's 75 Application'. The VLSC's response of 17 December 2021 is referred to as the 'VLSC's Submissions'. The further submissions by Ms Chen of 13 January 2022 are referred to as the 'Reply'.[11] 15. Ms Chen disputes the findings of professional misconduct. This is clear from her correspondence since 26 February 2020, her Supreme Court appeal, her submissions in support of discovery, and the submissions in support of this application for summary dismissal. 16. In this s 75 Application, Ms Chen contends that the disciplinary proceeding against her amounts to an abuse of process, and that the Tribunal does not have jurisdiction to conduct it. 17. As described below, the s 75 Application is based on a combination of allegations of falsifying and tampering with evidence by the VLSC's legal representatives; alleged breaches of process by the VLSC in investigating the matter and in bringing the case against her; and alleged errors of law in the VCAT decision of 26 February 2020. 18. For the reasons set out below, Ms Chen's application for summary dismissal is refused. In effect, it seeks that VCAT review its own findings of professional misconduct, which it does not have power to do. As Justice Ginnane determined, VCAT needs 'to complete its statutory task under s 302'of the Uniform Law. That is, having made findings, to proceed to conduct a further hearing and then make orders on the question of penalty. Once that decision has been made, Ms Chen can consider the decision as a whole (findings and penalty). If at that point she wishes to do so, she may file an application for leave to appeal under s 148 of the VCAT Act.

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

1. Ms Chen contends that the VLSC's submissions are based on errors in the nature of abuse of process. In her Reply, she referred to Victoria International Container Terminal Limited v Lunt,[12] in which the decision of Kiefel CJ, Gageler, Keane and Gordon JJ cited the following words of French CJ, Gummow, Hayne, Crennan and Kiefel JJ in PNJ v The Queen:[13]

It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:

(a) the invoking of a court's processes for an illegitimate or collateral purpose;

(b) the use of the court's procedures would be unjustifiably oppressive to a party; and

(c) the use of the court's procedures would bring the administration of justice into disrepute.

1. It appears from her Reply that Ms Chen relies particularly on the bases set out at (b) and (c) above.
2. In relation to the contention that the Tribunal lacks jurisdiction, I understand Ms Chen's position to be that the case against her is 'misconceived' under s 75(1)(a), due to errors she says occurred in the complaint, investigation and disciplinary prosecution processes.[14]

302 Determination by designated tribunal - disciplinary matters

(1) If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, the designated tribunal finds that the lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the designated tribunal may make any orders that it thinks fit, including any of the orders that a local regulatory authority can make under section 299 in relation to a lawyer and any one or more of the following -

[various penalty orders are then set out at s 302(1)(a)-(l)].

1. The disciplinary charges brought by the VLSC concern conduct by Ms Chen which occurred both before and after the coming into operation of the Uniform Law, on 1 July 2015. Prior to that, the Legal Profession Act 2004 (2004 Act) governed the regulation of the profession in Victoria. Under the applicable transitional provisions, this proceeding is conducted under the Uniform Law..
2. Because the 'offence provisions in each are relevantly the same',[15] it seems likely that the fact that the conduct straddles the point where the Uniform Law came into operation will make no difference in practical terms.[16]

1. The s 75 Application and the Reply filed by Ms Chen include wide-ranging contentions and allegations. In summary, she alleges:
   • The VLSC commenced the disciplinary proceeding against her on the basis of four false statutory declarations prepared by the VLSC's investigators.[17] The statutory declarations referred to were those sworn by the husband, the two counsel and the opposing solicitor in the family law proceedings.
   • During the disciplinary proceeding, the VLSC's counsel prepared seven witness statements and outlines of evidence which 'not only created but also substantively tampered with the witnesses' evidence'.[18]
   • The evidence given at the VCAT disciplinary hearing by a witness was 'tampered and contradictory' such that it was not safe to rely on for the purposes of proving Charge 1 against her.[19]
   • VCAT's analysis in relation to Charge 7 was deficient. There was insufficient basis, and VCAT's ruling did not sufficiently explain its chain of reasoning for its finding, that she had provided false and/or misleading information to the VLSC. Also, the decision did not specify whether the conduct was found to be deliberate, reckless or careless.[20]
   • After lunch on the third day of the VCAT hearing (18 July 2018) counsel for the VLSC announced that a negotiated resolution had been reached. In fact, Ms Chen submitted, 'There was no plea agreement being reached nor was there agreement reduced to writing and sign off on the deal'. This amounted to an abuse of process. It had the effect of delaying the continuation of the disciplinary proceeding against her for another year. [21]
   • The complaint from the opposing solicitor in the family law proceedings which gave rise to the charges against Ms Chen could not validly form the basis of disciplinary proceedings brought against her. Nor is it apparent that the VLSC had conducted the investigation on her own motion.[22]
   • The person who carried out the investigation on behalf of the VLSC had not been given (and perhaps was not eligible to be given) a proper delegation. There was no investigation report. No proper opportunity was given to Ms Chen to provide a response before the allegations were filed against her at VCAT. The responses which she did provide to the VLSC's 'Murray letter', and the other explanations provided by her, were not given proper weight.[23]
   • In investigating the matter, the VLSC breached s 462(1) of the Uniform Law by providing her detailed response to the Commissioner of 20 March 2017 to four of the witnesses.[24]
   • The VLSC's investigation was malicious and not properly carried out.[25]
   • On a proper analysis, there was insufficient evidence to support Charge 7, and the conduct of the VLSC's counsel contributed to an incorrect finding against her on that charge.[26]
2. The second ground on which the application was made was that the Tribunal has no jurisdiction to conduct this proceeding. I understand that is based on the contentions relating to defects in the complaint, investigation and disciplinary prosecution processes referred to above.

