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[2025] VSC 189
General information, not legal advice.
Supreme Court of Victoria
2025-03-25
Gray J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Stay - Application for stay of suspension of legal practising certificate - Legal practising certificate suspended on the basis of a charge of an indictable offence - Application granted on basis of undertakings - Legal Profession Uniform Law (Vic) ss 77, 82(2) - Supreme Court (General Civil Procedure) Rules 2015 r 56.06.
1 On 14 March 2025, a delegate of the Victorian Legal Services Board suspended Ms Tricarico's practising certificate. I will refer to this decision as the 's 77 suspension decision'. Ms Tricarico then promptly commenced a proceeding in this Court. She contends that the s 77 suspension decision is invalid. She applies for a stay of the s 77 suspension decision. In support of that application, she gives certain undertakings to the Court limiting the scope and manner of her proposed practice of law.
2 The questions before me are: What is the nature of the jurisdiction of the Court in this case? What are the legal principles that apply? Does the proceeding raise an arguable ground of invalidity of the s 77 suspension decision? If so, on the facts before me, what are the factors in determining whether it is in the interests of justice to grant a stay, and also how early can Ms Tricarico's proceeding for judicial review for the s 77 suspension decision be heard? In balancing all these factors, should a stay be granted and if so, on what conditions?
3 I turn to the context, both factual and legal. I start with Mr Anstee's affidavit which I received into evidence during the hearing of the application. He deposes that on 13 March 2025, Victoria Police provided to the Board, a copy of a charge sheet relating to the plaintiff which bears the following charge:
That TRICARICO on the 5th of February 2019, with intent to pervert the course of justice, instructed Youssef RAFFOUL to remotely delete the contents of a mobile phone that TRICARICO believed had been used by Patrick SUCCAR prior to SUCCAR's arrest, which had the tendency to pervert the course of justice in that it had the tendency of hindering the inspection of that mobile phone by Victoria Police officers for the purposes of the investigation and prosecution of SUCCAR for serious offending.
4 The charge sheet is in evidence and it shows that it was signed by an informant Detective Senior Constable of Victoria Police on 13 March 2025, the very day it was provided to the Board.
5 What is the Board? According to Mr Anstee it is a local regulatory authority within the meaning of that term used in the Legal Profession Uniform Law (Vic) (Uniform Law). That is a uniform law applied in a number of jurisdictions, scheduled to an Application Act which is - in Victoria - the Legal Profession Uniform Law Application Act 2014.
6 Relevantly, says Mr Anstee, the Board is the designated local regulatory authority for functions relating to the grant, renewal, variations, suspension and cancellation of Australian practising certificates.
Following receipt of the Charge-Sheet, on 14 March 2025, in exercise of the authority delegated to me by the Board referred to above, I made the decision to immediately suspend the Plaintiff's practising certificate under section 77 of the Uniform Law.
8 Mr Anstee deposes that he formed the preliminary view that the Board should take action to suspend the plaintiff's, that is, Ms Tricarico's, practising certificate under another section of the Uniform Law as well, s 82(2) of the Uniform Law. I will turn to those provisions in a minute.
9 Before doing so, I will refer to a document that Mr Anstee exhibits to his affidavit, which is a letter to Ms Tricarico. It is a letter he refers to as containing his decision and the reasons for decision. It is addressed to Ms Tricarico. It is essentially in two parts. There is a part of it that informs Ms Tricarico and sets out reasons for immediate suspension of Ms Tricarico's practising certificate under s 77 of the Uniform Law and the other part gives notice of a proposed suspension of Ms Tricarico's practising certificate under other sections including s 82(2) of the Uniform Law.
10 So why the two parts and why the two decisions? To answer that question, it is necessary to note the Uniform Law itself, and I will do so briefly. It is first necessary to notice Part 3.5 Division 2 entitled, 'Variation, suspension or cancellation of certificates'. Section 77 appears there and it is entitled, 'Immediate variation or suspension before or during consideration of proposed action'.
