Court of Appeal (Vic)|2013-12-17|Before: Mr J, Warren CJ, Neave JA

These proceedings are not concerned to protect the revenue. These proceedings are concerned with what Mr Somosi's default reveals about his character and fitness. No doubt the taxation authorities are and were primarily concerned to get what they can. These authorities will no doubt consider issues of punishment for purposes of general deterrence. However, the jurisdiction which this Court is exercising is a protective jurisdiction. It is not directed at punishment. It is not concerned with revenue collection.[82]

104 In the above analysis there are a number of issues identified in the authorities as important in evaluating an appropriate penalty. These include:

105 The appellant submitted that his offending was at the lower end, that he had not intended to defraud the ATO, he had avoided declaring bankruptcy, and he had paid a significant amount of his tax debt and was committed to paying the rest.

106 The respondent submitted that the authorities show that where a legal practitioner ignored or deliberately avoided his civic obligations regarding tax lodgement and payment he suffered substantial penalties, primarily suspension. Further, he noted in cases where the conduct did not result in suspension there were exceptional circumstances. He argued that in Turner, the respondent was in the twilight of his career and was no longer particularly active in the profession. In Long, he submitted that the respondent had a serious mental illness that was not treated, unlike in this case where he noted that Ms Matthews' report did not indicate any serious mental illness during the time of his charged conduct. Additionally, he noted that Mr Long had displayed remorse. Finally, with regards to Moore, the respondent submitted that this case had a number of extenuating circumstances including alcohol and gambling addiction. He also noted Mr Moore's exemplary conduct while in bankruptcy where he worked very hard to ensure his creditors were repaid. In conclusion, he submitted that the penalty was within the range when assessing the extenuating circumstances of cases that did not result in long-term suspensions.

107 In our view, the decision of the Tribunal in this matter was plainly outside the range of penalties as imposed in this and other jurisdictions. In a time of national practices it is desirable for there to be consistency in penalties between jurisdictions. In addition, there is the expectation of comity between intermediate appellate courts.[83] There are a number of factors to consider.

108 First, the appellant did not intend to defraud the Commonwealth. The Tribunal even accepted that there was no such intention.[84] Unlike other cases the appellant's non-payment was not a result of a deliberate effort to deceive the ATO. It was a case where the appellant put his head in the sand and ignored his obligations.

109 Secondly, the appellant has not declared bankruptcy. While there was significant debate at the hearing on this issue and more will be said below[85], we consider this course of action represents a strong mitigating factor. While the appellant was, as noted by the respondent, simply paying his debts, his decision to do so is contrasted with those[86] who chose to resort to bankruptcy, resulting in non-payment of a large debt to the Commonwealth.

110 Thirdly, the appellant has now repaid his debt. At the time of the Tribunal hearing he had repaid $736,070.74. By the time of the appeal PIA2 had been completely repaid, though he still owes substantial tax to the ATO. While the Court in Somosi noted that the purpose of the proceeding is not to maximise the return to the ATO, here the appellant has acted with a significant level of integrity since his charged conduct.[87] That repayment is contrasted with many cases where the accused has simply declared bankruptcy before any moneys were repaid or only a small amount returned.[88]

111 Fourthly, while the respondent sought to differentiate the mental health issues in lenient cases with this one, it should be noted that in Ms Matthews' opinion the appellant had significant gambling issues during the time of his charged conduct. This is another factor that courts have taken into account when assessing the appropriate penalty.[89]

112 On the other side of the coin, it is important to observe the appellant's apparent lavish lifestyle and his lack of candour with the respondent. These are factors that should be seen as aggravating features.

113 While it is not necessary to decide this ground as the discretion has already been re-opened on the double penalty ground, in our view, the penalty imposed by the Tribunal was outside the range and manifestly excessive. His conduct is more analogous to the cases of Pillay and Long, in that there is significant remorse, and rehabilitation, along with no indication of a deliberate attempt to defraud the Commonwealth. This is unlike the cases of Cummins and Stevens.