1. The VLSC argued that the power of summary dismissal was no longer available to Ms Chen to exercise in relation to the Tribunal's findings. In relation to this, its submissions were as follows (including footnotes): [27]

The Tribunal's summary dismissal power

...

1. The power to summarily dismiss a proceeding expressly provides that it may be exercised at any time. It is not confined to being made during the interlocutory stage of a proceeding and it may be made during the substantive hearing of the proceeding.[28]
2. Having said that, it remains a power to "summarily dismiss". As such, an application under s 75(1) ought to be made at an appropriate time.[29] The Tribunal has already conducted and completed the 4 day hearing into the conduct of the respondent and made findings of professional misconduct by her. This was pursuant to stage one of the Tribunal's statutory task under s 302(1) of the Uniform Law. All that remains is for the Tribunal to exercise its discretion as to the issue of penalty after hearing from the parties. The Tribunal cannot now "summarily dismiss" findings which have been made, which is essentially what the respondent invites the Tribunal to do. As such, it is not an appropriate time for the summary dismissal application to be made.
3. In addition, the Commissioner contends that the power in s 75(1) cannot be used to "re-open" or "set-aside" findings made pursuant to the exercise of power under a s 302(1) of the Uniform Law. That would transform the summary dismissal power in s 75(1) into a power of appeal.
4. As a creature of statute, the Tribunal has no inherent powers.[30] It cannot simply set aside findings made in compliance with a statutory task under an enabling enactment.
5. Further, there is no power under the VCAT Act for the Tribunal to determine an appeal of its own orders or findings made by the Tribunal after applying an enabling enactment. The Tribunal is only empowered to reopen "orders" in very confined circumstances (see ss 120 and 120A of the VCAT Act) and to correct mistakes in "orders" (see s 119 of the VCAT Act).
6. Lastly, s 75 of the VCAT Act does not provide the Tribunal with a source of power to grant a permanent stay of a proceeding.[31] The summary dismissal application seeks to invite the Tribunal to review and set aside the findings or to permanently stay the proceeding.
7. The Commissioner respectfully contends that the matters the respondent now raises under the guise of a summary dismissal application are really matters concerning whether the findings should have been made in the first place. The respondent's submissions that there was no basis for the proceeding to have been brought against her, her submissions going to the evidence before the Tribunal and how the Tribunal ought to have treated that evidence and her submissions that she is not guilty of professional misconduct, are all matters relating to stage one of the Tribunal's statutory task in the proceedings, not stage two.
8. During stage one the respondent had the opportunity to make arguments concerning such matters. She was represented by senior counsel. Evidence was tested and submissions were made (as is revealed in the transcript of the hearing and the submissions filed by her then counsel). Indeed, in her own supplementary submissions dated 22 July 2019 (not signed by her counsel), the respondent raised numerous serious allegations without foundation and which were not the subject of evidence at the hearing. The respondent also produced documents in her submissions and made assertions for the first time, including as to matters that were not put to witnesses. The Commissioner objected to the respondent's supplementary submissions and documents[32] and, in all of the circumstances, it is unsurprising that the Tribunal did not make findings of the nature sought by the respondent in her supplementary submissions.
9. Without expressly saying so, the respondent appears to be seeking to "re-run" the liability hearing under the guise of a summary dismissal application. That should not be permitted to occur. It is apparent from her submissions that the respondent fails to accept the Tribunal's serious findings against her. Her failure to accept the findings is a matter which is relevant to the issue of whether the respondent is remorseful or has developed insight: both issues are relevant to the question of penalty.
10. The Tribunal has completed the hearing into respondent's conduct and it has made findings. It has received evidence including witness evidence (both oral and documentary), it has received submissions and it has made findings. The Tribunal's findings extend to findings as to the credibility and reliability of the witness, [the husband], and the respondent herself (see paragraph [17] of the Tribunal's written reasons for decision).
11. The Commissioner submits that by her summary dismissal application, the respondent essentially invites the Tribunal to "re-open" the liability hearing, "review" the findings of professional misconduct and "set-aside" the findings or otherwise "permanently stay" the proceeding so that stage two of its statutory task never occurs. The Commissioner contends that the summary dismissal power in s 75(1) of the VCAT Act does not empower the Tribunal to do any of these things.
12. Second, the VLSC argued that even if the power to summarily dismiss is available here, it should not, in the circumstances, be exercised. The VLSC said:

The Tribunal ought not grant the application in any event

1. Even if the Tribunal considers that the summary dismissal power is available to be exercised at this stage of the proceedings, it nevertheless remains a power reserved for the rarest of cases and a high degree of caution must be exercised before the power is exercised.[33]
2. Notably, the power to summarily dismiss a proceeding (or part of it) is only enlivened if the Tribunal forms an "opinion" that the proceeding (or part of it) is unjustified in the sense that it is "frivolous, vexatious, misconceived or lacking in substance" or "is otherwise an abuse of process".
3. The Commissioner respectfully contends it is not open to the Tribunal, having made findings that the respondent is guilty of professional misconduct, to form the requisite opinion to enliven the summary dismissal power. Having made the findings, it cannot now be said that the proceeding is "frivolous, vexatious, misconceived or lacking in substance" or that the proceeding "is otherwise an abuse of process", such that it ought not be permitted to continue.
4. To the contrary, the findings made against the respondent demonstrate that the proceedings were and remain justified. In disciplinary proceedings, the Tribunal has an important protective function[34] to determine the appropriate penalty to be imposed following findings against the practitioner. This important function remains to be performed.
5. In any event, the Commissioner submits the issues raised in summary dismissal application are wholly without any foundation...
6. The VLSC submission went on to deal with the various bases on which Ms Chen's summary dismissal application was based, as follows:
   • In relation to the announcement on day three of the hearing that a resolution had been reached, the VLSC said this was consistent with ordinary practice in courts and tribunals. More significantly, there was no opposition by Ms Chen's counsel. In fact, her counsel agreed with the procedural directions then proposed by the Tribunal, to facilitate the matter proceeding as a plea, rather than as a contest.[35]
   • The delay between days 3 and 4 of the hearing occurred in circumstances where Ms Chen subsequently decided that she no longer wished to plead guilty to Charges 1 and 7. In any event, that delay is not a basis for summary dismissal.[36]
   • The allegations that the VLSC's legal representatives tampered with, and falsified evidence are scandalous and entirely unfounded. Given that they were not put to the relevant witnesses during cross-examination (in particular, during cross-examination of the VLSC's investigator), nor raised by her counsel in submissions, they should not be put now.[37]
   • Contrary to Ms Chen's assertions, Charges 1 and 7 were properly grounded, she was afforded procedural fairness during the investigation and in the making of the decision to bring the case against her.[38]
   • Relevant decisions made during the investigation were made by officers holding the requisite delegations.[39]
   • There was jurisdiction for the Tribunal to deal with the Commissioner's application and the Tribunal was plainly satisfied that this was so. The Respondent cannot now complain about such matters under the guise of a summary dismissal application. In any event, her submissions concerning jurisdiction are without foundation.[40]
   • There has been no breach of s 462(1) of the Uniform Law.[41] The disclosure of relevant information during the course of an investigation is permitted by s 462(2)(a) and (f) of the Uniform Law.[42]

1. I find the submissions of the VLSC persuasive.
2. The Tribunal has made definitive findings in its decision of 26 February 2020 on the question of whether Ms Chen is guilty of Charges 1 and 7. The only way in which she can have them overturned at this stage is by way of appeal to the Supreme Court. But, as Ginnane J found, that cannot occur until the Tribunal has conducted the second stage of its function, namely, the determination of penalty, and the making of orders giving effect to it under s 302 of the Uniform Law.
3. Ginnane J said at [66]:

The decision of VCAT in this matter could certainly be regarded as finally determining, subject to any appeal after making orders, the issue of whether Ms Chen was guilty of the charges.

