material in the action, when he knew that the wife had not executed the deed, but that the signature appearing in her name on the document was in fact a forgery by her husband. In opening the case before the Legal Practitioners Disciplinary Tribunal, counsel for the Complaints Committee had disavowed any allegation of dishonesty against the practitioner. The Tribunal upheld the charge against the practitioner. On appeal, the practitioner submitted that the charges against him could not be sustained, because an attempt to mislead a court must involve, as an indispensable ingredient, an intent to deceive, whereas counsel for the committee had disavowed that allegation against the practitioner.

191 The Court of Appeal of Western Australia rejected that proposition. An analysis of the transcript before the Tribunal revealed that counsel for the Complaints Committee had disavowed making an allegation of dishonesty, in a more narrow sense. In particular, the allegation was that the practitioner only intended to mislead the court temporarily, expecting that the true position would be revealed to the court before the completion of the hearing. The Court of Appeal held that it was plain, from the formulation of the charge, and from the opening by counsel for the Complaints Committee before the Tribunal, that the committee was alleging, in its charge against that practitioner, an intent by the practitioner to deceive the court. Thus, Ipp J stated:

... In other words, it was at all relevant times quite obvious, from the way in which the disciplinary proceedings were conducted, that the appellant knew that the complaint against him, in essence, was that he deliberately caused the court to believe that Mrs Beyer had signed the deed when he knew that she had not.

In my opinion, it was necessarily implicit in such a complaint that an element of intention to deceive or dishonesty was involved. This implication necessarily flowed from the allegation of deliberate conduct coupled with knowledge, and must have been obvious to the appellant and his legal representatives. ...[121]

192 Parker J, in his separate judgment, expressed similar reasons.[122] His Honour concluded:

... The only case which the appellant was called on to answer was that he attempted to mislead the court. A person may in fact be misled by another, intentionally or accidentally ... Any such unwitting misleading could not support the allegation in this case because an attempt to mislead was alleged. The allegation of an attempt necessarily imports a mental element, intentional conduct.[123]

193 In Madden,[124] the applicant was charged on six counts, none of which alleged dishonesty. The Tribunal, nevertheless, found that the applicant had engaged in dishonest conduct in relation to the second charge, and that that conduct had pervaded or explained the applicant's subsequent conduct. On appeal, the Queensland Court of Appeal held that the Tribunal did not have power to embark on a hearing to determine whether the appellant had acted dishonestly, when no such allegation was made in the charges against him. Accordingly, the Court directed that the findings of dishonesty against the appellant be set aside. The Court noted that although it was not necessary that the word 'dishonesty' be expressly stated in the charge, nevertheless it was necessary that a charge of dishonesty be made in clear terms. The court held that none of the charges before the Tribunal necessarily imported the concept of dishonesty.[125] Accordingly, the Court held that it was not within the jurisdiction of the Tribunal to embark on an inquiry as to whether the appellant had acted dishonestly, and to make a finding against him in that respect.[126]

194 Clearly, Madden's case is distinguishable from the present case where, for the reasons we have already given, the charges against the applicant included an allegation which, if found proved, necessarily involved a dishonest state of mind.

195 For those reasons, the point raised by the applicant must fail. As we stated, we consider the applicant is correct that in contending that, contrary to the conclusion of the judge, the Tribunal did make a finding of dishonesty against the applicant. However, such a finding was entirely consistent with the allegation against the applicant contained in the charge, opened by counsel for the Commissioner to the Tribunal and found proved by the Tribunal.

196 The applicant then proceeded to make a number of miscellaneous points which, he submitted, each demonstrated error by the judge.

197 The applicant contended that the judge erred by determining that the Tribunal had provided adequate reasons despite (according to the applicant) the Tribunal '... not even meeting basic principles of reasoning'.

198 There is no substance to this complaint. The Tribunal's reasons were concise, but they did deal adequately with the relevant issues. In particular, the Tribunal specified the four factual issues that were central to the charges against the applicant. He gave sufficient reasons for the two principal conclusions formed by him, namely, that the applicant did not engage in legal practice for the period 24 November 2011 to 27 February 2012, and that the applicant did not work the hours claimed by him in the statutory declaration for the whole of the period 24 November 2011 to 10 July 2012. The Tribunal further gave adequate reasons for concluding that the conduct of the applicant, in knowingly making false statements in the statutory declaration, constituted professional misconduct. Likewise, the Tribunal gave sufficient reasons for his conclusion as to the penalty that was to be imposed on the applicant.

199 The next miscellaneous point raised by the applicant is that the judge erred in determining that the Tribunal was not in error in finding that the alleged offence was made out (that is, that the applicant falsely asserted he completed two years' worth of supervised legal practice), despite (according to the applicant), the respondent conceding that he was not charged with that offence. That submission is misconceived for the reasons already stated.

200 The third miscellaneous point made by the applicant is that the judge erred in determining that the Tribunal was correct in finding that the applicant knowingly committed the alleged offence, despite (according to the applicant) the respondent producing no evidence supporting that conclusion as to his intention. We have already dealt with this issue. The facts, stated by the applicant, in his statutory declaration, were quintessentially within his own knowledge and the inference was a prominent one arising from the significant misstatements by the applicant as to those facts in the statutory declaration that he knew those facts to be false.

201 The fourth miscellaneous point relied on by the applicant is that the judge erred in concluding that the Tribunal was correct in finding that the alleged charge could be made out, despite (according to the applicant) both the respondent's witnesses conceding nearly every aspect of what was put to them in cross-examination, and despite the applicant's evidence being unchallenged by the respondent.

202 The two premises, on which that argument was based, are unsound. As we have already stated, Mr Kabo and Ms Hoang did not concede the gravamen of the applicant's evidence. Rather, their evidence remained in conflict, in material respects, with the testimony given by the applicant. Further, there is no evidence that the applicant's evidence was not challenged in cross-examination. On the contrary, the materials before the Court indicate that the applicant was cross-examined, which is hardly surprising, in light of the significant conflict between the contents of his witness statement with the evidence of Mr Kabo and Ms Hoang.

203 In that respect, in paragraph 10 of the Commissioner's written submissions to the Tribunal dated 4 August 2014, it was stated that the applicant's witness statement was taken as his evidence in chief '... and he was also cross-examined'. In paragraph 91 of those submissions, it was noted that the applicant was cross-examined about his failure to mention his precedent work during the Commissioner's investigation of his conduct. The applicant filed submissions in response, which did not take issue with, or seek to contradict, those statements. Further, in his reasons, the Tribunal observed that, 'in his own evidence', the applicant had admitted that he did not go to any clients' homes, that he did not appear in, or go to, court, and that he did not draw any briefs, that he only 'looked over' some statements of adjustments and assisted with one contract of sale, and that he had only one inquiry about a criminal matter that did not come to fruition.[127] None of those matters were mentioned in the applicant's witness statement, that served as his evidence in chief in the proceedings before the Tribunal. The reference by the Tribunal to that evidence by the applicant, suggests that it was elicited in cross-examination. Each of those matters put in issue the basic proposition advanced by the applicant, as to the period during which he worked as a lawyer, and as to the hours that he had spent performing that work. For those reasons, the point now sought to be made by the applicant is without substance.

204 The fifth miscellaneous point, raised by the applicant, is that the judge erred in not finding that the Tribunal breached procedural fairness in not providing him with an opportunity to address the Tribunal relating to penalty and in relation to dishonesty. This point is without substance.

205 For the reasons set out in paragraphs 110 to 119 above, the Tribunal did not deny the applicant procedural fairness by failing to give him the opportunity to make submissions about penalty. Further, as we have already demonstrated, the charge proved necessarily involved an allegation of dishonesty against the applicant. In his written submissions the applicant specifically addressed the issue of dishonesty, by contending that if there was any misstatement in his statutory declaration, it was a result of an honest and reasonable belief by him as to the relevant facts.

206 The next point is that the judge erred by determining that the Tribunal did not breach procedural fairness, where (according to the applicant) the transcript demonstrated that the Tribunal had refused to allow the applicant to make additional submissions, and because it had interrupted his oral submissions. A plain reading of the transcript of the hearing before the Tribunal does not bear out the complaint made by the applicant. On the contrary, the applicant was given sufficient opportunity to present his case, which he did.

207 The next point made by the applicant is that the judge erred by failing to apply the decision of this Court in Stirling v Legal Services Commissioner[128] by not taking into account mitigating factors and not being consistent with other cases.

208 In fact the judge, and the Tribunal, each referred to the mitigating factors relied on by the applicant. In particular, the Tribunal gave weight to the applicant's inexperience, in determining the length of suspension which, the Tribunal considered, would not be excessive to the point of being punitive. The Tribunal also gave weight to the fact that the applicant was at an early stage of his legal career, and for those reasons the Tribunal tailored the conditions, attached to the orders made by him, with a view to providing the applicant with sufficient supervision and training to enable him to re-commence his career at the end of the period of suspension.

209 The judge noted those matters in his reasons.[129] His Honour also referred to the principle stated in Stirling, and the principle of parity.[130] The judge (correctly) noted that the cases relied on by the applicant, in relation to the principle of parity, turned on their own facts and were distinguishable.[131] Accordingly, there is no substance to this point.

210 The next point made by the applicant is that the judge erred in determining that the conditions, imposed on the applicant's practising certificate, were relevant to his alleged offending.[132] He submitted that there was no link between the offending, found by the Tribunal, and the conditions. We disagree. The applicant was young and inexperienced at the time of the offending. Those facts were considered by the Tribunal to have contributed to the offending. The fact that some time had elapsed since the alleged offending, did not diminish, or negate, the importance that he undergo further training, and be supervised, at the early stage of his career. The conditions were properly tailored, not only to protect the community, but also for the benefit of the applicant. The training, ordered by the Tribunal, was to address the apparent lack of appreciation by the applicant of his ethical duties. The condition as to supervision was entirely appropriate, given the circumstances of the case. The applicant had made a false statement claiming that he had received the requisite supervision, which was not the case. The evidence as to the circumstances in which he was employed by Kabo Lawyers, together with the commission by him of the offence found by the Tribunal, clearly indicated that it was important that, after the period of suspension, he engage in legal practice only as an employee for a period of 24 months in circumstances in which he was directly supervised.

211 The penultimate point made by the applicant is that the judge erred by applying two previous decisions of the Tribunal (Law Institute of Victoria v Frugtniet[133] and Legal Services Commissioner v Adamakis[134]). It was submitted that both of those cases are irrelevant.

