1. The respondent is found guilty of professional misconduct within the meaning of section 4.4.3(1)(b) of the Legal Profession Act 2004 (the Act) for engaging in conduct that justifies a finding that he was not a fit and proper person to engage in legal practice namely his following conduct in not meeting his taxation obligations:

(a) he did not lodge on time income tax returns for each of the financial years from 1 July 1998 to 30 June 2009, which would have disclosed professional income he had earned for that financial year;

(b) his convictions on 4 August 2011, 28 February 2012 and 28 August 2012 for tax offences for failing lodge on time income tax returns for each of the financial years from 1 July 1998 to 30 June 2009;

(c) him not having discharged on time and not by at least 23 November 2012 his obligation to pay amounts owing for income tax owing for the financial years from 1 July 1998 to 30 June 2009.

1. The respondent is found guilty of professional misconduct within the meaning of section 4.4.3(1)(b) of the Act for engaging in conduct that justifies a finding that he was not a fit and proper person to engage in legal practice namely his following conduct in not complying with the orders of a court:

(a) his failure to comply with the orders of the Magistrates' Court made on 4 August 2011 that he lodge his income tax returns for each of the financial years from 1 July 1998 to 30 June 2009 on before 14 November 2011;

(b) his convictions on 28 August 2012 in the Magistrates' Court;

(c) his failure to pay the $30,000 fine which he was ordered to pay by the Magistrates' Court on 28 February 2012.

1. The respondent is found guilty of professional misconduct within the meaning of section 4.4.3(1)(a) of the Act for wilfully or recklessly failing to comply with section 2.4.27 of the Act in respect of him having been found guilty of tax offences on 4 August 2011, 26 February 2012 and 28 August 2012.

1. The respondent is found guilty of professional misconduct within the meaning of section 4.4.3(1)(a) of the Act for wilfully failing to comply with section 4.4.11(1)(a) of the Act by not responding to the Applicant's request pursuant to section 4.4.11(1)(a) of the Act for a written explanation, which was made by letter dated 17 August 2012

1. For alternative charges to charge 1 and charge 3 respectively, these charges are dismissed as unnecessary.

1. In relation to charges 1, 3 and 5 the respondent is not to be granted a practising certificate enabling him to practise law or otherwise to engage in legal practice in any Australian jurisdiction for a period of five years from the date of these orders.
2. A recommendation is made to the Supreme Court of Victoria pursuant to section 4.4.17(a) of the Legal Profession Act 2004 that the respondent's name be removed from the local roll.
3. In relation to charge 6, the respondent is reprimanded.

1. The respondent is to pay the applicant's costs of this proceeding, including reserved costs, on a standard basis on the County Court Scale, failing agreement to be assessed by the Costs Court.

1. The respondent was admitted to legal practice on 1 March 1976.
2. The respondent:

1. is and was at all relevant times an Australian lawyer; 2. was from 12 December 2005 to 21 November 2012 an Australian legal practitioner within the meaning of section 1.2.3(a) of the Legal Profession Act 2004 (Vic.) (the Act);

1. at all relevant times up to 11 December 2005 was a legal practitioner within the meaning of the Legal Practice Act 1996 (Vic);

1. has engaged in legal practice at all relevant time; 2. has not held a Victorian practising certificate since 21 November 2012; 3. has not applied for a practising certificate in Victoria since 21 November 2012; and 4. does not hold a current Victorian practising certificate.

Paragraphs 3 to 52 are drawn from the Application for Orders filed by the applicant. A telephone number and an email address have been redacted.

1. During the period from 1 July 1998 to 30 June 2009, the respondent received income from professional fees as payment for legal services provided by him (the professional income).
2. Soon after the end of each of the financial years from 1 July 1998 to 30 June 2009, the respondent was legally obliged to lodge on time with the Australian Taxation Office (ATO) income tax returns, which - if lodged - would have disclosed the professional income he had earned in that financial year.
3. The respondent did not discharge his legal obligations to lodge income tax returns on time with the ATO for each of the financial years from 1 July 1998 to 30 June 2009.
4. In about May 2011 the respondent was charged with 11 charges of breaching section 8C(1)(a) of the Taxation Administration Act 1953 (Cth) in respect of his failure as at 10 November 2010 to lodge income tax returns on time for each of the financial years from 1 July 1998 to 30 June 2009.