114 As the double penalty ground is made out, it follows that the penalty is set aside and the appellant falls to be resentenced. There are a number of factors this Court has to take into consideration when setting an appropriate penalty. In this assessment, the Court's main concern is whether the appellant is a fit and proper person to currently practise as a barrister.[90]

115 The appellant submitted that his conduct, the character references tendered at the Tribunal, and his guilty plea all show his significant remorse. He relied on the character references which were tendered and are outlined above.[91] These references speak to the appellant's fitness to practise, his commitment to his family and his changed behaviour since starting a family and attempting to put his affairs in order. At the Tribunal hearing, one of the appellant's character references, a judge of the County Court, his Honour Judge O'Neill, stated:

I think he has done an enormous amount, turned his life around, and I think there's no doubt in his early years at the Bar, I remember not long after we completed the Bar Reader's Course he was a person who enjoyed the social aspects of life very much, he's always enjoyed a drink, enjoyed going out to lunch with friends and I think that has really changed. He's an absolutely committed family man. You hear him talk of the joy that his children brings you - brings him, it's quite extraordinary, and he's so committed to attempting to turn around this problem by paying back the amount he owes the Taxation Department.

116 Secondly, the appellant contended his guilty plea showed contrition and remorse. Thirdly, entering into a PIA and continuing to repay his debt demonstrated his commitment to showing himself to be a fit and proper person to practice as a barrister.

117 In response, the respondent made two points. First he questioned the remorse on the basis of the continuing failure of the appellant to comply with his civic obligations. He noted that there was no explanation as to how the appellant had accrued a further debt to the ATO of almost $600,000. Secondly, he questioned the weight to be given to that remorse when the appellant failed to give a first hand account. This argument mirrors the Tribunal's explanation on this point. The Tribunal stated that the character references were of limited benefit because of the appellant's failure to give evidence. The Tribunal relied on the following statement of Tobias JA in NSW Bar Association v Meakes[92] to substantiate this point:

It is true that in professional disciplinary proceedings the onus of proving misconduct lies with the party bringing the charges and, it should be noted, a practitioner is not required to give evidence. However, as this court observed in Coe v NSW Bar Association [2000] NSWCA 13, there is an expectation that legal practitioners will mount the witness box to provide some explanation as to the conduct, rather than simply relying upon evidence from the Bar table.[93]

118 The Tribunal's assessment of the appellant's remorse, especially his guilty plea, was in error. The appellant's contrition and plea of guilty, in principle, indicates significant remorse for his conduct. This principle is clear from a number of authorities.[94] Further, as the appellant noted in his oral argument, the plea of guilty somewhat distinguishes the case of Meakes from this one. While a failure to give evidence in this type of proceeding can diminish the extent of remorse, the extensive character evidence cannot be ignored. The indirect evidence of his remorse is not diminished by his failure to give evidence. It is simply not enhanced by a frank explanation of his conduct and a direct expression of apology.

119 The appellant's remorse is sufficiently established on the other evidence before the Tribunal, particularly his decision to accept the full responsibility for the debt rather than the legally available option of bankruptcy.

120 The delay between the beginning of the respondent's investigation into the appellant's conduct and the final orders by the Tribunal was unfortunate and due to the failure of both parties to comply with their obligations relating to disciplinary investigations. Whilst both sides sought to blame each other for substantial parts of the delay, the appellant sought to rely on it as a strong mitigating factor.

121 The appellant submitted that the delay had a number of effects that should be taken into account in handing down a penalty. First, the appellant submitted that the Court should focus its attention on the appellant's rehabilitation, his conduct during that time. In particular, the appellant relied on the comments of Maxwell P in R v Merrett & Ors:[95]

The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes 'a powerful mitigating factor'. In particular, it focuses attention on issues of rehabilitation and fairness.[96]

122 The appellant contended that it would not be fair to suspend him from practice for three years, more than four years after he commenced to repay his tax debt. He has now completed that repayment obligation with income derived from continuing to practice during the delay period.

123 In light of this, the appellant submitted that the significant repayment, the extinguishment of PIA2 and the continued commitment to repay all his debts are important factors the Court must look at, and that the Tribunal erred in its assessment of the effect of delay and the appellant's rehabilitation.

124 Secondly, he contended that the Tribunal erred in attributing substantial blame to the appellant for the delay while ignoring the respondent's role. He submitted that if a court is to be critical of his non-cooperation they must also balance that against what the respondent did or failed to do.

125 In response, the respondent argued that the Tribunal took into account the delay and applied the appropriate legal principles in assessing the appellant's rehabilitation over that time. He submitted first that the appellant's repeated failure to respond to almost all of the requests for information as well as adjournments sought by the appellant at the hearing was the main cause of delay. In making this argument he relied on the decision of the Court of Appeal in R v Talia[97], which held that the mitigatory impact of delay is weakened where it can be attributable to the accused.