212 The judge cited the decision of the Tribunal in Frugtniet in support of the proposition that the Commissioner does not have to see to the exhaustion of any criminal processes in the courts before bringing disciplinary charges, where the misconduct that is charged could also constitute a criminal offence.[135] The decision in Frugtniet is consistent with that proposition. In any event, the proposition is correct as a matter of law. The judge did not rely on the decision of the Tribunal in Adamakis. Rather, he noted the reference to it by counsel for the respondent in her submissions to the Tribunal.

213 The final point made by the applicant is that the judge erred in stating that the Board rejected the applicant's application for an abridgment of time, and referred the matter to the Commissioner.[136] The applicant contends that it was the Law Institute of Victoria that assessed his application and then referred the matter to the Commissioner. The point is without substance. The applicant submitted the statutory declaration to the Board, and the Law Institute of Victoria considered the application as the Board's delegate. In any event, the point is not pertinent to the conclusions of the Tribunal, or of the judge.

214 For the foregoing reasons, none of the matters relied on by the applicant establish any arguable relevant error of law by the judge. Ground 2 is without substance and must be rejected.

215 In support of Ground 3, the applicant has contended that the judge made clear errors, and thus his conclusions are unreasonable and no reasonable person could have arrived at them. We have already rejected each of the claimed errors relied on by the applicant. It follows that Ground 3 must also fail.

216 For the reasons set out above, we do not consider that any of the grounds, relied on in the application for leave to appeal, have a real prospect of success.[137] Accordingly we would refuse the applicant leave to appeal on any of those grounds.

217 The background to this matter is described in the joint reasons of Redlich and Kaye JJA.

218 I would grant the application for leave to appeal, order that the appeal be heard instanter and allowed, set aside the decision made by the Tribunal and remit the matter for further hearing and determination according to law.

219 Broadly speaking, I would do so on two bases. They correspond with two of the points that were advanced by the applicant in his written case.

220 First, I accept the applicant's contention that the Tribunal's decision involved implicit findings that he acted dishonestly in making two of the statements contained in his statutory declaration;[138] and I also accept his contention that, because of the particular manner in which the charges against him were expressed and presented by the Legal Services Commissioner, those findings were beyond the power of the Tribunal, or alternatively the making of them involved a denial of procedural fairness to the applicant. The Tribunal's decision of 22 December 2014, involving as it did those findings of dishonesty, cannot be permitted to stand in view of the way in which the case was presented by the Commissioner before the Tribunal, and in view of a series of submissions later made by the Commissioner (to which I will

come). However, in my view, none of this would disentitle the Commissioner from pleading and presenting the case against the applicant differently at a rehearing or fresh hearing, including, if the Commissioner were so advised, by squarely making an allegation or allegations of dishonesty.

221 Secondly, I accept the applicant's contention that the Tribunal's omission to conduct a two-stage hearing, that is to say, its omission to make a decision on liability first and then to conduct a hearing on penalty, involved a denial of procedural fairness to the applicant.

222 In my view, it is important to have regard to the statutory scheme under which the applicant was investigated, charged and found guilty, and to the central role of the Legal Services Commissioner in that scheme. At the time, the applicable statute was the Legal Profession Act 2004 ('the Act'). Although the Act was repealed as from 1 July 2015 by s 157 of the Legal Profession Uniform Law Application Act 2014, it continues to govern the present matter by virtue of transitional provisions.[139]

223 The purpose of the Act is stated in s 1.1.1. So far as presently relevant, that section provides:

Purpose

The purpose of this Act is -

(a) to improve the regulation of the legal profession, principally by -

(i) implementing national model provisions for the regulation of the profession; and

(ii) establishing new bodies responsible for regulating the profession;

(b) to facilitate the regulation of legal practice on a national basis across State and Territory borders; ...

It will be noted that s 1.1.1 refers to national model provisions and to facilitating the regulation of legal practice on a national basis. Consistently with this, the provisions of the Act relating to complaints and discipline bear a considerable resemblance to the corresponding provisions of the Legal Profession Act 1987 (NSW) (as amended) which fell for consideration by the High Court in 1999 in Walsh v Law Society of New South Wales.[140] The relevant legislative history is referred to in the subsequent judgment of this Court in B (A Solicitor) v Victorian Lawyers RPA Ltd[141] and in that of the Court of Appeal of Queensland in Legal Services Commissioner v Madden.[142] In Walsh, the plurality (McHugh, Kirby and Callinan JJ) said:[143]

[60] ...[T]he scheme of the Part of the Act in which s 171M appears (Pt 10), dealing with complaints and discipline, introduces significant changes in the law governing the investigation of such complaints against legal practitioners and the conduct of disciplinary proceedings arising out of the investigation of such complaints. The general objects of Pt 10 include to redress 'consumer complaints of users of legal services' and to ensure compliance by individual legal practitioners with the necessary standards of 'honesty, competence and diligence'. As part of the statutory scheme, a differentiation is introduced between 'professional misconduct' and 'unsatisfactory professional conduct'. Clearly, this distinction was designed to meet dissatisfaction with the response of those charged with deciding the complaints of users of legal services and the suggestion that they sometimes tended to neglect conduct falling short of proper standards of competence and diligence. A special statutory officer, the Legal Services Commissioner (the Commissioner), was created by the amending Act which introduced the new scheme. The Commissioner has a wide range of functions including the receipt of complaints about professional misconduct or unsatisfactory professional conduct of legal practitioners. The Commissioner is empowered to monitor investigations by the relevant Council (in this case the Law Society Council) into a complaint. He or she is empowered to give directions and to arrange for a complaint to be independently investigated in certain circumstances. He or she is afforded large statutory powers in doing so. The Act also establishes the Tribunal which is empowered to conduct hearings with respect to a complaint against a legal practitioner brought before it.

[61] In this scheme of discipline, a number of protections are included for the legal practitioner brought before the Tribunal. Proceedings may only be instituted 'with respect to a complaint' by 'an information laid by the appropriate Council or the Commissioner' in accordance with Pt 10 of the Act. The function of the Tribunal is confined to that of conducting a hearing 'into each allegation particularised in the information'. The Tribunal has certain powers of amendment to vary the information laid against the legal practitioner, for example, to permit the inclusion of additional allegations where that is justified. For the purpose of a hearing into a question of professional misconduct, the Tribunal 'is to observe the rules of law governing the admission of evidence'. In other hearings, the Tribunal is not so bound but may inform itself of any matter in such manner as it thinks fit.

[62] Given the scheme of the legislation, and the introduction of new statutory bodies for the task of discipline of members of the legal profession formerly conducted by professional bodies and by the Supreme Court, the requirements of particularity contained in the Act (and the safeguards thereby introduced for the practitioner concerned) would not be narrowly construed.

[63] The function of the Tribunal, after having completed a hearing 'relating to a complaint against a legal practitioner', is to determine whether it is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct. Only if it is so satisfied may it make any of the orders specified in the Act, including an order for the removal of the name of the legal practitioner from the roll and an order that the legal practitioner pay a fine. The scheme of specificity continues into the provision for an appeal against the order of the Tribunal. By s 171F it is provided (and we add emphasis to the words):

'(1) Any party to a hearing conducted by the Tribunal may appeal to the Supreme Court against the Tribunal's determination of a complaint.'

It is only an appeal against such determinations which the Supreme Court, by the Act, is empowered to hear and determine.

[64] A question arises as to whether the preservation of the inherent jurisdiction of the Supreme Court in s 171M of the Act, previously noted, empowers that Court, in an appeal from the Tribunal heard by the Court of Appeal, to go beyond the 'determination of a complaint' which is otherwise expressed to ground the Supreme Court's jurisdiction. In favour of that view might be the specification that the appeal lies to the Supreme Court whose inherent jurisdiction is preserved and whose ancient functions include the maintenance of standards and enforcement of discipline in relation to legal practitioners whom such courts admit to legal practice. But, by the scheme of the Act, it is clear that this is not what the legislation provides. The provision preserving the inherent power or jurisdiction of a Supreme Court appears in Div 10 (Miscellaneous) of Pt 10 of the Act. In the context, the section's purpose is to permit the Supreme Court to deal directly with cases other than appeals (provided for in Div 8 of Pt 10) where it is appropriate or necessary to invoke the inherent power and jurisdiction of the Court.

[65] An instance which springs to mind in which the inherent power might be invoked is the case of a legal practitioner who is convicted of a relevant criminal offence warranting immediate removal of his or her name from the roll. In New South Wales, proceedings of that kind are commonly brought by the Prothonotary of the Supreme Court. They are ordinarily uncontested. But for appeals from the Tribunal, invoking the jurisdiction of the Supreme Court as provided by s 171F, the measure of particularity which runs through Div 8 applies. Neither the jurisdiction of the Tribunal nor the power and jurisdiction of the Supreme Court are at large, as formerly the latter were under the common law and within the inherent jurisdiction of the Supreme Court untouched by legislation.

[66] The provisions of the Act must be complied with. The focus of its attention is the 'complaint against a legal practitioner' expressed in the 'information laid by the appropriate Council or the Commissioner' in accordance with the Act. That complaint, and the information containing it, may be varied and amended. Notwithstanding dismissal of the complaints contained in one information it remains open to the relevant Council or the Commissioner to bring later complaints. But the function of the Tribunal is to determine the complaint. And the function of the Supreme Court, in this aspect of its power and jurisdiction is, and is only, to hear and determine the appeal 'against the Tribunal's determination of a complaint'. To the extent that the Tribunal proceeded beyond that function or the Supreme Court on appeal did likewise, they would be exceeding the jurisdiction conferred by the Act.

[67] This conclusion reinforces our view about the error in the approach of the Court of Appeal. Instead of addressing its attention to determining the appeal and cross-appeal against the Tribunal's determination of the several complaints about Mr Walsh, it addressed itself to what was described as the 'ultimate question' of Mr Walsh's good fame and character and his suggested unfitness to remain on the roll of legal practitioners. In this, it consciously went outside the 'complaints as formulated and particularised'. In doing so, it strayed beyond its power and jurisdiction. By reason of the preservation of the inherent jurisdiction of the Supreme Court, it may have been open to the Law Society or the Prothonotary in this case to invoke the Supreme Court's inherent jurisdiction and to seek immediate relief in relation to Mr Walsh within that jurisdiction. We leave aside questions of procedural fairness and other objections that might be raised if such an exceptional course had been taken. But if it were, different procedures would have been followed and a different hearing would have ensued. That course was not taken. Instead, the ordinary course, envisaged by Div 8 of Pt 10 of the Act, was followed. In going outside the scheme of the Act and proceeding to ignore the 'complaints as formulated and particularised', the Court of Appeal erred. It was an error substantially disadvantageous to Mr Walsh. He is entitled to complain about it and, on this ground too, to succeed on his objection to the course which the appeal took.