11 This is, in temporal terms, the first step involved and the first potential decision involved. It relevantly provides that if the Board is considering whether to start, continue or complete action under this part in relation to a certificate and it considers it necessary in the public interest to vary or suspend the certificate immediately, the rest of the provision applies. And that allows the Board to immediately vary or suspend the certificate by written notice given to the holder until the earlier of two things: the time at which the Board informs the holder of a decision under this part that must be a decision under another provision of this part, or the end of the period of 56 days after notice is given.
12 On my calculation, the end of 56 days is 9 May 2025, and that is an important point to note.
13 The second provision of note appears under Division 3 which is entitled 'variation, suspension or cancellation on specific grounds'. It is s 82(2). Section 82 is entitled 'Grounds for action under this Division'.
14 Section 82(2) provides:
(2) [The Board] may vary or suspend a certificate under this Division (if it considers it appropriate to do so having regard to the seriousness of the offence concerned and to the public interest) on the ground that the holder has been charged with a serious offence ... [and certain other matters] ... and -
(a) the charge [of the serious offence] has not been determined; or
(b) the holder has been convicted of the offence but proceedings taken or likely to be taken in relation to the offence have not been concluded.
15 That provision, in referring to a 'serious offence', picks up the definition of an 'indictable offence', and it is uncontroversial that the charge sheet in this case is charging Ms Tricarico with an indictable offence. So the Board's case is that s 82(2) is engaged; and furthermore, the delegate had power under s 77 to impose what I might call an interim immediate suspension of Ms Tricarico's practising certificate.
16 Going back to Mr Anstee's affidavit and to the decision letter annexed to it, that decision letter contains some passages counsel took me to during the hearing of the application and which are important to note. Paragraph 2 of the letter records some background facts relating to Ms Tricarico to the effect that she was admitted to the legal profession on 17 April 2012 and has held Australian practising certificates issued by the Board since that date, and that Ms Tricarico at the time of the letter currently held a principal practising certificate with trust authorisation and was the sole principal and legal director of Sarah Tricarico Lawyers Pty Ltd.
17 Under the heading 'Immediate suspension of your practising certificate under s 77 of the Uniform Law', the Board at paragraph 6 and following first adverts to s 77 taking its place in the Uniform Law, as I have just explained, and then at paragraph 7 refers to a case of New South Wales Bar Association v Cummins.[1]
18 In that case, Spigelman CJ identified four interrelated public interests in the conduct of legal practitioners, and it is worth reading these out now because they come up later in the analysis that is necessary to determine the matter before me: (1), clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers; (2), fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues; (3), the judiciary must have confidence in those who appear before the courts; and (4), the public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice.
19 The letter goes on at paragraphs 8 and following to note that while action was being considered by the Board under s 82 of the Uniform Law, the delegate on behalf of the Board has made a decision with immediate effect to suspend Ms Tricarico's practising certificate under s 77. At paragraph 10, there are some matters that were considered, but it is paragraph 11 that sets out the reasons given by the delegate:
20 As counsel for Ms Tricarico correctly submitted during the hearing of the application, in my view also, those reasons can be broadly divided into two categories. One category relates to different aspects of the confidence that the public, judiciary and the profession must have in lawyers in order for confidence to be maintained in the administration of justice, and that is really said in different ways in the first three of the reasons for suspension of the practising certificate. The second category, comprising the final two reasons, is that there is a risk to the public, the rest of the profession and to the administration of justice.
21 What is the nature of this risk? That point - that there is an unacceptable risk to the public, the rest of the profession and the administration of justice - is at a relatively high level of abstraction, so it is necessary to unpick what it really means. It is necessary to note a submission made on behalf of the Board in writing, to which I was taken during the hearing of the application. In the defendant's submissions at paragraph 64, it is said that:
The Board's decision was not based upon a risk that the Plaintiff has or would commit offences of a similar nature. The very existence and grave nature of the charge undermines the trust that can be placed in the Plaintiff by the judiciary, the profession and the public and presents a risk to the integrity of the judicial system and the administration of justice.