126 Secondly, the respondent relied on the Tribunal's findings in relation to the rehabilitation of the appellant, that while he had made a substantial repayment of his debt, the appellant had not complied with his obligations after the charged conduct to lodge his income tax returns and BAS statements on time.

127 In our view, for a regulator to protect the public interest, it is unacceptable that it took almost four years from the time the investigation started to the end of the Tribunal hearing. The offending was disclosed to the Bar Ethics Committee in March 2008, but the Tribunal application was not initiated until March 2011. Matters of this sort should be brought to justice quickly. The failure to prosecute expeditiously is not satisfactorily explained by the appellant's failures or delay in responding to the allegations. The respondent had sufficient facts for prosecution of the appellant long before the time at which he made its application to the Tribunal.[98] All that was required was to give the appellant a reasonable opportunity to respond, which in fact had been provided by October 2008. The respondent's explanation that it was delayed by the appellant's failure to respond until March 2011 is inadequate.

128 Delay having occurred, attention should focus on what the appellant did during that period. In particular from initiation of the Tribunal proceeding in March 2011 until the hearing of the appeal, the appellant completed paying all of the tax, interest and penalties in relation to the relevant offending. He was enabled to implement his choice to attempt to repay the debt. The delay afforded him that opportunity. The respondent may be disinterested in protecting the revenue but that is not the point. The respondent acquiesced in that course of events.

129 The repayment of PIA2 and the appellant's continued ability to repay his more current tax debts is a central issue in assessing an appropriate penalty. The appellant submitted that the Tribunal erred in failing to give adequate weight to the enormous task of repayment that the appellant had undertaken. Further, he submitted that a penalty such as the one imposed by the Tribunal would preclude the appellant from repaying the rest of his debts to the ATO. This is because a period of suspension of three years would make returning to practice almost impossible, rendering repayment an unattainable task.

130 The respondent submitted that the Tribunal took into account the substantial repayment provided by the appellant and appropriately weighed it alongside the continuing non-compliance after the charged conduct, including failure to lodge BAS statements and income tax returns on time. He further argued that the evidence before the Tribunal regarding the appellant's income did not show that it was necessary for the appellant to forego his current tax liabilities in preference to repaying his debt because it appears he could have paid both. Finally he submitted, relying on Somosi, that it is not the role of these proceedings to protect the revenue of the Commonwealth.

131 While the management by the appellant of his tax affairs after the charged conduct has not been exemplary, in our view his significant repayment was not awarded due weight by the Tribunal. To simply accept it in the reasons as a mitigating factor and then enter into a discussion about the failure to lodge returns after the charged conduct reflects the relatively minor weight that the repayment factor was given.[99] The Tribunal's overall analysis of the repayment and rehabilitation of the appellant was unduly harsh. It seems to have been driven by the respondent's uncompromising views as to how the Tribunal should deal with the appellant's absence from the witness box. The Tribunal stated:

The Tribunal accepts the submission of Applicant's Counsel that the evidence of the Respondent's rehabilitation would be expected to include direct evidence about his remorse; steps he had taken to make restoration for his past conduct; and importantly, evidence that he was no longer engaging in conduct of the kind that is the subject of the charges. In short, in assessing whether the Respondent has undergone a significant change in his lifestyle as alleged, and whether such change is meaningful in the context of his current compliance with his obligations under tax law, the Tribunal was entitled to expect to hear evidence from the Respondent, to the effect that he no longer fails to file income tax returns and BAS in a timely manner; and that he pays his assessed income tax and GST liabilities in a timely manner.[100]

132 This approach failed to address the proper question of present fitness to practise that was before the Tribunal.

133 Indeed the appellant's repayments are a much more significant factor than the Tribunal recognised. The evidence of continuing failings with tax compliance through the course of PIA1 and PIA2 suggested imperfect rehabilitation, not a failure to rehabilitate at all. The magnitude of the undertaking exposed and continues to expose the appellant to the risk of incomplete performance. It is unsurprising that he has stumbled. However, he remains committed to expunging his tax debt. Accepting that obligation and doing his imperfect best is consistent with good prospects of rehabilitation and positively reflects his intention to accept the obligation and commit to making restitution for his past conduct. That is a relevant, and significantly favourable factor in assessing whether the appellant is now a fit and proper person, which is the correct question.