1. The time has passed when fundamental matters of the type relied on by Ms Chen may be raised to seek to prevent findings being made against her. Findings have been formally made, and these necessarily infer an acceptance that the Tribunal has jurisdiction, and that the charges were properly brought. With regard to these matters, the Tribunal is, in effect, 'functus officio'.
2. The only task remaining within the applicable legislative framework now, is for the Tribunal to determine penalty. As Ginnane J said at [76]: 'VCAT must continue with the proceeding to complete its statutory task under s 302 of the [Uniform Law].'
3. At this point, any revisiting of the findings would amount to the Tribunal conducting a review of its own decision. It would amount to conducting an appeal on questions of law under the guise of a s 75 application.
4. Finally, it is not clear whether by her application, Ms Chen is seeking a permanent stay of the disciplinary proceeding against her. However, to the extent it does, as correctly stated in the VLSC's Submissions, this is something the Tribunal does not have power to order.
5. Additionally, even if a s 75 application could be brought in the circumstances of this case, the matters relied on by Ms Chen fall well short of satisfying me that an order summarily dismissing the disciplinary proceeding brought against her should be made. No sufficient basis for the serious allegations she made against the VLSC's representatives was apparent. Those allegations were not raised by her counsel during the hearing.[43] They depend on proving that two members of counsel and an instructing solicitor swore statutory declarations which were false, at the behest of the VLSC's investigator.[44] No statement by her counsel has been produced supporting her assertion that no agreement had been reached on the third day of the hearing. On the contrary, the transcript plainly indicates her counsel endorsed the statement that an agreement had been reached.[45] The contention that the Tribunal's analysis concerning Charge 7 was insufficient may be an appeal point, but it is not a ground for summary dismissal. The allegations concerning tampering and falsification of the evidence of the husband and other witnesses, to the extent they relate to Charge 1, may also be appeal points. The contentions that s 299(2)(b) and s 462 have been breached appear on their face to be incorrect.
6. The s 75 Application is refused. The associated application for costs is refused. Ms Chen also requested that the Tribunal refer two individuals to the Victoria Police.[46] Without considering the question of whether the Tribunal has power to do so in the circumstances of this case, given the above, such a referral would not be not appropriate here.
7. This matter will now be set down for a hearing, by video-conference, on the question of penalty. The VLSC has already provided its submissions on penalty, on 20 April 2021. I will give Ms Chen a further opportunity to file and serve any material on which she seeks to rely relevant to penalty.

[1] Victorian Legal Services Commissioner v Ms Xiao Yi Chen AKA Anna Chen v [2020] VCAT 238, (Senior Member Butcher).

[2] The Uniform Law is given effect in Victoria by the Legal Profession Uniform Law Application Act 2014.

[3] The delay between days 3 and 4 occurred in a context where the Tribunal was advised a plea agreement had been reached on day 3, 18 July 2018, on narrowed allegations reached between the parties, including as to penalty, but which Ms Chen subsequently advised she did not agree to. Nevertheless, the VLSC determined to proceed on the narrowed down Charges 1, 2 and 7 only, with Charges 3, 4, 5 and 6 being withdrawn (VLSC's submissions, [35]). The VLSC filed a further amended application for order (dated 31 January 2019) on 3 July 2019. Charge 2 fell away as it was an alternative to Charge 1.

[4] While the expression 'penalty' is often used in relation to professional disciplinary proceedings, this is to be understood as applying within the specific professional disciplinary context (as opposed to criminal prosecution) where the paramount concern is the protection of the public. See Stirling v Legal Services Commissioner [2013] VSCA 374, especially at [57]-[75], (Warren CJ, Neave JA and Dixon AJA).

[5] Namely, orders of 11 March, 14 May and 2 September 2021.

[6] The VLSC's investigator (who subsequently became the VLSC's instructing solicitor in the case) was cross examined by Mr Morrissey SC in relation to the process of preparation of witness statements, including that the witness statements of the three lawyers were drafted in very similar language, representing the investigator's terms, rather than the witnesses's. But that did not extend to specifically putting allegations of tampering and falsification, as would be required (Transcript, p 76-100).Also, there is an indication in the transcript that these related to charges which were not proceeded with (Transcript at 192-3). The final submissions by Mr Morrissey dealt with the reliability of the evidence of the husband and Ms Chen respectively, rather than suggesting that any issues concerning the preparation of witness statements or statutory declarations relating to any other witnesses should be taken into account by the Tribunal before making a determination on the question of whether Charges 1 and 7 were proved.