224 With one insignificant exception, everything stated in paragraph 60 of Walsh is equally true of the corresponding scheme that was in place under the Legal Profession Act 2004 during the relevant period, namely 2012-2014. The exception is that the hearing function under the Act was reposed in a pre-existing tribunal, the Victorian Civil and Administrative Tribunal ('VCAT'), rather than in a special tribunal created by the Act. However, at all relevant times, VCAT operated by means of specialist lists and, as Parliament must have appreciated, legal disciplinary matters would fall to be dealt with in the relevant specialist VCAT List. In 2014, that list was known as the Legal Practice List.[144] The list had taken over the functions of the Legal Profession Tribunal which had been the repository of the corresponding hearing function under the Legal Practice Act 1996 (as amended from time to time).

225 In Walsh,[145] the Commissioner was described by the High Court as a newly created 'special statutory officer' with a wide range of functions, including receiving complaints about the conduct of legal practitioners, monitoring investigations by professional organisations into complaints, and arranging for complaints to be independently investigated in certain circumstances. The High Court also noted that the Commissioner was given 'large statutory powers' in doing so.

226 On the other hand, it is true that certain protections for legal practitioners which existed under the New South Wales Act and which were referred to in paragraph 61 of Walsh do not have exact counterparts in the Victorian Act. Thus, in Victoria, the Commissioner may institute proceedings not only with respect to a 'disciplinary complaint' that has been investigated by the Commissioner, but also with respect to the conduct of a practitioner that the Commissioner has investigated of the Commissioner's own motion.[146] A matter before the Tribunal is initiated not by 'an information laid' but rather by an 'application by the Commissioner under s 4.4.13'.[147] Nevertheless, Victorian legal practitioners have a countervailing protection in this respect, being a protection which was apparently not included in the New South Wales Act, namely that the Commissioner may not make an application to the Tribunal for an order in respect of a practitioner unless, at least, the Commissioner is satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct.[148]

227 The Act does not have a provision directly corresponding to the New South Wales provision under which the function of the Tribunal was confined to that of conducting a hearing 'into each allegation particularised in the information'. However, it seems to me that a substantially equivalent position obtains under the Victorian Act, in that the role of the Tribunal is to 'hear and determine an application by the Commissioner under s 4.4.13'.[149] Further, the power of the Tribunal to make an order against the practitioner is conditional on the Tribunal having 'completed a hearing under this Division in relation to an application in respect of [the practitioner]'.[150] In addition, I note, as did the High Court in paragraph 61 of Walsh, that, under the New South Wales legislation, the Tribunal had 'certain powers of amendment to vary the information laid against the legal practitioner, for example, to permit the inclusion of additional allegations where that is justified'. No specific provision is included in the (Victorian) Act for the Commissioner to apply to amend the Commissioner's application, although I would accept that it would be open to the Commissioner to apply for leave to amend the application pursuant to the general provisions of the Victorian Civil and Administrative Tribunal Act 1998 relating to the amendment of documents.[151] I note also that s 4.4.20 of the Victorian Act provides that the Tribunal may find a person guilty of unsatisfactory professional conduct even though the application alleged professional misconduct.

228 It is true that, unlike the New South Wales Tribunal as at the time of Walsh, VCAT is not required to observe the rules of law governing the admission of evidence when hearing a question of professional misconduct. On the other hand, it has been the well-known, virtually universal practice of VCAT for many years to apply the principles stated in Briginshaw v Briginshaw[152] in hearing and determining allegations of serious misconduct by professionals, or comparable allegations. It is a practice which has been endorsed recently by this Court.[153]

229 It seems to me that the similarities between the New South Wales legislation under consideration in Walsh and the Victorian legislation presently in question are sufficient to make applicable, or substantially applicable, to this case, by analogy, the observation made in paragraph 62 of Walsh that the requirements of particularity contained in the Act (and the safeguards thereby introduced for the practitioner concerned) would not be narrowly construed. That view is strongly supported by B (A Solicitor) v Victorian Lawyers RPA Ltd[154] and Legal Services Commissioner v Madden,[155] respectively. In Legal Services Commissioner v Madden,[156] in relation to the closely comparable Queensland provisions, the Court (Holmes and Fraser JJA and White J) said:

The disciplinary processes are not criminal in nature.[157] But the 2007 Act does adopt the familiar adversarial procedure under which it is no part of the judicial function to determine what charges are to be brought or pursued: under this Act the decision to institute proceedings is the province of the

executive and decisions directed to ensuring a fair trial and prevention of abuse of the Tribunal's processes are the province of the Tribunal.[158]

230 In paragraph 63 of Walsh, the High Court noted that the function of the Tribunal, after having completed a hearing 'relating to a complaint against a legal practitioner', was to determine whether it was satisfied that the legal practitioner was guilty of professional misconduct or unsatisfactory professional conduct and '[o]nly if it is so satisfied may it make any of the orders specified in the Act...'. The Victorian Act contains a substantially equivalent provision, which is worth setting out in full:

4.4.16 Determination of Tribunal

If, after it has completed a hearing under this Division in relation to an application in respect of an Australian legal practitioner, the Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make any orders it thinks fit, including any one or more of the orders specified in section 4.4.17, 4.4.18 or 4.4.19.

231 On the other hand, unlike the New South Wales legislation, the Victorian Act does not contain a special provision relating to appeals, but rather leaves that matter to the relevant provisions of the Victorian Civil and Administrative Tribunal Act 1998. Those provisions are contained in Pt 5 of that Act, most relevantly in s 148. An appeal under s 148 is 'from an order of the Tribunal in the proceeding'. While that language may be broader than the expression 'against the Tribunal's determination of a complaint' which was contained in s 171F of the New South Wales Act (being language the specificity of which was emphasised by the High Court in Walsh),[159] nevertheless, in Victoria, a person dissatisfied with an order of the Tribunal may only appeal from it on a question of law. By contrast, the appeal under s 171F of the New South Wales Act was an appeal in the nature of a rehearing as to both fact and law.

232 Section 4.4.39 of the (Victorian) Act provides:

4.4.39 Jurisdiction of Supreme Court

The inherent jurisdiction and powers of the Supreme Court with respect to the control and discipline of local lawyers are not affected by anything in this Part, and extend to -

(a) local legal practitioners; and

(b) interstate legal practitioners engaged in legal practice in this jurisdiction.

There was a corresponding provision, namely s 171M, in the New South Wales Act. It was considered in Walsh. Notably, for reasons corresponding with those given by the High Court in paragraphs 64 to 67 of Walsh, the inherent jurisdiction of the Victorian Supreme Court preserved by s 4.4.39 is not available to the Court upon an appeal under s 148 of the Victorian Civil and Administrative Act 1998.

233 To adapt the language in paragraph 66 of Walsh, the function of VCAT in this case was to hear and determine the application brought by the Commissioner under s 4.4.13. And the function of the Trial Division of the Supreme Court (and likewise the function of this Court if leave to appeal from the Trial Division were to be granted) is, and is only, to hear and determine the appeal on a question of law brought by the applicant from the order made by VCAT in relation to the Commissioner's application. To go beyond that function would be to exceed the jurisdiction conferred on the Supreme Court by the relevant legislation.

234 Even if, contrary to my view, the reasoning in Walsh relating to the issue of jurisdiction be not applicable in this matter, nevertheless, the same effective result is produced by the undoubted application of the principles of procedural fairness to a proceeding before VCAT in which a legal practitioner is accused of professional misconduct, and to any appeal or application for leave to appeal therefrom.

235 In Kyriackou v Law Institute of Victoria,[160] this Court (Warren CJ and Osborn JA and Ginnane AJA) observed, in a closely comparable context, that particulars of disciplinary charges play an important role in affording a fair hearing to the person who was the subject of the charge. The Court cited with approval what had been said by the Full Court in 1988 in R v Solicitors' Disciplinary Tribunal; Ex parte L (a solicitor)[161] in relation to a notice given to a solicitor of disciplinary charges brought under the Legal Profession Act 1958. The passages cited by this Court from the 1988 decision included the following:[162]

It is sufficient to say that a solicitor presented before a full hearing of the Solicitors' Disciplinary Tribunal should be made clearly aware, before the hearing commences, of that with which he is charged, and what material facts are alleged to constitute the charge or charges against him: see Gee v General Medical Council;[163] Johnson v Miller.[164]

...

Ever since Ridge v Baldwin[165] it has been accepted that in a case [such] as the present the precise nature of the charge must be clearly spelt out. The solicitor's livelihood is at stake.

Should some new matter of misconduct be unearthed during the hearing, it will depend on [the] circumstances whether the Tribunal will have jurisdiction to hear it. At the very least a new charge would have to be laid (before it could be relied upon) so that the solicitor can then know of it, appreciate what he has to meet and be allowed ample opportunity to meet it: Lau Liat Meng v Disciplinary Committee.[166]

236 In R v Solicitors' Disciplinary Tribunal; Ex parte L (a solicitor) the Full Court had also said:[167]

The particulars must be such as will enable the solicitor to know precisely what is the case which is being put against him and how it is being put, so that he may cross-examine witnesses, lead evidence and make submissions relevant to the matter: cf Etherton v Public Service Board of New South Wales.[168]

The 'matter' cannot be left under the overall cloak of misconduct, which is so wide as to allow of innumerable assertions, and to embrace as it does any conduct which could reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency: Myers v Elman;[169] Re a Solicitor.[170]

In addition, the Full Court had said:[171]

If a course of conduct is relied upon, it should be made clear that this is so - for duplicity can apply to charges before domestic tribunals and lead to the striking out of charges suffering from that defect.