134 The appellant argued that a long suspension would financially ruin him, prevent him from repaying his current debts and cripple his family. He noted that his current debt to the ATO stood at $598,257.80 and to remove him from practice for any significant period would make repayment impossible. Further, the appellant submitted that his family relied heavily on his income and that his only profession was as a barrister.

135 The respondent opined that it may be possible for the appellant to work as a law clerk or in some other capacity. The respondent also argued that the appellant did not provide any evidence of his financial position or his family's and thus it was impossible to take this into account.

136 While the argument is not central to the question of penalty, the effect of the penalty should be given due consideration. There was some conjecture at the appeal hearing as to whether the appellant could pick up where he left off. It is clear that a suspension of the kind that the Tribunal imposed would have a severe effect on the ability of the appellant to earn an income and repay the ATO. Further, it would be extremely difficult for a barrister to experience three years away from practice and be able to pick up his practice where he left off.

137 During argument, the Court was informed that the appellant had separated from his wife, although he expressed hope for reconciliation. Whatever be the appellant's future in that respect, he is now a father and we accept that his parental responsibilities, which remain, are important to him.

138 Having said this, it is important to observe that the appellant did not provide any evidence to the Tribunal or this Court as to his financial position or his ability to access funds. Prompted by this Court, the appellant divulged that the appellant's former partner now works four days a week and earns approximately $50,000 per year. Therefore, it was submitted, the deleterious effect of the penalty should be balanced with the failure of the appellant to provide appropriate information as to the real effect of such a penalty.

139 The appellant submitted that the decision of the appellant not to enter bankruptcy and to continue to repay his debts was a clear mitigating factor that was not given enough weight by the Tribunal. He contended that his decision displayed two important factors. The first is that it demonstrated the appellant's remorse in that he was willing to make amends for his previous conduct. Secondly, it maximised the amount that was repaid to his creditor, instead of the more limited arrangements that come under bankruptcy. In making this second point, the appellant relied on the comments of de Jersey CJ in Legal Services Commissioner v Hewlett.[101] In that case the respondent solicitor did not pay taxes for 11 years, had a $914,572 debt and, importantly, declared bankruptcy. Chief Justice de Jersey noted the importance of Mr Hewlett's bankruptcy:

It is also significant that in his subsequent negotiations with the ATO, the respondent was not proposing to pay all of the outstanding liability, even over a period of years. He was offering a lesser amount. The result of his bankruptcy is to limit forever the amount recoverable by the ATO, with the inevitable result that the respondent's fellow taxpayers will be out of pocket.[102]

140 The respondent sought to characterise the decision of the appellant to avoid a declaration of bankruptcy in two ways. The first was to suggest the appellant simply decided to pay his debts. In no way was this behaviour commendable, it was simply the appellant complying with the law. Secondly, the appellant was acting in his own self-interest. As a show cause event under s 2.4.27 of the Act, a declaration of bankruptcy could result in the appellant being sanctioned by the Victorian Bar or the respondent. Therefore, he argued such a decision did not necessarily represent the honourable course of action. Finally, he also rejected the submission of the appellant that the Tribunal gave no weight to the bankruptcy, noting it only ignored the intentions the appellant sought to infer from the decision; the Tribunal he argued, took into account the significant repayment as a mitigatory factor.

141 As already observed, the decision to declare bankruptcy was misunderstood by the Tribunal.[103] The respondent's submissions on this issue were unpersuasive. The ongoing future commitment to clear this large tax debt consequent on the decision not to clear the debt by bankruptcy was properly characterised by the appellant as conduct undertaken to expunge the effects of his wrongdoing. Furthermore, to repeat, a decision to repay the amount under the charged conduct and continue to pay represents a more honourable course of action. While the respondent set out some benefits to avoiding bankruptcy, the continued spectre of a tax debt must equally be seen as weighing on the decision. What should be said is that this course of action represented both a willingness to atone for previous conduct as well as maximising the return to creditors. The importance of working hard to ensure the maximum return to creditors was noted by the Tribunal in Moore[104] and in this case it should be seen as a factor in the appellant's favour.

142 The respondent placed significant weight on the behaviour of the appellant in explaining the severity of the penalty. In particular he relied on three important factors.