22 In other words, the Board's position is that the fact of a filing of a charge of this nature alleging that Ms Tricarico has attempted to pervert the course of justice is, in the eyes of the public, the profession and the judiciary - without more, a sufficient basis for the immediate suspension of her practising certificate. In fact it necessitates that outcome. And this is not a case where the Board is suggesting that Ms Tricarico would reoffend, that is, do something of the nature of the alleged conduct either in her current work or in her future work. That is an important matter to note. I will return to it a little later.
23 Before returning to that and other legal points, I need to go on with my recitation of contextual facts. It is necessary in that regard to go to Ms Bleyer's first affidavit, which I also received into evidence during the hearing of the application. In that affidavit, Ms Bleyer says as follows:
The Plaintiff denies the allegations made through the charge filed against her.
Prior to the purported suspension of her practising certificate, the Plaintiff acted for Antonios Mokbel and has done so for almost 9 years. Mr Mokbel has a bail application listed for hearing on 1 April 2025, which the Plaintiff was well advanced in preparing.
The Plaintiff informed me and I believe that she has been engaged by Mr Mokbel to act for him in long-running and very significant litigation in the Court of Appeal, which includes allegations about the propriety of conduct by Victoria Police and the State of Victoria.
Victoria Legal Aid (VLA) has been funding Mr Mokbel's proceedings. I am informed that due to the suspension of the Plaintiff's practising certificate, VLA will be required to transfer Mr Mokbel's grant of legal assistance to another law practice. This is because VLA granted an exemption to the Plaintiff to act for Mr Mokbel as her law practice is not on VLA's panel of law practices entitled to apply for funding. Once the grant is transferred, I am informed that it is highly unlikely to be transferred back to the Plaintiff and her law practice in future.
24 There are other matters in the affidavit which I have also taken into account, but I do not need to read them now.
25 It is next necessary to go to the affidavit of Mr Mokbel. He deposes that:
26 Next I will go to Ms Bleyer's second affidavit and note the following facts in that affidavit:
[Ms Tricarico]'s criminal proceeding returns to the Magistrates' Court of Victoria for a committal mention on 5 June 2025. Unless her proceedings are discontinued by the Prosecution, they will progress to a jury trial in the County Court of Victoria.
The Plaintiff maintains her innocence and is confident that the charge against her will be either discontinued or that she will be found not guilty at Trial.
On 20 March 2025, I spoke to Stephen Andrianakis, a legal practitioner of many decades and the Principal of the law practice Stephen Andrianakis and Associates.
...
Mr Andrianakis is now acting for Antonios Mokbel in lieu of the Plaintiff, his engagement of which commenced on 19 March 2025. On 19 March 2025, he also commenced acting for a number of other people who are clients of the Plaintiff, and for whom he now acts because of the suspension of the Plaintiff's practising certificate.
Some matters are progressing today, 20 March 2025, and he would assess 30% of the Plaintiff's clients that he has taken on, possibly more, are substantial indictable matters. There are very large volumes of material that he is going to need carefully to go through, which is going to take many days, if not weeks.
For some matters, he expects he may need to apply to the Court for adjournment by reason of suspension of the Plaintiff's practising certificate, which he is concerned causes inconvenience to the Court, other legal practitioners and barristers, their clients, and the former clients of the Plaintiff for whom he now acts.
He considers that Mr Mokbel and other clients for whom the Plaintiff was previously acting are suffering serious prejudice in respect of their matters as a result of the Plaintiff being suddenly, without notice, denied the ability to continue to act for them.
27 He then goes on to instruct Ms Bleyer, and Ms Bleyer also deposes that:
Mr Andrianakis is prepared to employ the Plaintiff as an employee solicitor with a practising certificate that includes the condition that she practise subject to his supervision. He is also prepared to require her to work only from his Melbourne CBD business premises and only when he is also present so he can supervise her closely.
28 Ms Bleyer has put on a fourth affidavit containing updated information to the effect that the material that the law practice of Stephen Andrianakis is attempting to digest is extremely voluminous, and they are under pressure. The clear implication is that they are in need of assistance and would be still very willing for Ms Tricarico to assist in the capacity of an employee solicitor.
29 The other affidavit before me is an affidavit of Mr McCarthy, which exhibits a number of newspaper articles in relation to Ms Tricarico, and those articles describe her as a 'gangland lawyer' and the like.