237 The application of procedural fairness to disciplinary proceedings is discussed by Professor Dal Pont in his text Lawyers' Professional Responsibility, in which he observes:[172]

Investigations and proceedings into disciplinary matters must be conducted according to the standards of procedural fairness.[173] Requirements of procedural fairness are superimposed on the statutory framework by the general law, and so may extend beyond the specific requirements of the statute.[174] As disciplinary bodies and tribunals exercise adjudicative functions, a high standard of procedural fairness is expected, akin to that applicable in the courts.[175]

238 Recently, in Minister for Immigration and Border Protection v WZARH,[176] Gageler and Gordon JJ said:

The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes.

239 In the present case, in my opinion, the written 'application for order' dated 18 December 2013 made by the Commissioner to the Tribunal under s 4.4.13 of the Act was ambiguous as to whether dishonesty was alleged in respect of any particular assertion or assertions of fact or at all.

240 The written application was largely in narrative form. It commenced with allegations as to Mr Pham's status as an Australian legal practitioner and as the holder, from 24 February 2012, of a series of restricted practising certificates. It is desirable to set out in full the terms of paragraph 2 of the application, which were as follows:[177]

1. From 16 February 2012 to 24 March 2013, you (the Respondent) were:

(a) an Australian legal practitioner within the meaning of the Act; and

(b) the holder of a local practising certificate issued pursuant to the Act and subject to the following conditions:

(i) to practice as an employee of a law practice;

(ii) not to receive trust money; and

(iii) to engage in supervised legal practice only, until the completion of the prescribed period of supervised legal practice under section 2.4.18 of the Act.

The application then alleged, in substance, that between 24 November 2011 and 24 February 2012, Mr Pham had worked at Kabo Layers as a 'subcontractor'; had held no practising certificate; had not undertaken any legal work, supervised or otherwise; had normal working hours of Monday to Saturday 9:00 am to 5:00 pm; and had not worked an extra 76 hours per week, every week.

241 Next, the application to VCAT dealt with Mr Pham's employment with Kabo Lawyers between 27 February 2012 and 10 July 2012. Copies of parts of his contract of employment were annexed. Then it was alleged that Mr Pham had drafted, and had obtained from Mr Kabo, a letter dated 6 August 2012 confirming Mr Pham's dates of employment; and that, on 7 August 2012, Mr Pham had made the statutory declaration in question.[178] Copies of those two documents were annexed as well.

242 It is desirable to set out in full the following six paragraphs of the application, namely paragraphs 17-22 (inclusive):

1. In your Statutory Declaration, you declared (amongst other things) that:

(a) you were employed at Kabo Lawyers 'as a Solicitor between the dates of 24 November 2011 and 10 July 2012'; and

(b) in addition to your normal weekly hours, you worked '58 extra hours (Monday to Saturday) and 18 hours on Sundays, from home...I estimate that I worked an extra 76 hours each week via this arrangement...'.

1. The matters outlined in paragraph 17(a) - (b) above were not true, and nor was the contents of Mr Kabo's letter to the Legal Services Board.
2. You were aware, or ought to have been aware, that the matter outlined in paragraph 17(a), was not true.
3. You were aware that the matter outlined in paragraph 17(b) was not true.
4. On 7 August 2012 you submitted an application to the Legal Services Board to have the supervisory condition removed from your Practising Certificate on the basis that you had completed 2 years worth of supervised legal practice (your application).

Annexure C: Letter to the Legal Services Board dated 7 August 2012, minus the attachment (your Statutory Declaration).

1. You intended the Legal Services Board to act on the contents of your Statutory Declaration, in particular on the assertion that you had completed two years worth of supervised legal practice.

243 The next section of the application to VCAT dealt with correspondence between Mr Pham and the Law Institute of Victoria concerning Mr Pham's application to remove the supervision condition from his practising certificate, and related correspondence.

244 Next, the application to VCAT referred to and annexed correspondence passing between the Commissioner and Mr Pham in the course of the Commissioner's investigation into the circumstances surrounding the making of the statutory declaration. Extracts from two letters from Mr Pham were set out. It is desirable to set out paragraphs 34 to 36 in full:[179]

1. On 15 April 2013, the Commissioner wrote to you setting out the allegations against you, and giving you the opportunity to provide any further written submissions or material you would like considered before a decision was made (the Murray letter).

Annexure M: Letter from the Commissioner dated 15 April 2013.

1. On 17 April 2013 you replied to the Murray letter, providing further materials and saying that:

... the facts that I stated in Statutory Declaration to support that believe [sic] is true, and I have always maintain [sic] it [sic] to be true, and in my view the information I have provided supports this, at least on the balance of probabilities.

Annexure N: Letter to the Commissioner dated 17 April 2013, together with enclosures.

1. On 6 May 2013, you wrote again the Commissioner providing further documents (some of which had previously been provided) and repeating that '...When I prepared my Statutory Declaration it was on the believe [sic] that I meet the requirements of the Act, regulations and policies...'

Annexure O: Letter to the Commissioner dated 6 May 2013, minus the enclosures.

245 The balance of the application to VCAT was in the following terms:

NOW TAKE NOTICE THAT

I am satisfied that in the circumstances there is a reasonable likelihood that the Tribunal would find you guilty of professional misconduct. Pursuant to section 4.4.13(2) of the Act I now make application to the Tribunal for an order against you in respect of professional misconduct as follows:

CHARGE 1

You are guilty of professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that on 7 August 2012 you acted in gross breach of your professional duty by executing and then submitting a Statutory Declaration to the Legal Services Board, in circumstances where you knew, or ought to have known, the contents of the Statutory Declaration was false.

Particulars

The particulars of the charge relied upon are set out in paragraphs 2(a) and (b) and paragraphs 4 - 25, and 35 above.

CHARGE 2

Alternatively, you are guilty of professional misconduct within the meaning of section 4.4.3(1)(b) of the Act, in that on 7 August 2012 you executed and then submitted a Statutory Declaration to the Legal Services Board, in circumstances where you knew, or ought to have known that, the contents of the Statutory Declaration was false, which occurred in connection with the practice of law and justifies a finding that you are not a fit and proper person to engage in legal practice.

Particulars

The particulars of the charge relied upon are set out in paragraphs 2(a) and (b) and paragraphs 4 - 25 and 35 above.

Note

You are referred to Divisions 4 and 5 of Part 4.4 of the Act.

NOW TAKE NOTICE that pursuant to section 4.4.15 of the Act this Application will be heard and determined by the Victorian Civil and Administrative Tribunal at a time and place appointed in writing by the Tribunal.

Signed: Delegate of the Legal Services Commissioner

Date: 18th December /2013.

246 In charge 1, the presently significant words are: 'you knew, or ought to have known, the contents of the Statutory Declaration was false'. In charge 2, the presently significant words are almost identical: 'you knew, or ought to have known that, the contents of the Statutory Declaration was false'.

247 The wording of these formal charges is problematic in several ways. First, putting aside for a moment the context supplied by the terms of the document as a whole, the formal charges would appear to contain an allegation that the entire contents of the statutory declaration were false. In truth, of course, the Commissioner did not contend that everything contained in the (quite detailed) statutory declaration was false, nor even that everything stated in the principally relevant paragraphs (paragraphs 6 and 7) was false. Far from it.

248 There are 'particulars' stated under each charge, but they merely refer to certain (numerous) paragraphs of the narrative contained in the earlier sections of the application document. The particulars themselves do not specify what was alleged to be false in the statutory declaration.

249 Moreover, each charge asserts that Mr Pham 'knew, or ought to have known' of the relevant falsity (whatever that falsity was). That verbal formula is not suitable to convey a definite charge of deliberate, dishonest lying, or any other charge of dishonesty. It risks duplicity. Thus, in Brereton v Legal Services Commissioner,[180] Bell J pointed to the problem that was thrown up in that case by the fact that VCAT had found that 'Mr Brereton was guilty of misconduct at common law by having "misappropriated trust moneys" and that he "well knew (or ought to have known)" what his responsibilities were'. Bell J said: 'It is the alternative state of mind - "ought to have known" - that is the problem'. Bell J went on to say:[181]

[58] Generally, professional misconduct at common law is conduct which 'would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency ... Mere negligence, even of a serious character, will not suffice.'[182] Therefore the tribunal could not have found Mr Brereton guilty of misconduct at common law because he had failed to act in accordance with what he 'ought to have known'. There had to be more than that. Yet the tribunal did not base its misconduct finding only on what Mr Brereton 'well knew', but on that and the alternative finding about what he 'ought to have known'.

[59] The state of knowledge, belief or intent associated with being negligent, incompetent and in reckless disregard of professional responsibilities is less than, and does not amount to, dishonesty, and is not sufficient to establish that a lawyer is guilty of misappropriation. ...

250 An appeal from Bell J was dismissed: Legal Services Commissioner v Brereton.[183] The leading judgment was given by Tate JA, with whom Nettle JA agreed. Ashley JA also agreed, adding that, like Tate JA, his Honour preferred to leave for final decision on another day the question whether proof of dishonesty is always required when a charge of misappropriation is brought in a professional disciplinary context.[184] It was unnecessary for their Honours to decide that issue because Bell J had been correct in concluding that the particulars relied on by the Commissioner in that case in support of his allegation of misappropriation had accused Mr Brereton of dishonesty, as indeed was accepted by the Commissioner.[185] That being so, the Tribunal had erred, as Bell J had correctly found, in failing to apply the appropriate test for dishonesty as set out in Peters v The Queen.[186]

251 Tate JA observed[187] that the test stated in Peters, to be applied for determining whether an act is dishonest, had previously been applied in the context of misconduct by a professional in Harle v Legal Practitioners Liability Committee,[188] where Chernov JA stated that whether 'particular conduct amounts to dishonesty involves the consideration of the mental state - the knowledge, belief or intention - of the person whose conduct is impugned'.[189] Tate JA noted,[190] with apparent approval, that, by reference to Harle, the trial judge (Bell J) had said:[191]

[53] ...What must be established is that the person subjectively intended to do the acts which are said to be objectively dishonest by the ordinary standards of reasonable and honest people. Thus the course to be adopted in determining whether conduct is dishonest was explained by Toohey and Gaudron JJ in Peters v R as follows:

In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest ... If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people.

[54] The steps involved in this formulation are: (1) identify the knowledge, belief, or intent which is said to render the acts dishonest; (2) determine whether the accused (or defendant in the civil context) subjectively had that knowledge, belief or intent; and (3) determine whether, on that account, the acts were objectively dishonest according to the standards of ordinary and decent (that is reasonable and honest) people.

