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[2015] VSC 697
General information, not legal advice.
Supreme Court of Victoria
2015-12-16
ZAMMIT J
Original judgment source is linked above.
JUDICIAL REVIEW - Legal practitioners - Professional misconduct by solicitor - Duty of candour - Application for leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT) - s 148 Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Application treated as hearing of appeal - Whether VCAT reasons were inadequate as failing to disclose path of reasoning - Failure to take relevant considerations into account - Acting beyond jurisdiction - Procedural fairness - Appeal dismissed.
1 By originating motion dated 4 December 2014 the plaintiff, Mr Matthew Harle ('Mr Harle'), seeks leave to appeal pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('the VCAT Act'), the following orders of VCAT ('the Tribunal') dated 10 September 2014 and 10 October 2014 by Senior Member Jonathan Smithers ('the Senior Member'):
(i) Mr Harle was found guilty of one charge of professional misconduct in the meaning of s 4.4.3(1) of the Legal Profession Act 2004 (Vic) being misconduct at common law.
(ii) The matter be listed for further hearing on a question of a penalty which should be imposed.
(i) Mr Harle may not apply for a practising certificate before 10 April 2015.
(ii) Mr Harle was to pay the Victorian Legal Services Commissions costs, in the agreed amount of $9,500.
2 If leave is granted, Mr Harle seeks, pursuant to s 148(7) of the VCAT Act, an order that the Tribunal's orders of 10 September 2014 and 10 October 2014 be set aside.
3 Mr Harle's amended draft notice of appeal ('Notice of Appeal') dated 25 March 2015, raises six questions of law with related grounds. The fifth question of law is not pursued. The questions of law in summary are as follows:
(a) That the Tribunal failed to provide proper reasons;
(b) That the Tribunal acted beyond its jurisdiction in that it made orders on a finding that Mr Harle intentionally created a misleading impression when there was no such charge or allegation;
(c) The Tribunal erred in finding Mr Harle's conduct amounted to professional misconduct at common law;
(d) The Tribunal erred in finding the words 'In 1976 I was admitted as a Certified Practicing Accountant and maintained such membership until 2008', in the plaintiff's affidavit created in a reader of the affidavit, in that context, a misleading impression; and
(e) The Tribunal failed to accord procedural fairness, in that it failed prior to making the findings that the words 'In 1976 I was admitted as a Certified Practicing Accountant and maintained such membership until 2008' created a misleading impression, to identify or require the defendant, the Victorian Legal Services Commissioner ('the Commissioner'), to identify the misleading impression said to have been created by Mr Harle's words and affidavits.
4 The Commissioner consents to the grant of leave of questions of law 1(a) to 1(d) inclusive but says that if such leave is granted, the appeal should be dismissed. The Commissioner otherwise opposes a grant of leave for the balance of the questions of law and associated grounds.
5 Mr Harle has been on the Roll of Practitioners since 1970 but has not held a practising certificate since 30 June 2004.
6 On 17 October 2008, the County Court found that Mr Harle had engaged in misleading or deceptive conduct and unconscionable conduct. On 21 October 2008, the Tribunal ordered him not to apply for a practising certificate prior to 1 July 2011, following a prosecution in respect of the events that were the subject of the County Court findings.
7 Mr Harle did not renew his membership of CPA Australia after 2008, in which year it lapsed and he ceased to be a CPA. On 17 July 2009, the disciplinary committee of CPA Australia determined that Mr Harle's membership of the body be forfeited until 1 July 2011, by virtue of the breach of cl 27(1)(g) of the body's constitution by being the subject of the County Court findings and VCAT findings which were 'an adverse finding that is final in relation to the member's conduct, competence, or recognition by any Court, professional body, statutory or other regulatory authority'.
8 The CPA's actions followed from the disciplinary action taken by the Commissioner.
9 The events which gave rise to the Tribunal's orders dated 10 September 2014 and 10 October 2014 are as follows:
(a) In 2010 Mr Harle became involved in a joint venture to exploit a process which had been discovered to recover energy enriched water from fruit. It was intended to produce and market a health drink called 'Aura Water';
(b) The vehicle for the joint venture was a company known as Botanical Water Holdings Pty Ltd ('BWH'). The venture failed and the participants fell out;
(c) Supreme Court proceedings, Re Botanical Holdings Pty Ltd [2013] VSC 96 ('Supreme Court proceeding'), were commenced by three parties associated with the inventor of the process, Dr Ambrosis Kambouris and his friend, Mr Andrew Moussi. The defendants were four parties associated with Mr Oman Abdou, Mr John Papadimitrou and Mr Harle. The fifth defendant was ASIC and the sixth defendant was BWH;
(d) Mr Harle was not a joint venturer. He was a director of the second defendant, Capital Ways and Solutions Pty Ltd, which had a 1% shareholding in the fifth defendant, the joint venture vehicle. Mr Harle therefore had an interest in the outcome of the Supreme Court proceeding;
(e) Affidavits were filed by a number of persons on behalf of the plaintiffs in the Supreme Court proceeding, including Dr Kambouris and Mr Greg Gregory, an accountant who had been involved in the administration of the joint venture entity. Mr Gregory was a registered ASIC agent, and this meant that he was able to lodge forms from his office to change the details of the company through an online portal run by ASIC. Affidavits in reply were filed in September 2011 by a number of individuals on behalf of the defendants, including Mr Harle. Dr Kambouris's affidavit included the statement that in or around March 2010 he was induced by Mr Abdou and Mr Harle to believe that the latter was a practising solicitor, such that Dr Kambouris believed Mr Harle was under a fiduciary duty to act in his best interests;
(f) Dr Kambouris's affidavit stated at paragraph [13]:
On the morning of 21 September 2010 I became aware of certain matters including:
(a) information provided to me by Abdou and Papadimitriou regarding the progress of the capital raising was false and they had no prospect of raising capital;
(b) Papadimitriou was an undischarged bankrupt and has failed to disclose this; and
(c) Matthew Harle was serving a current ban from acting as a legal practitioner because of previous professional misconduct;
(g) Mr Gregory's affidavit stated, amongst other things:
(i) at a meeting on 10 September 2010, Mr Abdou requested that Dr Kambouris be appointed as a director of BWH;
(ii) Mr Harle was a 'legal advisor' to Mr Abdou and Mr Papadimitriou, and he understood Mr Harle was a former solicitor who was no longer able to practise due to disciplinary proceedings;
(iii) on 21 September 2010 Mr Gregory lodged with ASIC a change of shareholding notice which had been given to him by Mr Harle at a meeting in Mr Gregory's office that day, having the effect of diluting Dr Kambouris's shareholding and that at the time Mr Gregory believed the notice to be authentic; and
(iv) Mr Gregory had not lodged the documents purporting to revoke the appointment of Dr Kambouris as a director of BWH. The implication was that this was done fraudulently on 21 September 2010, by a person in the defendant's camp, using Mr Gregory's computer to file the record with ASIC without his knowledge.