30 What is the nature of the jurisdiction of the Court in this case? It is a matter brought under order 56 of the Supreme Court (General Civil Procedure) Rules 2015. Order 56.06(1), which is newly added, expressly recognises or confers a power to grant a stay to preserve the subject matter of litigation before the Court. It is described as a stay, and the precise words used are:
The Court, at any time, may stay the decision or action the subject of the proceeding in order to ensure the effective exercise of the Court's jurisdiction.
A stay order may be granted on such terms, and subject to such conditions and limitations, as the Court thinks fit.
32 Absent statutory power to do so, a court cannot suspend the operation of a statute.[2] In my view, generally speaking, this principle extends to a decision, permit or order under a statute.[3] This proceeding is not brought under a statute that confers an express stay power on the Court.[4] In my view, the stay power recognised in r 56.06 must, in its application to this proceeding, be founded upon the ability of the Court to grant injunctive orders to preserve the subject matter of proceedings and ensure the effective exercise of the jurisdiction invoked, as recognised in Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia[5] and cases such as Tait v R.[6]
33 Most recently, the High Court considered this power (in the context of the Federal Court and provisions relating to the removal of non-citizens under the Migration Act 1958 (Cth)) in Minister for Immigration and Multicultural Affairs v MZAPC.[7] The plurality reasoned that the Federal Court's power to prevent removal of a non-citizen pending determination of a proceeding for a declaration of invalidity of a decision that could have resulted in the grant of a visa was based on its power to grant interlocutory injunctions to preserve the subject matter of the proceeding and to secure the effective exercise of the jurisdiction invoked.[8]
34 The most analogous case of relatively recent vintage in this Court that the parties drew to my attention was the case of Maund v Racing Victoria Ltd.[9] Like the present case, it involved a stay of a decision curtailing the operation of form of statutory licence. A disciplinary board had made a decision disqualifying a person from being a thoroughbred racehorse trainer licensed by Racing Victoria under the Racing Act 1958. That person sought an order from the Court of Appeal staying the disqualification. Any similarity with the present case ends there. The disqualification decision was made by the board on a final basis following a hearing, and on appeal to VCAT the board's decision was affirmed. An appeal on a question of law was brought in the Court of Appeal because VCAT had been constituted by a vice president. Cavanough AJA noted that the Court's jurisdiction in such a proceeding, despite its being called an 'appeal', was an original jurisdiction akin to judicial review.[10] His Honour considered whether or not the principles recognised in a line of authorities relating to stays pending appeals from orders of courts, including Maher v Commonwealth Bank of Australia,[11] were 'less applicable' in such a case.[12] His Honour ultimately decided the matter without resolving that question.[13]
35 The present proceeding is a judicial review proceeding, not an appeal of any sort, and certainly not an appeal in which the Court is going to be rehearing the matter de novo. It is important to note that the Uniform Law does provide for such an appeal, but it is an appeal available under s 100 of the Uniform Law, which in this jurisdiction is to VCAT, and not to the Court. The appeal avenue is different in New South Wales,[14] so New South Wales cases have to be treated with some caution and with that difference in jurisdictional arrangements in mind.
36 The fact that there is an available avenue of appeal from the s 77 suspension decision on the merits to VCAT - and indeed, in such an appeal a stay power is expressly recognised in s 100(4) of the Uniform Law - was not raised by the Board in this case. It was not contended that this provided any basis for me declining to grant any relief in this proceeding. It was not submitted on behalf of the Board that the Court would exercise its discretion to refuse relief because of the availability of some other more appropriate avenue of appeal, including the availability of a statutory stay power. So having noted that, I move on.
37 As I have said, in my view, the stay power under r 56.06 has to be viewed as one which can only be employed to preserve the subject matter of the proceeding and ensure the effective exercise of the jurisdiction invoked. There are two perspectives of the relevant subject matter of this proceeding, and in considering both, it is important to recognise the statutory architecture that I mentioned earlier. All that has happened so far is that the Board, through its delegate, has made an interim decision without notice to suspend Ms Tricarico's practising certificate immediately, which will come to an end either on 9 May or when the Board makes its decision on the more substantive question of whether to suspend Ms Tricarico's practising certificate under s 82.