252 In the present case, the Tribunal did not expressly take the third step required by Peters, Harle and Brereton, ie the Tribunal did not expressly ask itself whether Mr Pham's acts were objectively dishonest according to the standards of ordinary and decent (that is reasonable and honest) people. However, as already indicated, I am prepared to accept (as does the majority) that the Tribunal implicitly found dishonesty. I do so partly because the Tribunal found that Mr Pham knew that statements made in his statutory declaration were false;[192] partly because the Tribunal referred to a 'clear breach' of a practitioner's duty of 'honesty'[193] in relation to the contents of documents; and partly because the Tribunal observed that a false declaration by a legal practitioner 'can only' be seen as constituting professional misconduct.[194] I would further proceed on the basis that the Tribunal had duly asked itself, implicitly, the third Peters question. Mr Pham has not argued the contrary, although I note that he has not had the benefit of legal representation at any time.

253 In the result, this case is the converse of Brereton. In Brereton, dishonesty was alleged but not duly found. In the present case, dishonesty was found, but the question is: was it duly alleged?

254 In my view, dishonesty was not duly alleged. Indeed, in my view, it is not open to this Court to proceed on the basis that dishonesty was alleged at all.

255 In the Commissioner's written application to the Tribunal, the nearest thing to a proper allegation of dishonesty was the allegation in paragraph 20 that Mr Pham was 'aware that the matter outlined in paragraph 17(b) was not true'. (Paragraph 17(b) contained a brief summary of what Mr Pham had declared as to his working hours.) The expression 'ought to have been aware' did not appear in paragraph 20. However, even there, the written application did not allege dishonesty in terms, and, moreover, the Commissioner's counsel later opened the case in a fashion that, in my view, was inconsistent with the Commissioner having raised an allegation of dishonesty for Mr Pham to meet, even in relation to the number of hours that he had worked. I will return to that point shortly. In the meantime, it may be noted that in paragraph 19 of the written application the expression 'ought to have been aware' continued to appear. Hence, there was certainly nothing in paragraph 19 amounting to a proper allegation of dishonesty with respect to what Mr Pham had declared in relation to the first three months of his work at Kabo Lawyers. Nor was there such a thing anywhere else in the document. Moreover, once again, the opening by counsel for the Commissioner was inconsistent with there being an allegation of dishonesty in that respect, either.

256 Counsel for the Commissioner opened the case on 17 July 2014. At no time during her opening or at any later point of the oral hearing (so far as the transcript shows) did she allege dishonesty in terms. Initially, she appeared to distinguish between the matter of Mr Pham's working hours (saying, 'the practitioner knew that he did not work those hours') and the matter of Mr Pham's status during the first three months of his association with Kabo Lawyers (saying that the practitioner 'knew or ought to have known that he was not employed as a lawyer between November 2011 and July 2012 [sic]'). However, most significantly, she immediately proceeded to say:[195]

The practitioner has asserted in his correspondence with the Institute and the Commissioner that he believes the contents of his statutory declaration are true. It may well be that he believes he's completed two years' worth of supervised legal practice but that's not the relevant questions [sic] here. The issue is whether the statements as to the nature of his work with Kabo Lawyers and the volume of that work are true...As I said, it's a simple case from the Commissioner's perspective. There are the two assertions in the statutory declaration in which it was said that the practitioner knew or ought to have known they were false.

257 In paragraph 5 of the Commissioner's written submissions to VCAT dated 4 August 2014, counsel repeated, almost verbatim, the Commissioner's general position (including the Commissioner's concession about Mr Pham's 'belief') as put during the opening, to wit:

1. Mr Pham asserted in his correspondence with the Commissioner that he believes the contents of his statutory declaration to be true (Annexure O to the Application). It may well be that he believes that he has completed the 2 years' worth of supervised practice, but that is not the relevant question here. The issue is whether the statements as to the nature of his work at Kabo Lawyers and the volume of that work are true and whether Mr Pham knew, or ought to have known, those statements were not true.

Thus, the Commissioner referred again to both statements, and submitted that the issue was whether those statements were true and whether Mr Pham knew, 'or ought to have known', that those statements (plural) were not true.

258 Even if one ignores the Commissioner's repeated use of the expression 'ought to have known', the concession[196] made by the Commissioner is quite inconsistent with any suggestion that the Commissioner was alleging dishonesty against Mr Pham.

259 In his submissions to VCAT, to the Trial Division and to this Court, Mr Pham has relied on the Commissioner's concession in various ways, including as support for the present point. The Commissioner has sought to deflect Mr Pham's reliance on the concession by making submissions along the lines of what was said in paragraph 88 to 90 of the Commissioner's submission to the Trial Division:

1. The Applicant relies heavily on the Respondent's concession that the Applicant may have believed he had completed 2 years' worth of legal practice, a belief about a legal conclusion. However, that is different from his knowledge and belief as to the veracity of the facts on which that belief is based. In particular the veracity of the statements that he was employed as a solicitor for the entire period claimed, and that he was engaged in legal practice for the hours asserted (17.5 hours per day, 7 days per week, for over 7 months).
2. The Applicant was not charged with making a false statement in relation to the assertion that he had completed 2 years of supervised legal practise [sic].
3. Again, the Applicant has misunderstood both the nature of the charges and the way the case was put before the Tribunal.

260 There are two answers to the Commissioner's submissions along those lines. The first is that, logically, Mr Pham could not possibly have believed that he had completed two years' worth of legal practice (whether or not that may be called a belief about a legal conclusion) unless he believed in the veracity of the facts on which the belief was based. Second, in the self-same written submissions which contained paragraphs 88 to 90 quoted above, the Commissioner, by his counsel, said:[197]

1. The Tribunal member did not ask himself the wrong question.
2. The charge did not use the word dishonesty. It was framed in terms of a statutory declaration that was made with content that was false which the maker of the declaration (the Applicant) knew or ought to have known was false.
3. The Respondent's case in the Tribunal was clear from the outset. It was not required to use the word 'dishonesty', nor was a finding of 'dishonesty' required to make out the charge. It would be enough that the Applicant ought to have known the contents of his declaration were false.
4. There is no issue in the way the charge was framed or the way the Tribunal dealt with that charge.

Later in the same document, the Commissioner submitted that there was no requirement that dishonesty be found before conduct of a professional can be characterised as 'dishonourable and disgraceful'.

261 Lest there be any doubt about the import of the Commissioner's written submissions just mentioned, in his written case to this Court the Commissioner said:

1. The charge before the Tribunal did not use the word dishonesty or allege dishonesty. It was framed in terms of a statutory declaration that was made with content that was false which the maker of the declaration (the Applicant) knew or ought to have known was false.
2. The Tribunal found the Applicant breached his duty of 'honesty and candour', however that does not amount to a finding of 'dishonesty'. As the learned trial judge found (at [43]): '"honesty" was included in the statement by way of a general description of the scope of the duty not by way of finding that that part of duty had been breached'.
3. The Commissioner's reference to 'dishonesty' in his submissions before the Tribunal was in the context of the penalty, conditional on a finding that the Applicant had breached his duty of 'honesty and candour'. It was not submitted as an element of the offence.
4. As the learned trial judge noted (at [43]), the relevant element was knowledge (not dishonesty), and knowledge was proven.

262 During the oral hearing before this Court, counsel for the Commissioner expressly adopted the entirety of the Commissioner's written case. Save to observe faintly and in passing that the abovementioned concession may not have been justified, counsel for the Commissioner did not resile in any way from the position that the Commissioner had taken before the Trial Division and in the Commissioner's written case. In particular, counsel for the Commissioner did not seek to resile from the Commissioner's position that dishonesty had not been alleged against Mr Pham (nor found against him by the Tribunal).

263 Might it be said that, regardless of the subjective attitude, then or now, of the Commissioner, Mr Pham must have appreciated, when he was before VCAT, that he was facing a charge or charges of dishonesty? Might this be an answer to Mr Pham's present point, at least insofar as it is based on the principles of procedural fairness?

264 In support of such a view, it might be pointed out that Mr Pham went on the front foot at the outset of the VCAT hearing, submitting that VCAT had no jurisdiction because the Commissioner was really endeavouring to have him found guilty of perjury. In the course of that debate, Mr Pham did refer to the elements of perjury, including the required element of dishonesty. However, as the majority has shown, Mr Pham's arguments in this respect were badly misconceived. In any event, at no stage did Mr Pham aver in terms that he understood the Commissioner to have an actual intention to prove dishonesty on Mr Pham's part.

265 On the other hand, what of the Commissioner's written submissions to VCAT relating to penalty, wherein the Commissioner did use the word 'dishonesty' several times? Again, there are several answers to this. The first is supplied by the Commissioner himself, in paragraph 20, set out above, of his written submissions to the Trial Division, where he said that those references to dishonesty were confined to the question of penalty and had not been directed to the 'element[s] of the offence'. In any event, those submissions had been filed with VCAT only after the conclusion of the oral hearing. Mr Pham has complained, with justification, that the references to dishonesty contained in those submissions were inconsistent with the way in which the Commissioner had previously argued his case, and that they served unfairly to lead VCAT to find dishonesty against him.[198] In any event, in all of his subsequent submissions the Commissioner has been at pains to disavow any allegation of dishonesty.

266 This case is relevantly indistinguishable from Legal Services Commissioner v Madden,[199] as Mr Pham submits. And it is distinguishable from Kyle v Legal Practitioners' Complaints Committee.[200] In that case, a concession relating to dishonesty had been made on behalf of the Legal Practitioners' Complaints Committee. However, on close examination, it was seen to be a narrow concession that was not inconsistent with the Committee's submission, accepted by the Full Court, that the disciplinary tribunal had correctly perceived that the Committee's case before it did involve an allegation of deceit or dishonesty. That allegation had been subject to an express qualification, but, as Parker J said:[201] 'While the precise expression of that qualification was not at first clear, and may well the subject of criticism, it is unmistakable that there was only a qualified concession of an absence of deceit or dishonesty'. By contrast, in the present case, the concession was broad, unqualified and repeatedly made.

267 In my opinion, given the stance taken by the Commissioner and the principles stated by the High Court in Walsh, it is not open to this Court to proceed on the basis that the allegations made against Mr Pham by the Commissioner in the Tribunal included any allegation of dishonesty. In those circumstances, this Court is compelled to hold, in my opinion, that the Tribunal exceeded its jurisdiction in finding dishonesty against Mr Pham. For similar reasons, I consider that the Tribunal denied Mr Pham procedural fairness in that regard.