(h) Mr Harle's affidavit dated 22 September 2011, which was filed and served, stated that he read the affidavits of Mr Abdou, Mr Papadimitriou and Mr Marinopoulos, filed on behalf of the defendant and that he agreed with the contents of those affidavits. In effect he challenged the version of events deposed to in the affidavit by Dr Kambouris, Mr Moussi and Mr Gregory relating to meetings and decisions about shareholdings, directorships and other financial arrangements for the establishment of the business;
(i) the three paragraphs which form the basis of the Commissioner's case against Mr Harle are paragraphs [7] to [9]:
10 Mr Harle's affidavit directly contradicted Mr Gregory's affidavit. He stated he did not attend Mr Gregory's office on 21 September 2010 and therefore did not hand to Mr Gregory the minutes of a resolution changing the shareholding in BWH, as Mr Gregory had stated.
11 Mr Harle's affidavit was filed and served, however none of the parties tendered the affidavit and Mr Harle did not give evidence.
12 Shortly after the swearing of Mr Harle's affidavit, Mr Moussi complained to the Commissioner that paragraph [8] of Mr Harle's affidavit 'failed to disclose that [Mr Harle's] CPA membership was forfeited on 17 June 2009 until 1 July 2011, due to disciplinary action being taken by CPA Australia'.
13 In relation to the Supreme Court's findings, the outcome was the plaintiff succeeded in their first application, in that they obtained an order for a declaration to the effect that the shareholding was as originally established, that is, without Dr Kambouris' interest being diluted. The plaintiffs failed in their second application, which was to reinstate Dr Kambouris as a director of BWH.
14 Justice Robson, in his decision, made adverse findings about the credit and conduct of the participants. His Honour referred to 'the apparent improper behaviour by all parties in establishing the joint venture'.[1] His Honour also said, amongst other things, that he did not have confidence in the evidence of Mr Abdou, Dr Kambouris or Mr Moussi. Further, he noted Mr Papadimitriou was an undischarged bankrupt and the Mr Harle had been prevented from holding a practising certificate.[2]
15 Following an investigation into the complaint by Mr Moussi about Mr Harle's affidavit and, in particular, paragraph [8] of the affidavit, Mr Harle was charged with having engaged in professional misconduct at common law. The Commissioner's charge was framed as follows:
The Respondent is guilty of professional misconduct within the meaning of s 4.4.3(1) of the [Legal Profession Act 2004], in that his conduct on or about 22 September 2011 in settling, approving and swearing an affidavit in circumstances where he:
(a) knew and intended that it would be filed and served in a Supreme Court proceeding in which he was personally involved; and
(b) knew that its contents did not set out the whole truth concerning the relevant history of:
(i) his entitlement to apply for a practising certificate, particularly as at 21 September 2010; and/or
(ii) his entitlement to practise as a CPA,
and thereby created a false or misleading impression as to the true state of facts,
was conduct that lawyers of good repute and competency would regard as dishonourable and disgraceful, and thereby constituted misconduct at common law.
16 The charge relied on particulars filed by the Commissioner at the Tribunal in proceeding number J57 of 2014. Relevantly particulars 26 to 27 and 33 to 34 stated:
26 In the premises, paragraphs 7, 8 and 9 of the Harle affidavit:
(a) contradicted the sworn evidence of Dr Kambouris and Mr Gregory concerning their knowledge of the Respondent's right to practice as a legal practitioner, by representing that:
(i) he had at all relevant times been "free" to apply for a practising certificate; and/or
(ii) his right to practice had not been impeded by disciplinary proceedings;
(b) drew a distinction between the respondent's prior qualification as a CPA, and Mr Gregory's absence of any such qualification; and
(c) were directly relevant to the credit of Dr Kambouris and Mr Gregory as witnesses for the plaintiffs in the Proceeding.
(a) knew and intended that it would be filed and served in the Proceeding; and
(b) knew that paragraphs 7, 8 and 9 did not set out the whole truth concerning the relevant history of:
(i) his entitlement to apply for a practising certificate, particularly as at 21 September 2010; and/or
(ii) his entitlement to practise as a CPA,
and thereby created a false or misleading impression as to the true state of facts.
...
2.1 That you were banned from working as a solicitor from 25 October 2008 until 1 July 2011.
2.2 That your CPA membership was forfeited on 17 June 2009 until 1 July 2011.
2.1 We are instructed that the answer to this question is "no". Our client advised that he was no longer practising as a solicitor although he could apply for a return of his practising certificate.
2.2 No.
The Tribunal's Reasons dated 10 September 2014 and 10 October 2014
17 It is convenient to set out in some detail the salient paragraphs of the Senior Member's reasons dated 10 September 2014 ('the 10 September 2014 Reasons'). The Senior Member stated:
18 At paragraph [7] of the 10 September 2014 Reasons, the Senior Member set out the charge and subsequently set out the facts relating to the Supreme Court proceeding, including the various affidavits relied upon by the parties and most importantly paragraphs [7] to [9] of Mr Harle's affidavit. The Senior Member set out the Supreme Court's findings and identified at paragraph [21] the Commissioner's key contentions as set out in paragraph [26] of the application for order. Most relevant to this appeal are paragraphs [34] to [45] of the 10 September 2014 Reasons, which I will set out in full.
A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the Court and thereby breach his or her duty to the Court.
Misleading the Court by presenting a misleading or false document is contrary to the lawyer's duty of honesty and candour, including in his or her capacity as a litigant
19 In relation to the Tribunal's decision and reasons on penalty, the Tribunal gave its reasons orally at the conclusion of the hearing on 10 October 2014 ('the 10 October 2014 Reasons'). A request for written reasons was received and the Tribunal provided reasons for its decision. At the commencement of the 10 October 2014 the Senior Member noted that the reasons provided for the orders made on 10 October 2014 were an edited version of the Tribunal's oral reasons for decision and that it should be read in conjunction with the Tribunal's decision of 10 September 2014. Particularly, it was noted that the nature of the conduct that Mr Harle was found to have engaged in and the circumstances in which it occurred were fully set out in the 10 September 2014 Reasons.[5]
Principles relevant to leave to appeal from the Tribunal
21 The approach to the question of whether leave to appeal should be granted under s 148(1) of the VCAT Act was set out comprehensively in Secretary to the Department of Premier and Cabinet v Hulls.[7] That approach was conveniently summarised by Warren CJ in Myers v Medical Practitioners Board of Victoria[8] as follows:
22 In this case, as noted, the Commissioner consents to the grant of a leave of appeal on questions of law in relation to questions of law 1(a)-(d) but opposes the grant of leave in relation to the remaining questions of law and associated grounds.