38 From the Board's perspective, the subject matter of this proceeding is its suspension pending the earlier of those two events, and from Ms Tricarico's perspective, the subject matter is her ability to practise law in the interim up to the earlier of those two events. Either way, the subject matter of the proceeding is rather transient. If the substantive proceeding for judicial review of the s 77 suspension decision is not heard before 9 May at the latest, the subject matter of the proceeding will evaporate without there being any determination by the Court of that subject matter.
39 On behalf of the Board, it was submitted by counsel that in the event a stay is granted, and that time elapses without determination by the Court of the substantive judicial review proceeding, the stay will effectively hand to Ms Tricarico substantive victory without there having been a trial. But on the other hand, if a stay is not granted and that time elapses, the same argument could be made by Ms Tricarico.
40 This will lead me, in due course, to return to the question of when this proceeding can be heard and whether it can be heard in time for a substantive decision to be made in the judicial review proceeding before the subject matter of the proceeding evaporates. And I am going to, in due course, ask the parties for their position on that.
41 I am going to make the assumption that it will be possible to have a speedy trial of the substantive application for judicial review of the s 77 suspension decision. I am going to make the assumption that it should be possible to have a trial of that matter heard by say around mid-April.
42 What are the legal principles that apply? It is clear that the onus is on Ms Tricarico to persuade the Court that a stay is appropriate. It is also apparent that it is a broad discretion that is invested in the Court on this matter, and it is a discretion that should take into account all the relevant circumstances.
43 I return to that case of Maund, which provides guidance in this regard.
44 Maund, and other applicable authorities, in turn pick up the line of cases including Maher v Commonwealth Bank of Australia[15] which relate to stays of appeals from orders of tribunals and courts. This is not an application for a stay of an order of a tribunal or a court, so I have to take that into account in giving weight to the various principles ascribed in those cases to the function of considering whether to grant a stay. For example, the principle that a successful party is entitled to the benefit of the judgment under appeal unless 'special circumstances' are made out does not apply here.
45 The plaintiff accepts in her submissions at paragraph 5 that, as stated in the cases, she must demonstrate at least an arguable ground of appeal. So that is uncontested, and on my analysis of the authorities, that is indeed an irreducible minimum of what is required. If that is demonstrated, the following question is, in all the circumstances whether it is in the interests of justice to grant the stay. If the matter before me were to be viewed as an application for an interlocutory injunction pursuant to s 37 of the Supreme Court Act 1986, the analysis would be the same. It would be necessary to consider the corresponding questions of whether the plaintiff has made out a prima facie case (or a serious issue to be tried), and whether the balance of convenience favoured the grant of an injunction, properly framed.[16] Rule 56.06 enables the Court to frame the order by reference to its effect on the world at large, but otherwise the process of analysis is the same.
46 The threshold question of whether this proceeding raises an arguable ground of judicial review, was not squarely contested by the Board in submissions during the hearing of the application. The Board's submissions emphasise the interests of justice but they do not, as I read them, squarely contest the arguability of the judicial review application.
47 The defendant's submissions, in particular in a very helpful passage at paragraphs 16 to 20, set out the matters that need to be taken into account in considering the interests of justice by reference to a series of New South Wales cases: New South Wales Bar Association v Stevens,[17] Cummins, and Robb & Rees v Law Society of the Australian Capital Territory[18] amongst them. Cummins I have already mentioned including the four factors identified by Spigelman CJ in that case. I will not repeat them.
48 Amongst the cases that were drawn to my attention, there was only one case in which a question arose of the grant of a stay of a suspension of a practising certificate where the practising certificate had been suspended on the basis of the filing of charges or the making of allegations alone: the decision of Adamson J in XY v Council of the Law Society of New South Wales.[19]
49 As I read them, all the other cases drawn to my attention involved findings that had been made of misconduct of various kinds, and many of them involved cases where there had been convictions of such conduct.