268 In my view, Mr Pham is also entitled to succeed on the ground that the Tribunal wrongly required submissions on penalty to be made before the issues relating to liability had been determined.

269 I do not accept the Commissioner's submission that, before the trial judge, Mr Pham abandoned his contention that he was not provided with a fair hearing as to penalty. The relevant part of the transcript of the hearing before the trial judge shows only that Mr Pham declined an opportunity offered to him by the trial judge to file an affidavit in support of a much narrower contention that Mr Pham had advanced. That contention was that the Tribunal member had said, at the conclusion of the hearing on the second day (for which there is no recording or transcript), that the parties would be returning on another day, on a date to be fixed. On that basis, Mr Pham told Bell J that he had believed that there would be a further hearing on penalty.[202] There were circumstances consistent with the reasonableness of Mr Pham's asserted belief. Near the end of the first hearing day before the Tribunal, counsel for the Commissioner had suggested that the parties later file written submissions 'in terms of the liability'.[203] Further, the authenticated form of the interlocutory order made by the Tribunal at the end of the second day (21 July 2014, wrongly dated as 17 July 2014) merely provided for the filing of 'written submissions', with no express mention of penalty. The order did not indicate that the decision had been reserved. To the contrary, it included, as paragraph 4: 'Adjourned to a date to be fixed'. However, Bell J pointed out to Mr Pham (who, as mentioned above, was unrepresented) that the Commissioner disputed his contention as to what the Tribunal member had said at the end of the second day; and his Honour told Mr Pham that, if Mr Pham wished to pursue his contention, he would need to provide evidence, by affidavit, of the facts. After discussion, Mr Pham said to Bell J that he did not think that 'that' would bear on the ultimate outcome, and did not think it was 'even necessary'.[204] Consistently, Bell J said, in this regard, only that a 'contention that VCAT failed to provide Mr Pham with a promised opportunity to make submissions in relation to penalty was abandoned at the hearing of the application for judicial review'.[205] In any event, it has not been said, and could not be said, that, at VCAT, Mr Pham sought, or consented to, any arrangement for the delivery of submissions on penalty prior to the making of findings on liability.

270 Before the Trial Division, Mr Pham filed extensive submissions complaining about the omission of the Tribunal to make and publish liability findings before hearing submissions on penalty.[206] Those submissions relied principally on Battle v Bundagen Co-operative Ltd [No 2][207] and Smith v New South Wales Bar Association.[208]

271 As Mr Pham points out, the trial judge did not deal with this particular point, except by referring to what Mr Pham had said at the oral hearing before his Honour (in relation to the offer of time to file an affidavit). In fairness to his Honour, he was confronted with a very large and very confusing array of submissions and other documentary material put in by Mr Pham; and the present point was barely touched on in Mr Pham's (ultimate) written submissions in reply, which themselves occupied, in total, 106 pages.[209]

272 In Battle,[210] in the three paragraphs on which Mr Pham principally relied, Hodgson JA (with whom Campbell JA relevantly agreed) said:

[64] The most substantial ground supporting denial of natural justice is that there was no separate finding of guilt, and thus that Mr Battle had no reasonable opportunity to address the meeting on penalty. Mr Doyle for Mr Battle submitted that it was established by Hall v New South Wales Trotting Club Ltd[211] that there must be a two-stage process, in which first the question of guilt is decided, and then there is a consideration of penalty in which the person found guilty has an opportunity to be heard; and that this principle had been applied in Forge v Australian Securities and Investment Commission.[212] In Malone v Marr,[213] Holland J applied Hall to a domestic tribunal, namely a committee of the North Sydney District Rugby League Football Club.

[65] However, I note that in McClelland v Burning Palms Surf Life Saving Club,[214] decided before Forge , Campbell J at [125] considered there was 'no rule of law to the effect that it is not possible for there to be a single hearing which addresses both questions of guilt, and on a contingent basis, questions of penalty', referring to Barnes v Australian Telecommunications Commission,[215] a decision of Spender J.

[66] I agree with Campbell J that there is no rule of law mandating a two-stage process in all circumstances. In cases like Hall and Forge , where there are both a substantial number of different findings on guilt that could be made, and also a considerable range of consequential penalties that could be imposed, it is generally the case that natural justice does require first a determination of what findings are made on guilt, and second an opportunity to be heard concerning the range of possible penalties. Otherwise, it is not possible for submissions concerning penalty to be appropriately focussed. However, in my opinion, if for example there were only two possibilities on guilt, that is, either guilty or not guilty on one charge, then it could be that submissions concerning penalty could be appropriately focussed in a single-stage hearing. And where, as in this case, there are only two possible results on 'penalty', that is, expulsion or non-expulsion, again it may be that submissions concerning penalty could be sufficiently focussed in a single-stage hearing.

In the same case, Sackville AJA detected in the rules of the Co-operative an obligation to conduct a two stage hearing process. However, his Honour went on to say that, if that were not the correct construction of the rules, then he would have accepted Mr Battle's argument that he was denied a reasonable opportunity to be heard in the circumstances of the particular case. Sackville AJA said:[216]

It is difficult to understand, in a case where the allegations involve a large number of possible combinations and permutations of detrimental conduct, how Mr Battle could have had a reasonable opportunity to argue against expulsion when he never knew the precise case he had to meet on that issue.

273 Relying in part on the cases and judicial observations referred to in paragraph 65 of the judgment of Hodgson JA in Battle, the Commissioner submits that there is no absolute rule of law to the effect that it is not possible to have a single hearing which addresses both questions of guilt, and on a contingent basis, questions of penalty. Words to that effect were used by Campbell J in McClelland v Burning Palms Surf Life Saving Club.[217] However, by the time of Battle, Campbell J had become Campbell JA and, as mentioned above, he expressed agreement with the judgment of Hodgson JA in relevant respects. Hodgson JA, in turn, said that where there are both a substantial number of different findings on guilt that could be made, and also a considerable range of consequential penalties that could be imposed, it is 'generally' the case that natural justice does require first a determination of what findings are made on guilt, and second an opportunity to be heard concerning the range of possible penalties. In my view, the present is a case of that kind.

274 As to Barnes v Australian Telecommunications Commission,[218] what was said by Spender J in this regard was not necessary to the decision. His Honour set aside the decision objected to by Mr Barnes on the basis of a separate denial of natural justice.

275 The Commissioner also relies on Rush v WA Amateur Football League (Inc).[219] That was a case relating to a domestic tribunal. It was a tribunal with power to deal with participants in the WA Amateur Football League. The plaintiff was unsuccessful in challenging a certain decision made by an investigation tribunal of the football league. The principal ground for refusing relief to the plaintiff was that the arrangements between the parties were held not to give rise to legally enforceable contractual relations. Pullin JA also expressed the view that it is not always necessary for a domestic tribunal to have a separate hearing to deal with issues of penalty. His Honour preferred to say that there must be adequate opportunity to address the question of penalty. His Honour considered that there had been adequate opportunity in the instant case. Buss JA agreed with Pullin JA on this point. He emphasised that the requirements of procedural fairness depend upon the circumstances of the particular case.[220] His Honour followed Barnes in this regard. Wheeler JA expressed her agreement with Pullin JA. In my view, Rush, being a case relating to a domestic tribunal, may be of less assistance than Battle and certain other cases to which I shall shortly refer in relation to what may be required in the context of statutory tribunals with jurisdiction to discipline professionals. On the other hand, I recognise that Barnes, McClelland and Rush were followed in the context of a discipline application under the Legal Profession Act 2007 (Qld) in Puryer v Legal Services Commissioner.[221] However, with respect, I consider that in Puryer[222] the Court misinterpreted and misapplied what had been said in Legal Services Commissioner v Madden.[223] In Madden, a case in which, before the Tribunal, professional misconduct had been conceded by the practitioner but dishonesty had not been alleged by the Commissioner as to liability or penalty, the Court of Appeal rejected an argument put by the Commissioner on the appeal to the effect that it had been open to the Tribunal to reject the Commissioner's stance and to make a finding of dishonesty of its own. The Commissioner had tried to support this argument by an analogy with criminal cases, in which, for sentencing purposes, the Court may make its own findings of fact at the sentencing stage. The Court of Appeal rejected this analogy, saying that the Queensland equivalent of s 4.4.16 of the (Victorian) Act does not envisage the 'two-step process' contemplated by the argument. In my view, given that context, the Court of Appeal in Madden should not be taken to have meant that the effect of the relevant section was that a separate hearing on penalty was not required even when fairness would call for one, whereas Puryer seems to have proceeded on just such a reading of Madden.

276 In any event, in my opinion, the weight of authority at intermediate appellate level - especially recent authority - favours the statement made by Murrell CJ in 2014 in Legal Practitioner v Council of the Law Society of the ACT [No 2],[224] namely:

In any event, as a general proposition, a professional person should not be required to formulate submissions about appropriate penalty orders until the disciplinary tribunal has determined whether and in what respects the person's conduct constituted professional misconduct: Lucire v Health Care Complaints Commission;[225] King v Health Care Complaints Commission.[226]

In my view, the decisions of the Court of Appeal of New South Wales in Lucire and King, to which Murrell CJ referred, amply bear out her Honour's general proposition. In King, an appeal against a decision of a medical tribunal on a point of law, Handley JA (with whom McColl JA agreed) said:[227]

[203] The need for a second sentencing stage is an accepted feature of the criminal process. In Forge v ASIC[228] this court applied the principle to proceedings for civil penalties against directors which could involve disqualification. In Hall v New South Wales Trotting Club Ltd[229] the principle was applied to proceedings in a domestic tribunal involving possible expulsion from a voluntary association. In that case Hutley JA said at p 382:

...a person found guilty cannot really address until he knows of what he has been found guilty.

[204] In Lucire[230] Basten JA, giving the principal judgment, said that the practitioner:

...should not have been required to address submissions to the Tribunal on the appropriate orders until the Tribunal had determined whether and in what respects her conduct constituted professional misconduct.

[205] In my judgment this ground of appeal succeeds, and the orders of the Tribunal should be set aside. ...

277 In another case decided in 2014, Bryant v Hawkesbury Radio Communication Co-operative Society Ltd,[231] Sackar J of the New South Wales Supreme Court said:

In cases like Hall and Forge v ASIC,[232] where different results on penalty might flow from which particular charges are made out, it may well be that a two stage process is mandatory. If there is a range of allegations (some of which may involve say dishonesty, others raising no higher than reckless behaviour), it is obvious that very different penalties may flow.