23 The Commissioner submits in any event that the Tribunal's decision is not affected by any real or significant error.
24 In The Sisters Wind Farm Pty Ltd v Moyne Shire Council,[10] Emerton J concisely described the Tribunal's task as follows:
It is trite law that in exercising its review jurisdiction, the Tribunal does not review the propriety or legality of the decision made by the initial decision-maker. Its task is to 'stand in the shoes' of the original decision-maker and make the correct or preferable decision, having regard to the material before it. The review therefore takes place without any presumption as to the correctness of the decision under review. It is carried out on the basis of the facts and the law at the time the review decision is made.[11]
Question of Law 1 - The Tribunal failed to give adequate reasons
25 Mr Warne, counsel for Mr Harle, submitted that the Tribunal made an error of law by giving inadequate reasons because a clear path of reasoning was not provided.[12] Particularly, Mr Warne argued that it was unclear how the Senior Member found that Mr Harle's affidavit created a misleading impression.[13]
26 With regard to the 10 September 2014 Reasons, Mr Harle submitted that the Tribunal's reasons did not disclose a finding of dishonesty or intentional wrongdoing on the part of Mr Harle, that it was not clear what the 'misleading representation' was and that there was no finding 'of any positive misunderstanding engendered by the non-disclosure'.[14]
27 With regard to the 10 October 2014 Reasons, Mr Harle submitted that there was a factual misunderstanding of the nature of Mr Harle's CPA membership and the circumstances in which he relinquished it.[15] Counsel for Mr Harle contended that 'there was a complete absence of reasoning' as to why Mr Harle's evidence was not accepted and the Commissioner's case should be preferred.[16]
28 Counsel for Mr Harle submitted that the lack of reasons as to Mr Harle's state of mind in relation to the misleading impression, and in particular why the Commissioner's evidence was preferred to Mr Harle's, was contrary to the Tribunal's obligations.[17] It was submitted that such a failure by the Tribunal gave rise to uncertainty of reasoning such as to constitute a miscarriage of justice.[18]
29 Ms Hannon, counsel for the Commissioner, submitted that the Tribunal's reasons, when read in their entirety, sufficiently expose the path of reasoning that led to its conclusion that Mr Harle had breached his duty of candour and was guilty of misconduct at common law.[19] Ms Hannon argued that 'the absence by dot [sic] fulsome reasons...does not of itself give rise to any error of law'.[20]
30 Counsel for the Commissioner went on to say that it is not enough to show that the Senior Member's reasons were 'expressed so as to suggest the possibility that they proceeded on the wrong view of the law', instead, Ms Hannon contended that the Court must be satisfied that an error occurred, and that that error is material to the ultimate outcome. It was submitted by counsel for the Commissioner that the Court could not be satisfied that an error occurred given that the Senior Member's reasons indicate that he turned his mind to the issue of whether Mr Harle knew what he was doing when he swore his affidavit, and that he was satisfied that he did.[21] Ms Hannon argued that the Court can be satisfied that the Tribunal's decision found that Mr Harle's conduct was intentional, based on the evidence.[22]
31 Under s 117 of the VCAT Act, the Tribunal is required to give reasons for any order it makes in a proceeding (other than an interim order) within 60 days of making the order. Further, where written reasons are given by the Tribunal, findings on material questions of fact must be included within those reasons.
32 There are a number of authorities which demonstrate that there is an obligation on a judge to provide reasons for a judgment.[23] The authorities have also explored the question of the standard of reasons which are expected. The standard of reasons required of decision-makers 'can vary markedly with the context'.[24]
33 However, adequate reasons must establish a clear path of reasoning which led the decision-maker to the conclusion reached, and that the decision-maker gave adequate reasons in respect of each of the substantial issues raised for determination. Where there is a conflict as to the evidence, this would require the decision-maker to give reasons for preferring one version of the evidence over another.[25]
34 It was observed in Brittingham v Williams ('Brittingham')[26] that 'a case may turn entirely upon a finding in relation to a single and simple question of fact, or be so conducted that the reason or reasons for the decision is or are obvious to any intelligent person...'.[27] Brittingham was cited with approval by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd ('Soulemezis'),[28] where it was stated that:
... where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary 'for him to go further and say, for example, that the reason was based on demeanour' ... The position will usually be different if other evidence and probabilities are involved. A superior court, considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding.[29]
35 McHugh J went on to observe in Soulemezis that when reasons are required, a decision-maker must provide the outline and factual basis behind the reasoning upon which he or she has acted, so as to apprise the parties of why the decision was made. This need not be lengthy or elaborate reasons, but rather just the articulation of the essential ground or grounds upon which the decision was made.[30]
36 McHugh J's observations were cited with approval in Ta v Thompson,[31] where the Court of Appeal observed that a decision-maker's 'obligation extended to identifying the grounds or basis of her decision in the same way as such an obligation is regarded as a necessary corollary to a right of appeal on questions of law'.[32] The Court of Appeal also noted that, where a decision turns in part upon a witness' testimony, a decision-maker is only required to provide a summary statement in explaining why he or she has not been persuaded by that witness.[33]
37 In Opeka Pty Ltd v Mackie Group Pty Ltd ('Opeka'),[34] Nettle J stated that the extent of the reasons required in a case would vary depending upon the simplicity or context of the case. As to the relevant test to apply to determine whether a decision-maker had erred in law by failing to state their reasons adequately, Nettle J framed the test in the following terms:
Want of reasons may amount to an error of law where the absence of reasons would frustrate a right of appeal. That would occur if the appellate court is unable to ascertain the reasoning upon which the decision is based. Whether reasons are inadequate in this sense will depend upon the nature of the decision and the circumstances of the case.[35]
38 Counsel for Mr Harle also raised the case of Giudice v Legal Profession Complaints Committee ('Giudice').[36] Giudice involved a legal practitioner appealing against a finding of guilt in relation to unsatisfactory conduct under the Legal Profession Act 2008 (WA). At first instance, the legal practitioner had been found guilty of causing an affidavit to be prepared by his client under his supervision which contained a false statement with reckless disregard as to the truth or falsity of the statement. An appeal was made to the Court of Appeal of Western Australia where it was found that there was an error of law in that there was no express finding as to the practitioner's state of mind. The Court observed that the issue of the practitioner's state of mind was one which the Tribunal was required to address. However it was also noted that a finding on such a point may be implicit in the Tribunal's reasons.[37]
39 By providing the 10 September 2014 Reasons, which contained its findings on material questions of fact, and also the 10 October 2014 Reasons, the Tribunal complied with the requirement for providing reasons under s 117 of the VCAT Act.
40 In his discussion of Mr Harle's status as a CPA, the Senior Member states that paragraph [8] of Mr Harle's affidavit created a misleading impression through the distinction between Mr Harle's (prior) qualification as a CPA and Mr Gregory's absence of such a qualification.[38] The Senior Member stated that the purpose of the affidavit was to contradict Mr Gregory's version of events and suggest that as a longstanding CPA, Mr Harle was a more credible witness than Mr Gregory.[39] In these circumstances, the Senior Member found that to omit any reference to disciplinary action taken against him by CPA Australia and forfeiture of his membership in June 2009, created a misleading impression.[40] The Senior Member highlighted that there was no reference in Mr Harle's affidavits that he was restricted to practise as a CPA and that the impression left was he had been a CPA for 32 years, while on the other hand Mr Gregory had never been a member of any of the three accountant registration bodies recognised by statute in Australia.[41] The Senior Member goes on to say that had a reader of the affidavit been alerted to the fact that Mr Harle had forfeited his CPA membership due to disciplinary proceedings relating to misleading or deceptive conduct, the impression of his credibility in contrast to Mr Gregory would have been quite different.[42]
41 At paragraph [25] of the 10 September 2014 Reasons, the Senior Member rejects Mr Harle's attempt to place some responsibility for the drafting of the affidavit on his solicitor on the basis that Mr Harle would have been aware that when swearing an affidavit, he has a responsibility to ensure it is correct.[43]
42 Implicit in this analysis by the Senior Member, is the observation that Mr Harle did not tell the whole truth and omitted further details of his CPA membership in order to discredit Mr Gregory as a witness by creating a misleading impression that he held a CPA qualification in contrast to Mr Gregory. On this basis, the Senior Member found that Mr Harle's affidavit created a misleading impression due to the fact that the disciplinary action by CPA Australia 'would have been highly relevant to the impression created'.[44] The Senior Member went on to say: 'It is a different professional organisation to those involved in the registration and disciplining of lawyers, and the fact that it chose (or was required) to take its own separate disciplinary action against Mr Harle as an accountant was significant in itself'.[45]
43 This path of reasoning provided by the Senior Member clearly indicates why Mr Harle's evidence was not accepted due to his credibility being in question as a result of the omission of his forfeiture of his CPA membership and the related disciplinary action. Furthermore, the 10 September 2014 Reasons imply that Mr Harle's omission was intentional given his understanding of the significance of swearing an affidavit and the deliberate creation of the misleading impression.