143 First, the appellant's lack of candour with the Victorian Bar and the respondent. The respondent submitted that the appellant's behaviour when communicating with the Bar and the respondent showed a lack of integrity that is deserving of severe punishment. In doing so he relied on the finding of the Tribunal as to the appellant's lack of integrity:

The Tribunal also accepts that the Respondent has demonstrated a lack of candour in dealing with his regulators, reflecting a lack of integrity, which constitutes another aggravating factor.

(b) The Respondent's failure or refusal to respond at all for a lengthy period to the Applicant's request for information during the investigation; and

(c) The Respondent's refusal to answer legitimate requests even where further explanation was given of the basis for the requests.[105]

144 In relation to the letter to the Victorian Bar, as observed earlier[106], this conduct should be given its own separate penalty and should not be considered an aggravating factor to the conduct in Charge 1. The appellant sought to argue that a fair reading of the letter showed that it was not intended to mislead. He submitted that while the letter contained the claim that he had 'diligently attended to the lodgement of returns since 2005', it also set out a number of penalties the appellant had received for late lodgement of BAS since 2005.[107]

145 We are unpersuaded by this submission. While the letter shows an inconsistency, in our view, the appellant intended to mislead the Victorian Bar. For an individual to indicate that there has been diligent attendance to the lodgement while failing on a number of occasions to do so is inexcusable. In NSW Bar Association v Butland[108], Judge McGuire clearly set out this duty and what it entails:

Secondly, even if the Barrister's conduct was careless and not deliberate, this constitutes no sufficient excuse in the circumstances. When a barrister is responding to a Bar Association request for information and assistance in respect of a complaint being investigated by the Bar Association, the barrister owes a duty of candour. Carelessness, or perhaps more properly recklessness, as to whether or not the information supplied in those circumstances is correct will not satisfy the barrister's obligation to co-operate and to respond with candour.[109]

146 The appellant failed to comply with this duty, and despite the excuse proffered by the appellant, he will be separately penalised for his failings.

147 The appellant's conduct in relation to the respondent is more concerning. The appellant accepted that he was uncooperative with the respondent, that he had put his head in the sand for some time instead of attempting to resolve the issue. The respondent submitted that this conduct showed a reckless disregard towards his obligations to the respondent. He noted that not only had the appellant failed to respond, in his letter dated 8 July 2010, he refused to provide certain information on the basis that it was outside the subject matter of the investigation. Such conduct, the respondent argued, was not just silence but an act of defiance to the authority of the respondent.

148 The obligation of a legal professional to respond to the regulator is set out both in common law and in statute. In NSW Bar Association v Thomas[110], Kirby P noted the obligation in relation to the NSW Bar Association, an organisation that has similar regulatory powers in NSW as the respondent:

The duty of honesty and frankness on the part of a barrister under investigation extends to the investigative steps immediately anterior to the consideration of a case by the court or by a tribunal appointed for that purpose.[111]

149 The Act also outlines this obligation in s 4.4.11:

(1) An investigating authority may require an Australian legal practitioner who is subject to an investigation under this Division to provide -

(a) a full written explanation of the practitioner's conduct; and

and to verify the explanation, information or documents by statutory declaration or another manner specified by the investigating authority.

(2) The power referred to in subsection (1)(b) is exercisable -

(b) so far as the power relates to the provision of documents - also at any time after the investigation but before the commencement of the hearing by the Tribunal of any charge resulting from the investigation.

150 The appellant's conduct in relation to the respondent's requests for information was unacceptable. A barrister owes a special duty of candour to the regulator in order to ensure that it can competently oversee the profession and ensure public confidence. The requests for information were reasonable, while the respondent in our opinion did not follow up those requests appropriately, the appellant was given ample time to respond and comply. In considering an appropriate penalty, this type of conduct weighs in favour of a suspension both on the basis of specific and general deterrence.

151 Secondly, the respondent and the Tribunal placed much weight on the failure of the appellant to give evidence at the hearing. The Tribunal noted, in relation to the respondent's submission on this point:

In contrast to what would be expected, the Respondent's approach in this case, was not to give evidence to assist the Tribunal in determining whether he is in fact rehabilitated. Instead, he has put forward and relied on others to speak about his rehabilitation.[112]

152 The failure to give evidence was used in a variety of ways to the detriment of the appellant. It was used to undermine the rehabilitation claim of the appellant, his remorse and the reasons behind his failure to lodge returns either during the period of the charged conduct, or the time between the charged conduct and the hearing.