50 It was only in XY that a court has dealt with whether to grant a stay relating to suspension of a practising certificate in circumstances where there have merely been charges or allegations made, without a finding of guilt. As I already noted, having regard to the jurisdictional differences in New South Wales I just mentioned earlier I need to be a bit cautious about how I use this case.
51 XY shows that, at least in New South Wales, when addressing a stay application in circumstances where the Supreme Court is to hear an appeal of a suspension, the New South Wales Supreme Court may consider any material that is put before the Court in support of the allegations in question.
52 XY was a case in which it was alleged that the solicitor in question had been abstracting from awards of damages for personal injuries clients quite significant amounts before passing the balance on to those clients. Effectively, the allegation was of stealing from clients and related conduct. Adamson J evaluated the evidence placed before the Court and came to the view that in the interests of justice and in the interests of protection of the public, a stay of the suspension would not be granted. Her Honour concluded that there was evidence relating to financial records before the Court that raised questions about the practitioner's conduct and required explanation.[20] There was also evidence that related conduct was continuing to occur.[21] In the interests of protection of the public,[22] her Honour declined to grant a stay of the suspension of that practitioner's certificate.
53 I return to paragraph 64 of the defendant's submission in this case. That paragraph shows that the Board is not basing its decision on any view that Ms Tricarico presents a risk of committing the kind of conduct that has been alleged against her, and I note that the allegations in the charge sheet are more than six years old. There is no evidence of any conduct of that kind having occurred on any other occasion, and there is no evidence of anything of that kind occurring now. I repeat: paragraph 64 of the defendant's submission seems to make it clear that this is a case all about perceptions - public perceptions, judicial and professional perceptions - of the seriousness of a charge of this kind, and it is very far from the circumstances in the XY case.
54 Does the proceeding raise an arguable ground of invalidity of the s 77 suspension decision? Although this, as I have said, is not squarely contested by the Board in its submissions, it is still necessary for me to form a view on it.
55 Ms Tricarico's originating motion advances three grounds of invalidity of the s 77 suspension decision. The first is a procedural fairness ground.
56 The Board submitted, by reference to a textual analysis of ss 77 and 82, that the Board must have statutory power to be able to suspend a practising certificate immediately in the case of untried charges if they are charges of a 'serious offence'. I accept that that power is available on a textual analysis of those provisions.
57 Since the High Court's decision in Kioa v West,[23] it has been clear that the requirements of natural justice (more accurately described as procedural fairness) are presumed to apply to the making of any decision affecting the interests of a person unless the relevant statute makes it clear that those principles are excluded. Once it is established that the principles of procedural fairness apply, the question of their content depends on the circumstances of the case. As Brennan J said in Kioa v West, 'in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred.'[24]
58 The Board submitted that the procedural fairness breach that is alleged in the originating motion has to be viewed as follows. The Board did not make a case that s 77 is to be read as excluding the usual presumption that natural justice or procedural fairness applies, but it submitted that the content of the hearing rule must be reduced to zero here; in effect, no right of hearing was to be provided to Ms Tricarico in the circumstances of this case.
59 And the Board submitted that that was essentially a matter for it to decide, or its delegate to decide, in the circumstances of the case.
60 Because the Board is accepting that the hearing rule of procedural fairness is potentially applicable before a decision under s 77 is made, notwithstanding that the Board is submitting that it is up to the Board to decide what the content of that hearing rule is in a given case, there must be at least an argument that the Board should have provided some advance notice to Ms Tricarico before immediately suspending her practising certificate under s 77.
61 I do not accept the Board's argument that it was conclusively a matter for the Board to determine what the content of the hearing rule of natural justice was in the case. The Court must have a supervisory role in that regard and must be able to form a view for itself about what the content of the hearing rule of procedural fairness was in the circumstances of the case. Whether it is a strong case for a breach of procedural fairness having occurred, or a weak case, is a matter that I will not go into now and is a matter for trial, but it is an arguable case.
62 Procedural fairness was the centrepiece, perhaps, of the arguments relating to the grounds in the originating motion. However, there were two other grounds. Was there a rational basis for the decision to immediately suspend the practising certificate? And was it unreasonable in the sense of being disproportionate, a sledgehammer to crack a nut, lacking nuance?