44 The 10 September 2014 and 10 October 2014 Reasons complied with the Tribunal's obligation to consider and give adequate reasons in determining each of the substantial issues raised for determination, and its obligation to give reasons as to why it accepted the evidence that Mr Harle had created a misleading impression in his affidavit.
45 I do not find that there is a real or significant risk to be put that an error of law exists. I therefore refuse to grant leave to appeal in respect of questions of law 1(a) to (e). Even if leave was granted, I am not satisfied that there was an error of law.
46 In summary it is submitted on behalf of Mr Harle that there was no allegation in the charge that Mr Harle intended to make a false statement or that he was reckless as to the truth of his affidavit. It is submitted that there was no allegation that he knew that paragraphs [7] to [8] of his affidavit did not set out the whole truth concerning his entitlement to practise as a CPA, and therefore created a false and misleading impression as to the true state of facts.
47 Mr Harle submits that in the absence of a clear assertion of intentionally misleading in the charge, it was not open to the Tribunal to make a finding of dishonesty. The fact that it was put in submissions (though not cross-examination) that Mr Harle had deliberately misled the administration of justice is insufficient to overcome this problem, particularly in circumstances where the misleading impressions he allegedly generated were never identified to him.
48 In essence, Mr Harle asserts that he has been found guilty of an offence with which he was not charged. The Commissioner agrees that if it were the case, that Mr Harle has been found guilty of an offence with which he was not charged, it would constitute an error of law and consequently a vitiating error.
49 The Commissioner submits that in this case the words of the charge set out the allegations in full, including that Mr Harle knowingly made a false and misleading statement. That is, it is expressly alleged that Mr Harle knew that paragraphs [7] to [8] of his affidavit did not set out the whole truth concerning the relevant history of his entitlement to practise as a CPA, and thereby created a false and misleading impression as to the true state of facts on this issue.
50 The wording of the charge was expressly directed to two acts by Mr Harle. The first was to approve an affidavit to be sworn by him in a particular form. The second was swearing the affidavit in that form.
51 The charge explicitly stated that when Mr Harle did each of the two acts, he did so with a particular state of mind. The charge states Mr Harle knew and intended that the affidavit would be filed and served in the Supreme Court proceedings and that he was personally involved. The charge goes on to state expressly, that Mr Harle knew that the content of the affidavits did not set out, amongst other things, the whole truth concerning the relevant history and his entitlement to practise as a CPA. Finally, the charge by reference to Mr Harle's state of mind on both of these matters, states that, in doing so, Mr Harle created a false and misleading impression as to the true state of facts.
52 I do not consider there was anything equivocal about the nature of the charge Mr Harle was facing. Mr Harle's state of mind at the time the affidavit was sworn was put expressly in issue by the wording of the charge. This is not a case where Mr Harle came to the Tribunal and found himself facing allegations or a charge that had not been expressly drafted and provided to him. There was no issue raised by Mr Harle's counsel at the Tribunal that the charge Mr Harle was facing was not that contained within the appropriate charge documentation. Even if there was some ambiguity in the language of the charge, which I do not accept, the Court was taken to a letter from the Commissioner to Mr Harle dated 28 November 2013. The letter deals with a number of matters, importantly paragraphs [7], [8] and [9] of the affidavit and Mr Harle describing himself as a CPA. The letter states:
24 ... Further, paragraph [8] of the Affidavit did not draw to the attention of the Court the fact that although your CPA membership may have 'lapsed' in 2008, the disciplinary committee of CPA Australia still regarded you as a 'member' and on 17 June 2009 it had imposed a serious penalty in relation to your future right to describe yourself as a CPA, by forfeiting your membership until 1 July 2011. It seems to me that your purpose in including paragraph [8] can only have been to undermine Mr Gregory's accounting qualifications (compared with yours) and, thereby, his credibility as a witness (when compared to you). It must have been obvious to you the fact that CPA Australia had seen fit to forfeit your membership was a matter of direct relevance to the Court in considering your credibility as a witness when compared to Mr Gregory. ...
27 I am concerned in these circumstances that the Tribunal would conclude that you not only misled the Court through your paragraphs [7], [8] and [9], but that you did so deliberately or intentionally, knowing that your Affidavit as sworn by you did not disclose the whole truth of the matters there disposed to.[46]
53 I do not accept that Mr Harle was not charged with the offence he was found guilty of.
54 Mr Harle submitted that alternative forms of wording should have been used in the drafting of the charge. These are contained at paragraphs [4] and [6] of Mr Harle's written submissions in reply dated 26 October 2015. While drafting can always be improved with the benefit of hindsight, I do not consider that the alternate forms of the charge add anything to the charge or clarification of the nature of the charge. I do not accept that there is an error of grammar creating confusion about the nature of the charge.
55 I do not consider leave should be granted to question of law 2 and the associated grounds and even if leave was granted, I do not consider there has been an error of law.
Question of Law 3 - Mr Harle's conduct not professional misconduct at common law and the failure to take relevant considerations into account
56 Mr Harle submits, that if the Tribunal made a finding of fraud or an intention to create a misleading impression, that it was an instance of non-fraudulent misleading conduct, which does not satisfy the requisite level for a finding of misconduct at common law.
57 In effect, question of law 3 and the associated grounds go to the issue of whether the Tribunal found that Mr Harle's conduct was intentional. As I have already considered in relation to question of law 1, I am of the opinion that the Tribunal found that Mr Harle's conduct was intentional. Counsel for Mr Harle submitted in oral submissions that what Mr Harle was charged with and found guilty of did not constitute professional misconduct at common law. In written submissions, Mr Harle asserts that there are reasons why his conduct may be distinguished from the kind of conduct, otherwise than in the course of legal practice, which has been found to be professional misconduct at common law.
58 The Commissioner's case before the Tribunal was that the swearing of an affidavit for a court proceeding, knowing that it did not disclose the whole truth on a relevant matter, was misleading in respect of that matter and is conduct capable of constituting professional misconduct at common law. The Tribunal was satisfied that Mr Harle's conduct represented a clear breach of duty of candour owed by legal practitioners to the Court. At paragraph [39] of the 10 September 2014 Reasons the Tribunal considered the Court of Appeal decision of Forster v Legal Services Board ('Forster')[47]:
39 In Forster v Legal Services Board Kyrou AJA, Weinberg and Harper JJA (agreeing) said:
A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the Court and thereby breach his or her duty to the Court. ...