153 The respondent relied on a number of authorities to demonstrate the obligation of the appellant to provide an explanation for his conduct. He argued this was particularly important given the indirect means by which the appellant attempted to show he had been rehabilitated and was now a fit and proper person to practise as a barrister.

154 The appellant submitted that a failure to give evidence cannot be used in a way to further penalise him. He argued that notwithstanding the failure to give evidence he could rely on the evidence that was before the Tribunal and this Court. The appellant submitted that the Tribunal erred in dismissing or giving less weight to the evidence at the hearing on the basis that he did not appear to give evidence to provide further information.

155 While there is no authority to suggest it is a duty of a legal practitioner to give evidence in a disciplinary tribunal, it is open for this Court to question that failure, especially where an accused is seeking to positively show they are fit and proper to practise. In Re Veron: Ex parte Law Society of New South Wales[113], the NSW Court of Appeal noted:

The respondent is an officer of the Court...disciplinary proceedings in this jurisdiction in the state have always been conducted upon affidavit evidence and not otherwise. They are not conducted as if the Law Society ... was a prosecutor in a criminal cause or as if we were engaged upon a trial of civil issue at nisi prius. The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument.[114]

156 Similar comments were made by Tobias JA in Meakes:

Yet these were the very matters which were wholly within the knowledge of the respondent and which he was [sic] did not offer to answer in the witness box. On the contrary, he chose the safety of the well of the Tribunal. Notwithstanding the advice of his then senior counsel, the respondent's refusal to enter the witness box and provide evidence with respect to the matters referred to should have been the subject of harsh criticism by the Tribunal. Moreover, if that evidence had otherwise been relevant to the issue, his refusal to provide it would have significantly detracted from the weight to be attached to the tendered character references. In these circumstances, the only inferences one can draw from the respondent's refusal to sworn testimony in this matter was that his evidence would not have assisted his case in resisting a finding of professional misconduct.

In my opinion the failure of the respondent to give sworn evidence was

157 The resolution to this matter sits somewhere in between the competing submissions of the respondent and the appellant. The respondent is correct to say that the forensic decision of the appellant not to provide a full explanation left the Tribunal with the unenviable task of attempting to piece together the evidence available to it to provide a complete picture of the appellant's evidence. Further, it was open to the Tribunal, as it is open to us, to question the veracity of the claims of rehabilitation and remorse because the appellant did not provide it with any first hand explanation as to his charged conduct or the rehabilitation he has allegedly undergone.

158 On the other hand, the appellant is correct in noting that it is not open to a court or disciplinary tribunal to simply ignore the other evidence put on the grounds that the appellant could provide a more complete explanation by giving direct evidence.

159 In assessing an appropriate penalty, the appellant's failure to give evidence does somewhat diminish his claims as to rehabilitation and remorse. However, it should not be seen as eliminating those matters altogether, especially considering the weight of evidence pointing the other way from character references and the appellant's conduct in repaying his ATO debt.

160 Thirdly, as to the lavish lifestyle, the wilful non-compliance with taxation obligations and frivolous spending, those matters are aggravating factors in sentencing. Such a reckless disregard for his obligations calls for a suspension from practice.

161 Without diminishing the significance of the appellant's conduct, it is not in the category of misconduct that brings directly into question the security of a client's interests or his technical competence as a practitioner. There is nothing to suggest that protection of the community is called for. What is at risk is whether community confidence in the integrity of members of the legal profession continues to be threatened. When assessing the appellant's responses to his offending behaviour, the key issue is whether the appellant is now a fit and proper person to practise as a barrister.

162 It follows from the preceding analysis that the appellant is not a fit and proper person to currently practise. His failure to comply with his obligations, refusal to cooperate with the respondent, continuing issues with tax compliance and failure to give an account of his failings at the Tribunal all point to this conclusion. The appellant's conduct attracts suspension. However, his circumstances are such that his future practice should be governed for a time by conditions that should assist his rehabilitation.