278 It is true that Mr Pham had included some submissions relating to penalty in his undated post-hearing written submission to VCAT. However, in the introduction to that submission, Mr Pham indicated that, in the relevant section (Part F), he would 'briefly' make submissions regarding the penalty sought by the Commissioner. He continued: 'These will only be brief submissions, further and more detailed submissions regarding penalty can be prepared and submitted at a later time (if required)'.[233]

279 Whatever other submissions Mr Pham might have been minded to add at a later stage, Part F of his actual submission to VCAT was fairly detailed. It occupied five pages (12 paragraphs). However, the submissions involved acute awkwardness of the very kind which, as the authorities recognise,[234] will generally be involved where the person concerned is making a submission on penalty before liability has been decided. For example, the submissions commence with an express assumption that the Commissioner's charges will be made out. But then follows speculation that, in those circumstances, the Tribunal would be likely to have found, merely, that Mr Pham 'ought to have known' that the contents of the statutory declaration was false. The submission eschews a scenario involving a finding that Mr Pham intentionally (with actual knowledge) made a false statement ('given the fact that the [Commissioner] also accepts that [Mr Pham] may well have had an honest belief'). The remaining parts of the submission are made on that basis, exclusively. Various decided cases are distinguished on the ground that they involved intentionally swearing false affidavits. It is submitted by Mr Pham that the relevant conduct, on the assumptions made, would not amount to misconduct at all, much less professional misconduct as defined.

280 Mr Pham can hardly be blamed for taking that approach. He had been put in a most invidious position by the inclusion of submissions on penalty in the Commissioner's written submission. He should not have been called upon to address the topic of mitigation with respect to an assumed finding that he had intentionally or deliberately made a false statutory declaration. Such a finding would have been a finding of dishonesty, devastating for a legal practitioner. Yet the Commissioner has maintained at all times that no allegation of dishonesty was involved. The injustice to Mr Pham is manifest.

281 I do not consider that the case against Mr Pham was so confined that Battle (and cognate cases) may be distinguished on that basis. I have already dealt with the fraught issue of how the case against Mr Pham should be characterised. Whether or not dishonesty should be taken to have been alleged by the Commissioner, there were several possible permutations and combinations of findings on liability that might have emerged. Moreover, the Act provides (non-exhaustively) for a number of different types of order that might be appropriate after a finding of guilt is made.

282 Accordingly, I would uphold Mr Pham's contention that he was denied procedural fairness as a result of the omission on the part of the Tribunal to hold separate hearings as to liability and penalty.

283 Since, in my view, it is necessary for the Commissioner's application against Mr Pham to be reheard and redetermined in accordance with law, it is undesirable that I express any views on the contention by Mr Pham that the decision of the Tribunal was not reasonably open on the facts and the evidence before the Tribunal.[235] Otherwise, I am in substantial agreement with the reasons for judgment of the majority. I agree with the majority that none of the other grounds or arguments raised by Mr Pham would warrant a grant of leave to appeal.

284 I have considered whether, notwithstanding that I would uphold two of the points raised by Mr Pham as indicated above, relief should nevertheless be refused in all the circumstances. However, in the end, I have come to the view that it would not be appropriate to withhold relief. It is not for this Court to concern itself with what might have occurred before the Tribunal if the Commissioner's case had been put in a different way and if procedural fairness had been observed. In Minister for Immigration and Border Protection v WZARH,[236] Gageler and Gordon JJ said:

Where...the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.[237]

In my view, those observations are applicable in this case.[238] The Commissioner made no submission to the contrary. Indeed, the Commissioner impliedly conceded in several places in his various written submissions that Mr Pham had had no real opportunity at all to make submissions on penalty on the footing that dishonesty had been alleged and found.

285 The Tribunal expressed firm views about facts that would need to be reconsidered on a rehearing. In those circumstances, it would be inappropriate for the same Tribunal member to reassess de novo the practitioner's truthfulness.[239]

286 Of course, on a rehearing or any fresh hearing, the Tribunal would not be constrained legally by the order it made originally. Thus, success for Mr Pham on the grounds which I would uphold would involve a risk of double jeopardy.[240] On the other hand, it would be a matter for the Commissioner to determine in the exercise of his discretion whether to seek to present a different case in future; and the fate of any application to amend would be a matter for the Tribunal.[241] On any rehearing or fresh hearing, it would be highly desirable, in my view, if Mr Pham were able to be legally represented.[242]

287 If my views had prevailed in this matter, I would have invited further submissions from the parties as to the costs of the proceeding below and as to the costs of the proceeding in this Court.

288 For the reasons set out above, I would order that:

(1) The application for leave to appeal be granted.

(3) The decision made by the Victorian Civil and Administrative Tribunal on 22 December 2014 be set aside.

(4) The application dated 18 December 2013 made by the respondent, the Legal Services Commissioner, be remitted to the Tribunal, differently constituted, for rehearing and redetermination according to law.

(5) The costs of the proceeding below, and of the application and appeal, be reserved for further submissions.

[1] Legal Services Commissioner v Pham [2014] VCAT 1591 ('Tribunal Reasons').

[2] Pham v Legal Services Commissioner [2015] VSC 671 ('Reasons').

[3] Legal Profession Act 2004 (footnote added).

[7] [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw').

[15] [2001] NSWCA 284; (2001) 52 NSWLR 279 ('Cummins').

[19] Including (inter alia) S v Crimes Compensation Tribunal [1998] 1 VR 83; Love v Roads Corporation [2014] VSCA 129; Hoser v Department of Sustainability & Environment [2014] VSCA 206; Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207.

[26] [1894] 1 QB 750.

[28] [1912] 1 KB 302.

[29] See Myers v Elman [1940] AC 282, 288-9 (Viscount Maugham).

[30] See, eg, In re A Solicitor [1932] ArgusLawRp 113; [1933] VLR 103, 105 (Mann J); Re A Solicitor [1960] VicRp 96; [1960] VR 617, 620, 622 (Dean J); Re Mayes v the Legal Practitioners Act [1974] 1 NSWLR 19, 24-25; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201, 203 (Glass JA and Samuels JA), 207 (Priestley JA).

[31] [2001] NSWCA 284; (2001) 52 NSWLR 279.

[35] [2004] HCA 1; (2004) 216 CLR 253.

[36] Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.

[37] Ibid 267 [20], citing New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, 291 [66].

[41] See, eg, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279-80 (McHugh JA); Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 18-19 (Gray J); Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639, 647 (Meagher JA).

[42] [2005] VSCA 1.

[44] ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 [81].

[45] [2012] VSCA 230.

[48] [2009] VCAT 1200 ('Piva').

[49] [2004] HCA 1; (2004) 216 CLR 253.

[58] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6], (Gleeson CJ, Hayne J).

[61] (2014) 218 FCR 461 ('Today').

[62] Ibid 477 [72], 478 [76], 486 [106] (Allsop CJ, Robertson and Griffiths JJ).

[63] [2015] HCA 7; (2015) 255 CLR 352.

[64] Ibid 371 [32] (citations omitted). The High Court cited Helton v Allen [1940] HCA 20; (1940) 63 CLR 691; Miller v Miller [2011] HCA 9; (2011) 242 CLR 446, 464 [47], 483 [106] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); White v DPP (WA) [2011] HCA 20; (2011) 243 CLR 478; Olbers Co Ltd v Commonwealth [2004] FCA 229; (2004) 136 FCR 67, upheld on appeal at [2004] FCAFC 262; (2004) 143 FCR 449; Habib v Commonwealth [2010] FCAFC 12; (2010) 183 FCR 62, 66 [3] (Black CJ), 70-71 [21]-[22] (Perram J). Satisfaction in such a case is upon the balance of probability_,_ see Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430, 500 (Dixon J); Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521.

[65] Ibid 317 [33]. The plurality cited the following: A-G (Cth) v Alinta Ltd [2008] HCA 2; (2008) 233 CLR 542, 576 [90], 578-579 [96] (Hayne J), 594-595 [160] (Crennan and Kiefel JJ), citing Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140, 149 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ); Albarran v Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 231 CLR 350, 361 [28] (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ).

[66] Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656, 666; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 189-190; Albarran v Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 231 CLR 350, 361 [28]; A-G (Cth) v Alinta Ltd [2008] HCA 2; (2008) 233 CLR 542, 73-574 [82], 576 [90], 578-579 [96], 594-595 [160], 598 [171] (citation in original).

[67] Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; (2015) 255 CLR 352, 380 [63]-[64].

[71] [2011] NSWCA 38 ('Battle').

[72] [1977] 1 NSWLR 378 ('Hall').

[73] Battle [2011] NSWCA 38 [66].

[75] [2002] NSWSC 470; (2002) 191 ALR 759, 792 [125].

[76] Battle [2011] NSWCA 38 [66].

[79] Hall [1977] 1 NSWLR 378, 382.

[81] [1989] FCA 47; (1989) 25 FCR 283 ('Barnes').

[83] [2007] WASCA 190; (2007) 35 WAR 101 ('Rush').

[84] Ibid 115-6 [73]-[76] (Pullin JA), 125-6 [123]-[126] (Buss JA).

[86] [2012] QCA 300 ('Puryer').

[87] Ibid [35] (Holmes JA, with whom Gotterson JA and North J agreed).

[89] [2014] ACTSC 352.

[92] [2011] NSWCA 99 ('Lucire').

[93] [2011] NSWCA 353 ('King').

[94] Lucire [2011] NSWCA 99 [65]-[66].

[95] [2011] NSWCA 353.

[96] Health Care Complaints Commission v Dr Victor King [2011] NSWMT 5 [67].

[97] King [2011] NSWCA 353 [202].

[99] [2014] NSWSC 848 ('Bryant').

[104] [2005] SASC 478 ('Ardalich').

[105] (2014) 218 FCR 461.

[106] [2009] VCAT 1200.

[107] Ardalich [2005] SASC 478 [37]-[38].

[111] [2009] VCAT 1200.

[114] [2001] NSWCA 284; (2001) 52 NSWLR 279.

[115] [2004] HCA 1; (2004) 216 CLR 253.

[116] [1999] WASCA 115; (1999) 21 WAR 56 ('Kyle').

[117] [2008] QCA 301; [2009] 1 Qd R 149 ('Madden').

[118] [2014] VSC 185.