43 I find Mr Harle's affidavit did create a misleading impression as to the true state of facts. In Forster, Kyrou AJA said:
Misleading the Court by presenting a misleading or false document is contrary to the lawyer's duty of honesty and candour, including in his or her capacity as a litigant.[48]
44 I find this was the conduct that lawyers of good repute and competency would regard as dishonourable or disgraceful. That is, it constitutes professional misconduct under the long accepted test.
59 The Commissioner submits that the Court can also be satisfied with the Tribunal's decision that the charge proved was predicated on a finding that Mr Harle's conduct was intentional, as alleged, even where that is not expressly stated in those terms for the following reasons:
(a) the case was expressly opened by the Commissioner on the basis the conduct was intentional;[49]
(b) the Commissioner's case on intention was advanced principally in the opening on the basis of:
(i) the undisputed fact that Mr Harle, an officer of the Court read and approved the form and observed the solemnity of saying on his oath that its contents were true and correct;[50]
(ii) the fact that inference could be drawn from documents annexed to the Application, namely:
(A) Tab J, correspondence from Mr Harle to the LIV dated 9 January 2012 (T 20, L 7 to T 21, L 9);
(B) Tabs K and L, correspondence from the LIV to Mr Harle dated 23 January 2012, and the response from Mr Harle's solicitors, Davies Maloney dated 23 May 2012 (T 21, L 10 to T 22, L 17).
(d) The Commissioner's case was expressly closed on the basis that the conduct was intentional. Moreover, all of the authorities to which the Tribunal has taken into consideration in the liability hearing relied on intentional conduct as a key element of impugned conduct;
(e) Counsel for Mr Harle expressly made submissions on the issue of intention, and was asked questions by the Tribunal consequent upon those submissions;[53]
(f) The Tribunal was satisfied that the duty of candour owed by Mr Harle to the Court had been breached,[54] and that could only have occurred (on the basis of the charges drawn) if the Tribunal was satisfied that Mr Harle knew that his affidavit did not set out the whole truth on the CPA matter and that it was thereby misleading as to the true state of facts. The conclusion reached by the Tribunal on that issue was reasonably open to it on the facts in evidence;
(g) At the subsequent penalty hearing the Commissioner made submissions based on a finding that the conduct was intentional, and took the Tribunal to authorities as to penalties which exclusively refer to intentional conduct. No objection was raised by Mr Harle's counsel to this course; and
(h) Indeed there can be little doubt that the penalty orders were made in respect of Mr Harle on the basis that his conduct was intentional. And that was because the Tribunal had already concluded that the charges made out on the basis of Mr Harle's intentional conduct.[55]
60 On the basis of the 10 September 2014 and 10 October 2014 Reasons, and the additional matters set out in paragraph [10] of the Commissioner's Outline of Submissions, I am of the opinion that there was a finding that Mr Harle intended to create a misleading impression and as such his conduct amounted to professional misconduct at common law.
61 For completeness, the oral and written submissions on behalf of Mr Harle examined various cases concerning misconduct at common law. It was submitted in essence that Mr Harle's conduct did not amount to misconduct at common law.
62 I will not traverse the case law which was relied upon by the parties as I do not consider it necessary, given the Senior Member's reliance on Forster.[56] In Forster, Kyrou AJA set out the elements of a legal practitioner's duty of honesty and candour to the Court. His Honour said:
160 Before considering the above grounds, it is necessary to briefly outline the elements of a legal practitioner's duty of honesty and candour to the Court that underlie some of the grounds.
161 In Meek v Fleming, Holroyd Pearce LJ agreed with the proposition that while a lawyer must not knowingly mislead the Court as to the facts or the law, he or she may put such matters as he or she believes will best advance the client's case. A party need not reveal something to the discredit of that party. However, this does not mean that the party can by implication falsely pretend that a particular state of affairs exists, and knowing that the court has been misled with respect to a material matter, foster and confirm the misrepresentation through answers given by the party. A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the Court and thereby breach his or her duty to the Court. Once a misleading impression has been created, even if innocently, the lawyer has an obligation to correct that impression as soon as he or she becomes aware of the true position. That obligation continues until judgment is given.
162 Misleading the Court by presenting a misleading or false document is contrary to the lawyer's duty of honesty and candour, including in his or her capacity as a litigant. In Law Society of New South Wales v Foreman, the New South Wales Court of Appeal ordered that the respondent be removed from the Roll of practitioners, because she had knowingly presented a falsified document to the Court on the basis that it was genuine. Mahoney JA stated that:
A practitioner must not merely not deceive the court before which she practises; she must be fully frank in what she does before it. This obligation takes precedence over the practitioner's duty to her client, to other practitioners and to herself: Meek v Fleming [1961] 2 QB 366 at 382, 383. The justice system will not work if a practitioner is, for her own purposes, free to put to the court that which she knows to be false.[57]
63 The Commissioner's case before the Tribunal was that Mr Harle knowingly told a half truth or put another way, did not tell the whole truth and that such conduct was misleading. The Tribunal accepted that the fact that Mr Harle swore an affidavit in his personal capacity was irrelevant to the question of whether he breached his duty of candour. This is consistent with the principles set out by Kyrou AJA in Forster's case. I am satisfied that the Senior Member understood the scope and importance of the duty of honesty and candour to the Court and that he correctly applied those principles to the facts as found by him.
64 Question of law 3(b) asserts that the Tribunal fell into error by failing to take into relevant consideration a number of matters, namely:
(b) that the fact of the mid-2009 purported forfeiting of Mr Harle's membership of CPA was inadmissible in evidence-in-chief as being relevant only to credit;
(c) Mr Harle was a witness and not a party to the proceeding;
(d) that the affidavit was prepared by the solicitor for all the defendants, for the purposes of all of the defendants, of which Mr Harle was a director of only one, and was specifically not alleged to be settled by Mr Harle; and
(e) that Mr Harle was, as was well known to all readers of the evidence of the case as a whole, at the time of his affidavit, not a practising lawyer.
65 The Commissioner's charge was expressly confined to the act of proving and swearing the affidavit in a particular form, knowing that it would be filed and served, which it was. The Commissioner did not rely on the tender of the affidavit or its admissibility.
66 The Tribunal was aware and did take into account that Mr Harle was a lay witness.[58] At paragraph [10] of the 10 September 2014 Reasons, Mr Harle's role in the Supreme Court proceeding was set out in detail and this was not contested by Mr Harle. The Tribunal noted that the affidavit was prepared by a solicitor for Mr Harle and that it was not settled by Mr Harle.[59]
67 It was noted by the Tribunal at paragraph [13] of the 10 September 2014 Reasons that:
13 Mr Gregory's affidavit stated:
Mr Harle was a 'legal advisor' to Mr Abdou and Mr Papadamitrou, and he understood Mr Harle was a former solicitor who was no longer able to practise due to disciplinary proceedings. (In actual fact, the position was that Mr Harle was barred from holding a Practicing Certificate in September 2010, this prohibition expired on 1 July 2011, so he was not barred as at 29 August 2011, when Mr Gregory's affidavit was sworn).[60]
68 In the circumstances, I do not consider that there has been an error of law in relation to question of law 3(a) and (b).