[7] Yi Chen AKA Anna Chen v Victorian Legal Services Commissioner [2020] VSC 842.

[8] The only order that been made on 26 February 2020 was one requiring the parties to notify the Tribunal of their available dates the purpose of hearing submissions on disposition.

[9] Ms Xiao Yi Chen AKA Anna Chen v Victorian Legal Services Commissioner [2020] VSC 842 at [76].

[10] The VLSC was represented by different counsel for the discovery application, and has been since.

[11] The Tribunal's order made in the Directions Hearing on 16 November 2021 indicated the matter would be determined on the papers subject to any further order, with the parties having the option to seek a different course. Ms Chen indicated on 20 January 2022 that a further hearing would cause her 'severe prejudice'. In the event, it has not been necessary to convene a further oral hearing.

[12] [2021] HCA 11 [14].

[13] [2009] HCA 6; (2009) 83 ALJR 384 at 385-386 [3].

[14] In accordance with, for example, Guida v Toll Ipec Pty Ltd [2010] VCAT 539 at [7].

[15] Xiao Yi Chen AKA Anna Chen v Victorian Legal Services Commissioner [2020] VSC 842 at footnote 10 (paragraph [17]).

[16] Additionally, the transitional provisions have the effect that no action may be taken against a practitioner which is more onerous than could have been taken under the 2004 Act (see cl 27(6) of Schedule 4 to the Uniform Law).

[17] See in particular [2], [7]-[12] and [74]-[89] of the s 75 Application.

[18] See in particular [3], [94]-[174] of the s 75 Application. And also [73]-[97] and [94]-[122] of the Reply (including in relation to the actions of the solicitor for the VLSC).

[19] See in particular [7]-[12] of the s 75 Application.

[20] See in particular [13]-[17] of the s 75 Application.

[21] See in particular [18]-[27] of the s 75 Application and [34]-[48] of the Reply.

[22] See in particular [28]-[37], [55]-[65] of the s 75 Application and [14]-[15] of the Reply.

[23] See in particular [38]-[50] of the s 75 Application and [23]-[33] and [56]-[62] of the Reply. At [58] of her Reply, Ms Chen relies on the VLSC's obligation under s 299(2)(b) of the Uniform Law, but this only applies to determinations of 'unsatisfactory professional conduct' made by the VLSC (as opposed to determinations of professional misconduct made by VCAT).

[24] See in particular [90]-[93] of the s 75 Application and [49]-[55] of the Reply.

[25] See in particular [66]-[73] of the s 75 Application.

[26] See in particular [175]-[195] of the s 75 Application.

[27] VLSC's submission at [14]-[27].

[28] Weber v Deakin University & Ors [2016] VSC 640, [46] (McMillan J); Weber v Deakin University & Ors [2018] [2018] VSCA 53.

[29] Dilcan Pty Ltd v Black & Silver International Pty Ltd [2004] VCAT 1619 at [16].

[30] Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559, [126] (Weinberg JA).

[31] Maltall Pty Ltd v Bevendale Pty Ltd (1998) 14 VAR 368; Luciz Pty Ltd v Sheedy [2004] VCAT 2355 at [34].

[32] Applicant's objection submission dated 24 July 2019.

[33] Arshad Ali Khan v Victorian Civil and Administrative Tribunal [2018] VSCA 351, [87]; State Electricity Commission (Vic) v Rabel [1998] 1 VR 102.

[34] Quinn v Law Institute of Victoria [2007] VSCA 122; (2007) 27 VAR 1, [30]-[31].

[35] VLSC's Submissions at [29]-[33].

[36] VLSC's Submissions at [34]-[35].

[37] VLSC's Submissions at [36]-[41].

[38] VLSC's Submissions at [42]-[48].

[39] VLSC's Submissions at [49]-[52].

[41] The VLSC's Submissions refer to s 461, but this appears to be a typographical error.

[42] VLSC's Submissions at [54]-[55].

[43] As noted, the VLSC's investigator was cross-examined about the similar wording being used in the statutory declarations drafted for the three lawyers. But that did not extend to specifically putting allegations of tampering and falsification, as would be required (Transcript, p 76-100).

[44] Also, it is noted, the evidence of those witnesses was not tendered or relied upon, and they were not called, apparently as a result of the VLSC determining not to proceed with Charges 3,4,5, and 6 (see Transcript at 192-3).

[46] See s 75 Application at [54], Reply at [113].