163 The imperfections in the course of his rehabilitation, and the uncharged subsequent conduct, do not preclude, but rather condition, how his subsequent rehabilitation to being a fit and proper person should be assessed and managed. Once it is accepted, as we do, that he has demonstrated his remorse, and is working hard at rehabilitation with reasonable prospects of achieving a return to being a fit and proper person, a disposition that encourages that outcome is consistent with the protective function of the jurisdiction.[116] This is particularly the case when one looks at the evidence of Ms Matthews in her letter dated 28 February 2012:

In summary Mr Stirling has been through an extended unsettled period but he has now settled in the context of: (a) a secure base, provided by a supportive relationship and the establishment of a family, and (b) self-imposed discipline in regards to his behaviour, profession and obligations. In the writer's opinion the behaviours of concern to the Applicant [the respondent] have been significantly decreasing since 2005 and have now largely resolved and are unlikely to return.

164 In summary, we would allow the appeal and impose a fresh penalty. In imposing a new penalty, we would impose conditions on any practising certificate that may be given to the appellant after the term of his suspension is completed. Those conditions will endure for a period of five years and require the appellant on returning to practice:

to engage an accountant to prepare his tax returns and BAS;
to report to the respondent, within seven days, that he has lodged his income tax returns and BAS, and to also provide a copy to the respondent of any correspondence with the ATO relating to tax compliance;
to create a separate bank account where 50 per cent of all fees will be deposited, and cannot be disbursed otherwise than to the ATO or another entity with the respondent's permission;
to maintain accounting principles acceptable to the respondent, undertake courses on practice accounting management; and
to attend not less than five hours of counselling.

165 The reason for attaching conditions is two-fold. First and foremost, it recognises the protective purpose of disciplinary proceedings. The conditions ensure that the appellant will comply with his obligations or he will lose his right to practise. It ensures public confidence in the profession, by managing the appellant's return to practice. Secondly, the conditions seek to facilitate rehabilitation. They provide the appellant both with the tools to ensure that he lodges his tax returns on time and make adequate provision to pay his tax debts, as well as engaging with the respondent to guarantee sufficient oversight. Finally, the conditions contain a significant penalty provision such that if the appellant does not comply then the two year suspended part of his sentence will be reinstated. This is a balanced approach.

166 We order, that on Charge 1 the appellant be suspended from practice for a period of 30 months, with 24 of those months being suspended for a period of five years.

167 We also order on Charge 3 that the appellant be reprimanded.

168 Finally, we order that the practising certificate issued to the appellant on the completion of the remaining suspension be subject to the conditions we have indicated.

169 On the issue of costs, when orders were made on 2 October 2013 there were submissions as to costs. In all the circumstances of this matter we consider that there should be no order as to costs. The appellant has been successful. However, matters were put before the court in a more amplified manner by his counsel than before the Tribunal. The court was assisted by the articulation of the appellant's case such that matters were clarified in a manner not readily apparent or explained to the Tribunal. That said, we do not consider the costs of the appeal should fall on the unsuccessful party. Furthermore, although successful the appellant remains subject to a stern penalty and stringent conditions. Thus, no order as to costs will be made

The appeal be allowed.
Orders 4 and 5 made by the Victorian Civil and Administrative Tribunal ('the Tribunal') on 28 March 2012 be set aside and in lieu thereof:
1. On Charge 1, pursuant to s 4.4.17(b) of the Legal Profession Act (2004)('the Act') the local practising certificate of the Appellant be suspended for a period of 30 months to commence on 1 December 2013 ('the head suspension period').

24 months of the head sentence be wholly suspended for a period of 5 years ('suspended order period'). During the suspended order period, a local practising certificate may be granted to the Appellant.

During the suspended order period, the Appellant shall not engage in or commit any act of professional misconduct or unsatisfactory professional conduct.