(a) that he had been a CPA for 32 years and as such his word should be accepted over that of Mr Gregory as found at [38] of the 10 September 2014 reasons (since he had been a CPA for 32 years, and the impression that his word should be accepted over that of Mr Gregory was not an impression that arose from the affidavit, but a submission to be made by the defendants' counsel, and which, if not made, would never arise, as it turned out not to, since the affidavit was never read);
(b) that he had relinquished his membership of CPA Australia, in effect, after a long period without blemish as found at [3] of the 10 October 2014 reasons (since that impression simply did not arise from the proper construction of the affidavit which was entirely neutral in relation to blemishes during his period of membership, and since, even if it did, there was no evidence that the true state of facts was anything other than that Mr Harle did relinquish his membership after a long period effectively without blemish, as far as CPA Australia was concerned).
70 Counsel for Mr Harle submits that paragraph [8] of Mr Harle's affidavit, which included the sentence 'in 1976 I was admitted as a Certified Practising Accountant and maintained such membership until 2008', was not misleading. Counsel for Mr Harle submits that it was an error of law for the Tribunal to find that the words were misleading and accordingly contrary to a legal practitioner's duty of candour to the courts.[61]
71 Although the CPA forfeited Mr Harle's membership in mid-2009, Mr Harle's contention is that such a fact did not render his statement in his affidavit that he was a CPA member until 2008 untrue or misleading.[62]
72 Counsel for Mr Harle submits that there is no duty of candour for legal practitioners in relation to the administration of justice. Rather, r. 14.01 of the Professional Conduct and Practice Rules 2005 ('the Rules') was identified as being the relevant duty, which states:
A practitioner must not knowingly make a misleading statement to a court.
73 Mr Harle seeks to draw a comparison with r. 14.10 of the Rules:
A practitioner will not have made a misleading statement to a court simply by failing to disclose facts known to the practitioner concerning the client's character or past, when the practitioner makes other statements concerning those matters to the court, and those statements are not themselves misleading.
74 It is submitted that the present scenario was analogous to such circumstances, except that Mr Harle was not acting on behalf of a client, but was rather acting in his personal capacity. Mr Harle's contention is that there was nothing misleading in his statement that he was a member of the CPA from 1976 to 2008, and that it is a truthful statement. Further, there was no statement made as to the reasoning behind Mr Harle's relinquishing of the membership in 2008, nor about his entitlement to practise as a CPA after 2009.[63] Rather than being a misstatement or a half-truth, it was submitted by Mr Harle's counsel that it was a mere failure to volunteer evidence.[64]
75 Further, counsel for Mr Harle submits that as Mr Harle was not acting on behalf of a client but rather as a lay witness, and indeed did not even have a practising certificate, that the applicable duty of candour could not extend to volunteering adverse information about credit unless that which was not volunteered made the statement positively misleading. [65]
76 The Commissioner replies that Mr Harle's obligations in swearing his affidavit were exactly the same as those which would have been imposed upon him had he been acting on behalf of a client in similar circumstances. In either case, an obligation existed to not knowingly allow an affidavit to be sworn, filed and served which did not depose to the whole truth on a relevant matter.[66] The Commissioner also notes that the reference to the Rules is unhelpful in the circumstances as Mr Harle was charged with professional misconduct at common law.
77 The Commissioner opposes the grant of leave to appeal on question of law 4 on the basis that it misdescribes the findings of the Tribunal, and that the asserted error raised only an error of fact, so that there was no real or significant argument made of an error of law.[67] Particularly, the Commissioner argued there were four grounds on which this question of law must fail:
(a) It proceeds from an erroneous premise as to the words deposed to in the affidavit upon which the Tribunal made its findings.
(b) It seeks to focus on a single sentence contained in the reasons on liability, without regard to the context expressed in those reasons.
(c) It examines only the last line of the charge proved, without regard to the formulation of the charge as a whole.
(d) It wrongly seeks to elevate matters set out in summary in the Tribunal's subsequent reasons on penalty as evidencing an appellable finding on matters of liability already determined. [68]
78 The Commissioner submits that the Tribunal's findings were based upon a reading of paragraph [8] of Mr Harle's affidavit as a whole, including the distinction that was drawn between Mr Harle's qualifications in respect of accounting, and Mr Gregory's lack thereof. It was further submitted that the 10 September 2014 Reasons at [34]-[42] needed to be read in their entirety, rather than selectively. The 10 September 2014 Reasons in their entirety demonstrated not only that Mr Harle was drawing a distinction in his and Mr Gregory's qualifications for credit purposes, but also that paragraph [8], unlike the rest of the affidavit, was not responsive to any other affidavit material, and therefore left a reader reliant on what Mr Harle had volunteered in that regard.[69]
79 The Commissioner submits that the particulars of the charge, particularly at paragraphs [24]-[27], expressly identified the basis on which it was contended that paragraph [8] of Mr Harle's affidavit did not amount to the whole truth in relation to his entitlement to practise as a CPA. The Commissioner submits that Mr Harle's knowledge of this, and that the affidavit would be filed and served, created the false and misleading impression. [70]
80 The Tribunal found that, as a matter of fact, Mr Harle's affidavit, in seeking to make a positive statement on oath in respect of his CPA credentials to suggest he was a more credible witness than Mr Gregory, did not amount to the whole truth. The omission of any reference to disciplinary action taken against Mr Harle by the CPA, in the Tribunal's mind, gave rise to a misleading impression as to the true state of the facts. The Commissioner submits that this was the finding upon which the Tribunal proceeded, and it was a finding of fact which was reasonably open to it.[71]
81 Further, as to question of law 4(b), the Commissioner submits that it seeks to raise issues with the Tribunal's 10 October 2014 finding on liability. The Commissioner argues that the only relevant finding was that of the original finding dated 10 September 2014, with the subsequent penalty finding being made ex tempore and not being intended to interfere with, or replace, the findings of fact of 10 September 2014. Further, the Commissioner submits that the penalty order finding makes express reference to the fact that the nature of the conduct Mr Harle was found to have engaged in and the circumstances in which it occurred were fully set out in the original finding dated 10 September 2014. The findings within the subsequent penalty order were an attempt by the Senior Member to encapsulate the substance of the original finding.[72]
82 As a result, and on the basis of the reasons provided by the Tribunal, the Commissioner submits that there is no real or significant argument that there was an error of law.
83 The parties are confined to relying on the legal authorities which were relied upon at the original Tribunal proceeding before the Senior Member. Further, the present matter was limited to an appeal on questions of law arising from the decision of the Senior Member.
84 There was little contention between the parties as to what the authorities such as Forster, Piva, Kye, Coe and Thom stood for, and which have been discussed earlier. Where disagreement did arise was in respect of their applicability to the present matter.
85 In respect of the present question of law, the authority of Forster is particularly persuasive and stands as good law. That is, to mislead a court by presenting a misleading or false document is contrary to a lawyer's duty of honesty and candour. This can occur in either a lawyer's capacity as a legal practitioner, or in his or her personal capacity as a litigant.[73]
86 Although a great deal of time was spent by counsel in exploring the factual scenarios of the respective authorities, I am satisfied that the above principle is applicable in this case.