[119] See, eg, Simon v Legal Services Commissioner [2014] VSC 185 [21]-[22].

[120] [1999] WASCA 115; (1999) 21 WAR 56.

[124] [2008] QCA 301; [2009] 1 Qd R 149.

[128] [2013] VSCA 374, ('Stirling').

[133] [2011] VCAT 596 ('Frugtinet').

[134] [2013] VCAT 1736 ('Adamakis').

[137] Supreme Court Act 1958 s 14A; Kennedy v Shire of Campaspe [2015] VSCA 47 [13] (Whelan and Ferguson JJA).

[138] The majority takes the same view.

[139] See Pt 11 and 12 of the Legal Profession Uniform Law Application Act 2014.

[140] [1999] HCA 33; (1999) 198 CLR 73 ('Walsh').

[141] [2002] VSCA 204; (2002) 6 VR 642, 656 [38].

[142] [2008] QCA 301; [2009] 1 Qd R 149, 172 [75].

[143] [1999] HCA 33; (1999) 198 CLR 73, 94-97 [60]-[67] (footnotes omitted).

[144] See Victorian Civil and Administrative Tribunal Rules 1998, r 2.03.

[145] [1999] HCA 33; (1999) 198 CLR 73, 94 [60].

[146] Legal Profession Act 2004, s 4.4.8.

[148] Ibid s 4.4.13(3). Under s 4.4.13(2), the Commissioner must apply to the Tribunal for an order under Division 4 if the Commissioner is satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of professional misconduct.

[151] Victorian Civil and Administrative Tribunal Act 1998, s 127.

[152] [1938] HCA 34; (1938) 60 CLR 336.

[153] See E Nekvapil, Victorian Administrative Law [VCAT.98.250] (Standard of proof), and cases referred to therein, especially Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322; (2014) 45 VR 540 [26]; Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 306 ALR 125 [33]-[35]. See also, and compare, Kumar v Legal Services Commissioner [2015] NSWCA 161 [60] (Leeming JA).

[154] [2002] VSCA 204; (2002) 6 VR 642, 656 [38].

[155] [2008] QCA 301; [2009] 1 Qd R 149, 172 [75].

[158] Citing, by way of comparison, Ayles v The Queen [2008] HCA 6; (2008) 232 CLR 410, 432-3 [70]-[72] (Kiefel J, Gleeson CJ and Heydon J agreeing).

[159] [1999] HCA 33; (1999) 198 CLR 73, 95-6 [63]-[65].

[160] [2014] VSCA 322; (2014) 45 VR 540 [130] ('Kyriackou').

[161] [1988] VicRp 72; [1988] VR 757.

[162] [1988] VicRp 72; [1988] VR 757, 770. At the same time, this Court noted with apparent approval what Emerton J had done in Simon v Legal Services Commissioner [2014] VSC 185, namely set aside an order made by VCAT finding charges of professional misconduct in breach of the Act proved, which were not the charges brought against the legal practitioner.

[163] [1987] 1 WLR 564, 566 (HL).

[164] [1937] HCA 77; (1937) 59 CLR 467, 489 (Dixon J), 495 and 497 (Evatt J).

[165] [1963] UKHL 2; [1964] AC 40, 121 and 124-5.

[166] [1968] AC 391, 403-4 (PC).

[167] [1988] VicRp 72; [1988] VR 757, 768.

[168] [1983] 3 NSWLR 297, 307.

[169] [1940] AC 282.

[170] [1960] VicRp 96; [1960] VR 617.

[171] [1988] VicRp 72; [1988] VR 757, 770.

[172] G E Dal Pont, Lawyer's Professional Responsibility (2013, 5th ed) [23.55].

[173] Citing Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239, 251 (Deane, Dawson, Toohey and Gaudron JJ); Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256, 270 (Deane J); Carver v Law Society of New South Wales (1998) 43 NSWLR 71, 98 (Powell JA), 101 (Stein JA).

[174] Citing Romeo v Asher [1991] FCA 201; (1991) 29 FCR 343, 349 (Morling and Neaves JJ). This is said to be explicitly recognised by Legal Profession Act 2006 (ACT), s 417; Legal Profession Act 2004 (NSW), s 591, Legal Profession Act 2006 (NT), s 504; Legal Profession Act 2007 (Tas), s 460; Legal Profession Act 2008 (WA), 430(1).

[175] Citing Newfoundland Telephone Co v Board of Commissioners of Public Utilities [1992] 1 SCR (4th) 623, 638 (Cory J); Solicitor 'X' v Nova Scotia Barristers' Society (1999) 171 DLR (4th) 310, 318 (Roscoe JA) (CA(NS)).

[176] [2015] HCA 40; (2015) 256 CLR 326, 341 [55].

[177] This paragraph is cross-referred to specifically later in the application, in the particulars to the formal charges.

[178] The principally relevant parts of the statutory declaration are set out in the joint reasons.

[180] [2010] VSC 378 [57] (citation omitted).

[182] Citing Myers v Elman [1940] AC 282, 288-289 (Viscount Maugham), see also 319 (Lord Atkin). See also Re Hodgekiss (1959) 62 SR (NSW) 340, 351 (Hardie J); and Re a Solicitor [1960] VicRp 96; [1960] VR 617, 620 (Deane J).

[183] (2011) 33 VR 126 ('Brereton').

[184] Ibid [2]; see also Berger v Council of the Law Society of New South Wales [2013] NSWSC 1080 [24].

[185] (2011) 33 VR 126 [74].

[186] [1998] HCA 7; (1998) 192 CLR 493 ('Peters').

[187] Brereton (2011) 33 VR 126 [66].

[188] [2003] VSCA 133; (2004) 13 ANZ Ins Cas 51-605 (Chernov JA, with whom Callaway and Buchanan JJA agreed) ('Harle').

[189] Ibid 77-302 [30] (citations omitted).

[190] Brereton (2011) 33 VR 126 [66].

[191] The judgment of Bell J in Brereton v Legal Services Commissioner [2010] VSC 378, in this respect, has been followed several times by the Occupational Division of the Civil and Administrative Tribunal of New South Wales: see, eg, Council of the Law Society of New South Wales v Coombes [2015] NSWCATOD 108 [36]; Council of the Law Society of New South Wales v Carney [2016] NSWCATOD 103 [38]-[39]; Law Society of New South Wales v Shehadie [2016] NSWCATOD 46 [36].

[192] Cf Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56, especially at [6] and [10]-[11].

[196] In written submissions in the Trial Division, the Commissioner himself used the word 'concession' in this respect. The Commissioner also said later: 'As noted above, the Respondent conceded that the Applicant may have believed he had completed 2 years of supervised legal practice'.

[198] Mr Pham's written submission to the Trial Division in reply dated 10 September 2015 [97]-[109].

[199] [2008] QCA 301; [2009] 1 Qd R 149.

[200] [1999] WASCA 115; (1999) 21 WAR 56.

[202] Transcript of hearing before Bell J on 17 September 2015, 8.

[203] Transcript of hearing before VCAT on 17 July 2014, 126:24.

[204] Transcript of Proceeding before Bell J, 17 September 2015, 10.

[206] Mr Pham's outline of submissions in the Trial Division dated 13 April 2015, at [159] and at [170]-[177], esp at [174](sub-paragraph (4))-[177].

[207] [2011] NSWCA 38 ('Battle'), esp at [64]-[66], where several other relevant cases are referred to.

[208] [1992] HCA 36; (1992) 176 CLR 256.

[209] See Mr Pham's written submissions to the Trial Division in reply dated 10 September 2015, [202]-[206], esp at [206]. The point was made only by cross-reference to Mr Pham's earlier principal written submissions.

[210] [2011] NSWCA 38.

[211] [1977] 1 NSWLR 378.

[212] [2004] NSWCA 448; (2004) 52 ACSR 1 [418]-[425].

[213] [1981] 2 NSWLR 894.

[214] [2002] NSWSC 470.

[215] [1989] FCA 47; (1989) 25 FCR 283, 290-291.

[216] Battle [2011] NSWCA 38 [95].

[217] [2002] NSWSC 470; (2002) 191 ALR 759 [125] ('McClelland').

[218] [1989] FCA 47; (1989) 25 FCR 283, 290-291 ('Barnes').

[219] [2007] WASCA 190; (2007) 35 WAR 101 ('Rush').

[221] [2012] QCA 300 ('Puryer').

[223] [2008] QCA 301; [2009] 1 Qd R 149, 180 [89]-[91].

[224] [2014] ACTSC 352 [130].

[225] [2011] NSWCA 99 [65] (Basten JA) ('Lucire').

[226] [2011] NSWCA 353 ('King').

[228] (2004) 213 ALR 514 [417]-[427].

[229] [1977] 1 NSWLR 378.

[230] [2011] NSWCA 99 [65].

[231] [2014] NSWSC 848 [65] (emphasis added). See also Council of the Law Society of New South Wales v Liepins [No 2] [2015] NSWCATOD 133 [42]-[47] (M Chesterman, Principal Member).

[232] [2004] NSWCA 448; (2004) 52 ACSR 1.

[233] Again, this reservation is consistent with Mr Pham having actually held the belief that there would be a further hearing as to penalty, whatever may have been said orally by the Tribunal at the end of the hearing. I note that English is not Mr Pham's first language.

[235] See King [2011] NSWCA 353 [107] (Macfarlan JA, dissenting, but not this point).

[236] [2015] HCA 40; (2015) 256 CLR 326, 342-343 [60]. See also Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141.

[237] Citing WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511, 525 [58].

[238] See also Walsh [1999] HCA 33; (1999) 198 CLR 73, 101 [76]; Legal Services Commissioner v Madden [2008] QCA 301; [2009] 1 Qd R 149, 178 [82].

[239] Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 269 (Brennan, Dawson, Toohey and Gaudron JJ); Legal Practitioner v Council of the Law Society of the ACT [No 2] [2014] ACTSC 352 [152] (Murrell CJ); Kapoor v Monash University (2011) 4 VR 483 [51].

[240] King [2011] NSWCA 353 [208] (Handley AJA, with whom McColl JA agreed).

[241] Legal Services Commissioner v Madden [2008] QCA 301; [2009] 1 Qd R 149, 184 [113] and 178-180 [83]-[88]; Walsh [1999] HCA 33; (1999) 198 CLR 73, 98-99 [70] (McHugh, Kirby and Callinan JJ).

[242] See the observations of the trial judge (Bell J) in this connection: Reasons [20].