Pursuant to s 4.4.17(d) and 4.4.19 of the Act the following conditions ('conditions') be imposed from the date of this order and on each of the Appellant's local practising certificates during the suspended order period:
1. The Appellant must engage an accountant to prepare and file his annual tax return, all Instalment Activity Statements or Business Activity Statements, and Annual GST Return ('returns and statements'), such engagement of an accountant and its reasonable terms shall be approved by the Legal Services Commissioner.
2. The Appellant must certify in writing to the Legal Services Commissioner, by no later than 7 days after the date on which such returns and statements must ordinarily be lodged and any moneys payable thereunder be paid, if such dates be different, that such returns and statements have been lodged and any moneys payable thereunder have been paid, or produce evidence, satisfactory to the Legal Services Commissioner, that the Australian Taxation Office has agreed to extend the time for compliance or payment.
3. The Appellant must forthwith on receipt provide to the Legal Services Commissioner a copy of any correspondence, statement, or notice from the Australian Taxation Office concerning any issue of compliance with Australian taxation laws that is received by him, or his accountant.
4. The Appellant must set up and maintain a separate bank account and instruct his clerk when banking any fees received on his behalf to remit not less that 50% of his gross fee receipts, after clerk's fees and practice deductions made directly by his clerk, into that account. The creation of the account is to be done within 7 day of this order. Without limiting the Appellant's obligation to pay moneys to the Australian Taxation Office, the practitioner must not disburse funds from this account other than to the Australian Taxation Office or as it directs, save with the consent of the Legal Services Commissioner.
5. The Appellant's practice is subject to an annual inspection by the Legal Services Commissioner or his delegate, at such time and place as the Commissioner may reasonably specify, for the purpose of determining whether the Appellant is complying, or has complied, with this order or any condition of his practising certificate.
Pursuant to s 4.4.17(d) and 4.4.19 of the Act the following further conditions ('conditions') be imposed from the date of this order and on the first of the Appellant's local practising certificates to be issued during the suspended order period:

(i) The Appellant must implement and maintain such accounting and administrative practices as are required in the management of the Appellant's practice to ensure compliance with the conditions specified in order 2(d) above as the accountant engaged under order 2(d)(i), and the Chairman of the Ethics Committee of the Victorian Bar Council or his or her delegate, may advise.

(ii) By no later than three months after resuming practice on or after the date determined by order 2(b), the Appellant shall undertake such course or courses of further legal education in practice accounting and management, including taxation accounting and compliance obligations, as is or are recommended by the Chairman of the Ethics Committee of the Victorian Bar Council or his or her delegate.

(iii) The Appellant shall participate in not less than 5 hours of counselling with the counselling service initiated by the Health and Wellbeing Committee of the Victorian Bar or, at his expense, with such other counsellor as may be agreed between the Appellant and the Chairman of the Ethics Committee of the Victorian Bar Council or his or her delegate.

In the event that the Appellant fails to comply with any condition set out in order 2(c), 2(d), or 2(e) during the suspended order period, the Legal Services Commissioner may make an application to the Tribunal to revoke the suspended order period. In the event that the Tribunal is satisfied that a material breach of this order has occurred during the suspended order period, order 2(b) is vacated and the Appellant's practising certificate shall be cancelled and a local practising certificate shall not be granted to the appellant before the expiry of the head suspension period or that period and any further period from the date of the Tribunal's finding of breach of this order that the Tribunal may determine, having regard to the circumstances of the breach of this order.

On Charge 3, the appellant is reprimanded pursuant to s 4.4.19(k) of the Act.
The Appellant file and serve a further affidavit by 4.30pm on 4 October 2013.

[1] Legal Services Commissioner v Matthew Stirling [2012] VCAT 347 ('Reasons') [231]-[233].

(a) the local practising certificate of the Respondent to be suspended, with the period of suspension to commence on 18 May 2012; and

(b) a local practising certificate not be granted to the Respondent until 17 May 2015.

[3] On 16 May 2012, by consent of the parties, the Tribunal delayed the implementation of Order 4 until 22 June 2012 (and then until 16 August 2012) to allow for the hearing of the application for leave to appeal.

Tax Administration Act 1953(Cth)

Stirling v Legal Services Commissioner [2013] VSCA 374 (17 December 2013)

Legal Services Commissioner v Matthew Stirling [2012] VCAT 347

LEGAL PRACTITIONERS - Disciplinary proceedings - Appeal against VCAT suspension - Appellant suspended for three years - Professional misconduct by barrister - Failure to make provision and failure to report income and other tax for eight years - Whether global approach to penalty breaches common law rule in Ryan v The Queen - Whether use of charged conduct in a separate charge was a double penalty - Whether penalty was manifestly excessive - Discretion re-opened - Re-sentenced to 30 months suspension with 24 months suspended - Ancillary orders for conditions to be placed on any future practising certificate granted to the appellant - Ryan v The Queen [2000] HCA 46; (2000) 203 CLR 452; Pearce v R [1998] HCA 74; (1998) 194 CLR 656; LSC v Moore [2010] VCAT 742.

Stirling v Legal Services Commissioner [2013] VSCA 374

At a glance

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Before

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Judgment (103 paragraphs)

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Legislation Cited (2)

Cases Cited (5)

Stirling v Legal Services Commissioner [2013] VSCA 374 (17 December 2013)