87 Therefore, the relevant question to consider is, did Mr Harle's affidavit at paragraph [8] create a misleading impression in the eyes of a reader?[74]
88 As per the Tribunal's original finding, and the Commissioner's contention, the purpose of Mr Harle's evidence at paragraph [8] of his affidavit was to raise the issue of credit. Mr Harle was seeking to establish that he was a more credible witness than Mr Gregory by invoking his own status as someone who had previously had a long-standing membership with the CPA.
89 Paragraph [8] of Mr Harle's affidavit was not responsive to any other affidavits in the Supreme Court proceeding. To a reader, there was no reasonable way to deduce from what Mr Harle deposed that the CPA had ever undertaken disciplinary action against Mr Harle, or that the CPA had forfeited Mr Harle's membership for a period of several years.
90 As the purpose of paragraph [8] of Mr Harle's affidavit was to establish Mr Harle as a more credible witness than Mr Gregory, it created a misleading impression of the true state of facts. The two sentences within that paragraph cannot be considered separately and in isolation. When read together, the impression that was left was that Mr Harle was a more credible witness than Mr Gregory by reference to his accounting experience. In comparing Mr Harle's and Mr Gregory's qualifications as accountants, it was misleading to omit reference to the fact that Mr Harle had his membership of the CPA forfeited for a period of two years, shortly after he had relinquished it. Clearly, a reader of the affidavit would attach far more credit to someone who was a member of the CPA for 32 years and relinquished their membership voluntarily, than to someone who was a member for the same period but who was subject to disciplinary action and the forfeiture of their membership. By not disclosing the full truth as to his CPA membership, a misleading impression was created.
91 In this regard, the principle from Thom (the 1918 decision) bears consideration:
But the Tribunal dealing with such a case was entitled to be put in a position of having the actual facts before it, and unfortunately the reasons given on the application to the Judge for the preparation of the affidavits in its present objectionable form indicated that there was a conscious withholding of information which a tribunal in such a case would be desirous of knowing in order to do justice to all parties. For these reasons it seems to me that the preparation of an affidavit in this form, and the explanation why it was done, are open to grave censure. It is of the greatest importance that any mere casuistry in the presentation of evidence should be strictly avoided by those entrusted with the responsible duties of a legal practitioner. It is perhaps easy by casuistical reasoning to reconcile one's mind to a statement that is in fact misleading by considering that the deponent is not under any obligation to make a complete disclosure. By this means a practitioner may be led into presenting a statement of fact which, although it may not be capable of being pronounced directly untrue in one particular or another, still presents a body of information that is misleading, and conceals from the mind of the tribunal the true state of facts which the deponent is professing to place before it.[75]
92 Although the factual scenario is different, the above observation bears relevance on the point of what constitutes a misleading impression. It is applicable to the present matter in circumstances where there was a conscious withholding of certain information in an affidavit, which meant that, although there was no direct untruth in the affidavit, a misleading impression was created.
93 I am satisfied that it was open to the Tribunal to find that Mr Harle's withholding of information as to the disciplinary action taken by CPA created a misleading impression. The law as confirmed recently in Forster, makes clear that there is a positive duty not to conceal facts that ought to be drawn to the attention of the court.[76] The authorities establish that although a party need not reveal something to its discredit, where evidence is presented which is partly true but does not amount to the whole truth, a misleading impression can be created. This was not contested by the parties, and as the transcript and reasons from the proceedings before the Tribunal demonstrate, the Tribunal applied the law to the facts.
94 There was no real or significant argument that there was an error of law, and therefore, the only basis for disturbing the Tribunal's finding in this regard would be on a factual basis. This goes beyond the Court's remit on appeal.
95 In relation to question of law 4(b), the Senior Member makes it explicit at paragraph [1] of 10 October 2014 Reasons that the nature of the conduct that Mr Harle was found to have engaged in and the circumstances in which it occurred, were fully set out in the original findings dated 10 September 2014. The Senior Member proceeds to state that the impression left by Mr Harle's affidavit was that he relinquished the CPA membership after 32 years without blemish. This is not a new finding of fact on liability. The 10 September 2014 Reasons set out the findings of fact in that regard. The 10 October 2014 Reasons are referrable only to penalty and were not intended to displace nor disturb the original finding.
96 I therefore refuse to grant leave to appeal in respect of questions of law 4(a) and (b). Even if leave was granted, I am not satisfied that there was an error of law.
Question of Law 6 - Denial of Procedural Fairness
97 The sixth question of law within the Notice of Appeal was that:
The Tribunal failed to accord procedural fairness in that it failed, prior to making the findings referred to in para 4 (or prior to making whatever finding that a misleading impression was created which it in fact made) to identify, or require the Commissioner to identify:
(a) the misleading impression said to have been (or which the Tribunal was contemplating finding to have been) created by the Affidavit.
98 Counsel for Mr Harle sought to rely on the High Court authority of Smith v NSW Bar Association ('Smith'),[77] which outlines the requirements of procedural fairness with respect to disciplinary prosecutions of lawyers. These requirements include:
(a) that the allegations against the particular practitioner must be specifically identified; and
(b) that the practitioner must be afforded an appropriate opportunity of being heard in relation to them.[78]
99 Mr Harle submits that the original charge by the Commissioner against him was impermissibly vague in that it was unclear:
(c) when the misleading impression was created; and
(d) how Mr Harle's conduct constituted disgraceful and dishonourable behaviour.[79]
100 Mr Harle further submits that the allegation that the affidavit created a false and misleading impression that he had been a member of the CPA until 2008, when he voluntarily relinquished his membership, was one which was never referred to by the Commissioner or Tribunal during the VCAT proceeding. Rather, the first reference to what constituted the misleading impression occurred in the findings. As a result, Mr Harle submits that he was not given an appropriate opportunity of being heard in relation to such a charge, which was ultimately found proven by the Tribunal.[80]
101 The Commissioner opposes the grant of leave to appeal in question of law 6 and considers the question of law to be wholly without merit.
102 The Commissioner submits that the particulars of the charge clearly articulated the allegations and, in particular, the allegation that the affidavit created a misleading impression as to the true state of facts. The misleading impression was identified within the charge as Mr Harle's failure to set out the whole truth concerning the relevant history of his entitlement to practise as a certified practising accountant.[81]
103 Accordingly, the Commissioner submits that Mr Harle was accorded procedural fairness before the Tribunal made its findings.
104 The issue of procedural fairness was not raised at any stage at the original hearing of the matter before the Tribunal. It has only now been raised for the first time in the Notice of Appeal.
105 Parts of this question of law overlap with questions of law 4(a) and (b) of Mr Harle's appeal, which has been discussed earlier.
106 Procedural fairness requires that a party receives adequate particulars of the nature of the charge which has been made against them, and which will be considered by the decision-maker.
107 In accordance with my earlier findings, the original charge and the particulars regarding the charge which accompanied the application to the Tribunal made clear that:
(a) paragraph [8] of Mr Harle's affidavit sought to draw a distinction between Mr Harle's prior qualification as a CPA, and Mr Gregory's absence of any such qualification;
(b) Mr Harle knew that paragraph [8] of his affidavit did not set out the whole truth concerning the relevant history of his entitlement to practise as a CPA; and
(c) a misleading or false impression was therefore created.