63 Strictly speaking, I do not need to express any particular views on the arguability of those grounds because I have already expressed a view that the procedural fairness ground is at least arguable. However, I will note that the unreasonableness or proportionality argument rests on a view expressed by French CJ in the matter of Minister for Immigration and Citizenship v Li.[25] It is a view that may not - at least, not yet - form part of the law in this area, but that is not to say that it is necessarily excluded from the law in this area either, and if the plaintiff wishes to make an argument that it is part of the law in this area, then even that, I suppose, is a basis for saying the argument is arguable.
64 I turn then to the principal points of contention relating to whether it was in the interests of justice in all the circumstances to grant a stay. I return to the point that I have gleaned from the reasons for decision and paragraph 64 of the defendant's outline. The Board considers that professional, judicial and public confidence would be sufficiently shaken by a person in Ms Tricarico's position being allowed to continue to practise to justify immediate suspension.
65 So, does the mere fact of an allegation being made against a practitioner of attempting to pervert the course of justice in alleged conduct six years ago, outweigh any countervailing factors and lead to the conclusion that the interests of justice are against the grant of a stay?
66 There are a number of countervailing factors. The allegation, as I have noted, is more than six years old. The allegation is denied. There is no evidence before the Court supporting the allegation. It is signed by a police member as informant, but there is no evidence of the kind, for example, considered by Adamson J in XY or the kind of material that might be expected to find its way into a prosecution brief. There is no explanation why the charge relates to events more than six years ago, or in other words, why the charge sheet filed on 13 March 2025 in relation to events in February 2019 has been filed so late.
67 There is correspondence in the affidavit material before me showing that Ms Bleyer inquired of the Board what information it had in relation to matters of that kind, and that the response was to the effect that the decision letter sets out what the Board has. I infer therefore that the Board had no other information whatsoever and made no inquiries about those matters.
68 The Board has not formed a view that Ms Tricarico is likely to reoffend, to use that expression in the sense I described, that is to do anything of the kind that is alleged against her six years ago. They are not saying that it is likely that she will attempt to pervert the course of justice in any of her current and future work.
69 The Board's position is that the mere laying of the charge necessitates immediate interim suspension without notice while the Board considers whether to impose a longer term suspension under s 82; and the reason is, essentially, that the Board considers that judicial, professional and public confidence would be shaken if a lawyer under a charge of attempting to pervert the course of justice is allowed to continue to practise law. And that is because the course of justice is core business in the administration of justice. The Board also points to newspaper articles describing Ms Tricarico as a 'gangland lawyer' and the like.
70 Distilled to its essentials, the case for the Board is that the public perception, in particular the public perception of a lawyer being charged with an attempt to pervert the course of justice, necessitates immediate suspension or else the public and the judiciary and profession would lose confidence in the administration of justice and the system for the regulation of lawyers.
71 In reaching that view, the Board's delegate did not turn his mind to any potential for the disruption of court proceedings and there is no reference in the decision to the presumption of innocence. The presumption of innocence is an important part of the system of criminal justice in the State. There were contending submissions during the hearing of the application about the presumption of innocence in the following sense: the Board submitted that it was entitled to, and perhaps required to, decide whether to immediately suspend Ms Tricarico's practising certificate on the basis that it should assume that the charge against her would be made out in due course.
72 That raised the question whether I am supposed to decide a stay on that basis as well. There was some to-and-fro between the parties as to the precise nature of the Board's submission in this regard. The Board accepted that there are no decided authorities suggesting that any assumption should be made that the charge will be made out in due course. I think the point being made by the Board was somewhat more nuanced, that the s 77 suspension decision should be made having regard to either that assumption or at least that possibility.
73 I do not accept that the Board is required to, or should, approach its task on the basis of any assumption that the charge will be made out in due course. Perhaps the Board needs to consider the possibility of that outcome. The XY case itself suggests that this is a nuanced issue, and it is open to an authority deciding questions such as suspensions and stays to look at the strength of the case alleged.
74 In deciding the stay issue in this case, I am making no assumption about the charges being proved in due course and I am going to make the assumption that the public, and even more so the judiciary and the profession, knows about the presumption of innocence. I assume they would take it into account in forming their views about whether they would have confidence in the administration of justice if Ms Tricarico is allowed to continue to practise under some regime of conditions.