108 During the hearing of the matter before the Tribunal, counsel for the Commissioner identified on a number of occasions the misleading impression it alleged was created by Mr Harle's affidavit:
Ms Hannon: ... the Commissioner's case is that paragraph 8 can only have been inserted for the purpose of drawing a distinction between Mr Harle's CPA qualifications and Mr Gregory's absence of any such qualification. Put another way, the respondent sought to undermine Mr Gregory's qualifications and thereby his credibility as a witness when compared with Mr Harle, because of course their versions of what happened on key dates were different...
The Commissioner says that in offering up his superior CPA membership as a point of distinction it must have been obvious to the respondent that the fact that the CPA Australia Group had seen fit to forfeit that membership was also a matter of relevance to the court in considering his credit as a witness.
...
Ms Hannon: The Commissioner's case is therefore that the affidavit deposed on it half truths [sic] on two key issues which created a false or misleading impression as to the truth. The Commissioner contends that the respondent knew that this was the case and proceeded to approve the form of the affidavit and swear it, knowing it would be filed and served.[82]
109 At no stage during the conduct of the proceeding before the Tribunal did Mr Harle's counsel raise an allegation that the Commissioner did not identify the misleading impression arising from Mr Harle's affidavit. The question of the misleading impression at paragraph [8] of Mr Harle's affidavit was discussed at several points during the hearing, with no concerns being raised by Mr Harle's counsel.[83]
110 I consider that the allegations against Mr Harle in relation to the alleged misleading impression contained within paragraph [8] of his affidavit were clearly identified and articulated within the Commissioner's charge and particulars of charge, as well as at the original hearing of the matter before the Tribunal. There is no basis for the allegation that Mr Harle was not accorded procedural fairness before the Tribunal made its findings.
111 I do not find that there is a real or significant argument to be put that an error of law exists. I therefore do not consider leave should be granted to question of law 6, and even if leave was granted, I do not consider there has been an error of law.
112 For the reasons set out above the appeal should be dismissed.
113 Subject to hearing submissions, I consider that an appropriate order as to costs is that Mr Harle should pay the Commissioner's costs of the application.
[1] Re Botanical Water Holdings Pty Ltd [2013] VSC 96 [8].
[3] Legal Services Commissioner v Harle (Legal Practice) ('LSC v Harle') [2014] VCAT 1134 (10 September 2014), [1], [3].
[4] LSC v Harle [2014] VCAT 1134, [34]-[45] (citations omitted).
[5] Legal Services Commissioner v Harle (Legal Practice) (Unreported, VCAT, Senior Member Smithers, 10 October 2014), 2 [1].
[9] [2007] VSCA 163; (2007) 18 VR 48, 55-6 [28] (citations omitted).
[12] Transcript of Proceedings, Matthew Harle v Victorian Legal Services Commissioner (Supreme Court of Victoria, S CI 2014 6436, Zammit J, 26 October 2015) ('T') 23, Lines ('LL') 25-30.
[14] Matthew Harle's Written Leave Application and Appeal Submissions dated 12 October 2015 ('Plaintiff's Written Submissions') 30 [152]-[154].
[17] ACN 087 528 774 Pty Ltd v Chetcuti [2008] VSCA 274; (2008) 21 VR 559, 566 [20].
[18] Plaintiff's Written Submissions, 31 [160]; Giudice v Legal Profession Complaints Committee [2014] WASCA 115, [46].
[22] Defendant's Outline of Submissions on Application for Leave to Appeal and Appeal dated 19 October 2015 ('Defendant's Written Submissions'), 4-6 [10].
[23] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72, 83-5; Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1, 30-1 [99]; Ta v Thompson [2013] VSCA 344 [27].
[24] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 498 [45].
[25] ACN 087 528 774 Pty Ltd v Chetcuti [2008] VSCA 274; (2008) 21 VR 559, 566 [20].
[30] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 271, 273, 280.
[35] [2003] VSC 183, [24] (citations omitted).
[38] LSC v Harle [2014] VCAT 1134 (10 September 2014), [34]-[35].
[39] LSC v Harle [2014] VCAT 1134 (10 September 2014), [36]-[37].
[45] LSC v Harle [2014] VCAT 1134 (10 September 2014), [42].
[46] Letter from Legal Services Commissioner to Douglas Harle [sic], 28 November 2013.
[49] Transcript of Proceedings, Legal Services Commissioner v Harle (Legal Practice) (VCAT, Senior Member Smithers 2 September 2014) ('VCAT Proceeding, T') 7, LL 21-27; T 8, LL 3-7; T 19, L 26; T 20, L 7; T 22, LL 12-18.
[51] VCAT Proceeding, T 28, LL 4-22; T 30, LL 6-20; T 33, L 13; T 34, L 31; T 35, L 22 to T 36, L 28.
[52] LSC v Harle [2014] VCAT 1134 (10 September 2014), [41].
[53] VCAT Proceeding, T 61, LL 7-T 62, L 18.
[54] LSC v Harle [2014] VCAT 1134 (10 September 2014), [39], [43].
[55] Defendant's Written Submissions, 4-6 [10].
[57] [2013] 40 VR 587, 619 [161]-[162].
[58] LSC v Harle [2014] VCAT 1134 (10 September 2014), [26].
[61] Plaintiff's Written Submissions, 26 [132]-[4].
[63] Plaintiff's Written Submissions, 27 [138]-[9]; T 18, LL 13-20.
[65] T 20, LL 14-25; T 21 LL 20-31; T 21, LL 1-6.
[67] Defendant's Written Submissions, 2 [3(d)].
[68] Defendant's Written Submissions, 8 [21].
[69] Ibid, 8 [22]-[3]; T 36, LL 5-7, 26-8; T 37 LL 13-20.
[71] Defendant's Written Submissions, 9-10 [27]-[9].
[72] T 42, LL 23-31; T 43, LL 1-13, 28-31; T 44, LL 1, 3-7.
[73] Forster [2013] 40 VR 587, 619 [161]-[2].
[74] The question of whether that misleading impression had been specifically identified by the Commissioner and the Tribunal is dealt with in question of law 6.
[75] Thom [1918] NSWStRp 4; (1918) 18 NSWSR 70, 74-75.
[76] (2013) 40 VR 587, 619 [161]. See also Thom [1918] NSWStRp 4; (1918) 18 NSWSR 70, 74-75; Kyle [1999] WASCA 115, [6], [20]; Piva [2009] VCAT 1200, [103]-[119].
[79] Plaintiff's Written Submissions, 25 [123].
[80] Ibid 25-6 [129]-[130]; T 14, LL 4-31, T 15, LL 1-6.
[81] Defendant's Written Submissions, 11-2 [41].
[82] VCAT Proceeding, T 19, LL 5-19, 29-31; T 20, LL 1-4. Further references were made at T 5, LL 16-28; T 22, LL 5-8;
[83] VCAT Proceeding, T 55, LL 11-13; T 61, LL 28-31.
Harle
Victorian Legal Services Commissioner [2015] VSC 697
(1999) 3 VR 331
(2007) 18 VR 48
(2008) 21 VR 559
(2001) 207 CLR 72
(2002) 6 VR 1
(2013) 252 CLR 480
(1987) 10 NSWLR 247
(2013) 40 VR 587
(1992) 176 CLR 256