75 The next point I identified is how early can Ms Tricarico's substantive proceeding for judicial review of the s 77 suspension decision be heard, and the answer is I can make myself available for a trial on 16 and/or 17 April.
76 Balancing all these factors, should a stay be granted and if so, on what conditions? There is considerable force in the suggestion or submission by the Board that public confidence would be adversely affected, in principle, by a lawyer being permitted to continue to practise while under a charge of attempting to pervert the course of justice.
77 If a lawyer under a charge of that kind continues to practise, without more being known, I accept that issues of public confidence will arise. But in this case there is more. The public are also taken to know about the presumption of innocence and the public should be taken to know the matters that I have identified as countervailing matters, in particular: that the allegation in this case is more than six years old, the allegation is denied, no evidence supporting the allegation has been placed before the Court, and the Board is not saying that Ms Tricarico presents any sort of risk of reoffending.
78 There is also a public interest, and a corresponding public confidence issue, in ensuring access for people in the legal system to legal representation for imminent court proceedings and avoiding disruption to the administration of justice in imminently listed matters before the Court, particularly ones involving issues of liberty.
79 The balance here is best struck by preventing Ms Tricarico from undertaking her usual legal practice. She should be supervised. She should not be taking on any new clients or any new matters for pre-existing clients. She should have the minimum scope of practice needed to avoid disruption to the administration of justice. In my view, she should be allowed to represent her current clients in their current matters and to do so under a restricted nature of practice - under the supervision of Mr Andrianakis.
80 These measures would, in my assessment, sufficiently ameliorate any loss of public confidence in the administration of justice that would otherwise occur and would ensure the minimum disruption to the administration of justice.
81 Another necessary matter, as I have said, is that there must be a speedy hearing of this matter. So, if a stay is to be granted on the conditions that I have indicated, it is also necessary that the plaintiff, Ms Tricarico, must undertake through her counsel to be ready for trial by 16 April.
[1] [2001] NSWCA 284; (2001) 52 NSWLR 279; [2001] NSWSCA 284 ('Cummins').
[2] For example, see Elliott v Minister Administering Fisheries Management Act 1994 [2018] NSWCA 123, [93]-[95] (Beazley P, Basten and Payne JJA agreeing); Council of the City of Ryde v Azizi [2019] NSWSC 1605, [171]-[175] (Payne J); Harding v Sutton [2021] VSC 741, [144]-[145] (Richards J).
[3] See Harding v Sutton [2021] VSC 741, [144]-[145] (Richards J); cf Celestina v Secretary of the Department of Environment, Land, Water and Planning [2019] VSC 717, [27] (Ginnane J).
[4] For example, Administrative Law Act 1978, s 9.
[8] Ibid [4], [23]-[26] (Gageler CJ, Gordon, Gleeson and Jagot JJ).
[9] [2015] VSCA 276, in particular, [31]-[32] (Cavanough AJA) ('Maund').
[11] [2008] VSCA 122 [19]-[27] (Dodds-Streeton JA).
[14] Section 11(3) of the Legal Profession Uniform Law Application Act 2014 (NSW) specifies that the designated tribunal for the purposes of s 100 of the Legal Profession Uniform Law (NSW) is the Supreme Court of New South Wales. In Victoria, the designated tribunal for s 100 of the Uniform Law is VCAT: Legal Profession Uniform Law Application Act 2014 (Vic) s 10(3).
[16] Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5 [12], [22], [23] (Gageler CJ, Gordon, Gleeson and Jagot JJ); see also [54] (Edelman J).
[18] (Unreported, Federal Court of Australia, 21 June 1996).
[19] [2021] NSWSC 1263 ('XY').
[25] [2012] HCA 61; (2013) 249 CLR 332, [30].
Tricarico
Victorian Legal Services Board [2025] VSC 189
(2001) 52 NSWLR 279
(1998) 72 ALJR 869
(1962) 108 CLR 620
(1985) 159 CLR 550
(2013) 249 CLR 332