1. On 4 August 2011 the Magistrates' Court made orders:

(a) convicting the Respondent of breaching section 8C(1)(a) of the Taxation Administration Act 1953 (Cth) in respect of his failure as at 9 November 2010 to lodge income tax returns on time for each of the financial years from 1 July 1998 to 30 June 2009;

(b) the Respondent lodge his outstanding income tax returns for each of the financial years from 1 July 1998 to 30 June 2009 on or before 14 November 2011.

1. The Respondent's convictions, as referred to in paragraph 7:

(a) were in respect of tax offences within the meaning of section 1.2.1. of the Act; and

(b) arose from his failure to discharge his legal obligation to lodge on time with the ATO his income tax return for the financial years from 1 July 1998 to 30 June 2009.

1. In breach of the order of the Magistrates' Court made 4 August 2011, the Respondent did not lodge his income tax returns for the financial years from 1 July 1998 to 30 June 2009 on or before 14 November 2011.
2. On 28 February 2012 the Magistrates' Court:

(a) convicted the Respondent of breaching section 8C(1)(a) of the Taxation Administration Act 1953 (Cth) in respect of his failure as at 15 November 2011 to lodge income tax returns on time for each of the financial years from 1 July 1998 to 30 June 2009;

(b) fined him $30,000 as part of an aggregate conviction including $10,000 additional penalty with $114.10 costs.

1. The Respondent's convictions, as referred to in paragraph 10:

(a) were in respect of tax offences within the meaning of section 1.2.1. of the Act; and

(b) arose from his failure to discharge his legal obligation to lodge on time with the ATO his income tax return for the financial years from 1 July 1998 to 30 June 2009.

1. In about December 2011 the Respondent was charged with 11 charges of breaching section 8H of the Taxation Administration Act 1953 (Cth) for failing to comply with an order pursuant to section 8G of the Taxation Administration Act 1953 (Cth) - namely the orders of the Magistrates' Court made 4 August 2011 - in respect of his failure as at 15 November 2011 to lodge income tax returns for financial years from 1 July 1998 to 30 June 2009.
2. On 28 August 2012 the Magistrates' Court

(a) convicted the Respondent of breaching section 8H of the Taxation Administration Act 1953 (Cth) in respect of his failure as at 15 November 2010 to lodge income tax returns on time for each of the financial years from 1 July 1998 to 30 June 2009;

(b) fined him $1,100 as part of an aggregate order with $305.18 costs.

1. The Respondent's convictions, as referred to in paragraph 13:

(a) were in respect of tax offences within the meaning of section 1.2.1. of the Act; and

(b) arose from his failure to discharge his legal obligation to lodge on time with the ATO his income tax return for the financial years from 1 July 1998 to 30 June 2009.

1. Not before 28 August 2012, the respondent lodged income tax returns for each of the financial years from 1 July 1998 to 30 June 2009 and was assessed as owing income tax.
2. As at 4 December 2013 the respondent had not:

(a) paid any or alternatively all of the income tax that he owed on his assessed income for each of the financial years from 1 July 1998 to 30 June 2009;

(b) paid the fine of $30,000 referred to in sub-paragraph 10(b).

1. The Respondent was required by section 2.4.27 of the Act to provide to the Legal Services Board:

(a) a notice of any show cause event within 7 days of the event; and

(b) within 28 days of the event a written statement explaining why despite the show cause event he was a fit and proper person to hold a practising certificate.

1. The Respondent's convictions in the Magistrates' Court on 4 August 2011 were show cause events.
2. The Respondent did not comply with section 2.4.27 of the Act in respect of the show cause events being his convictions in the Magistrates' Court on 4 August 2011 as:

(a) he did not provide a notice of show cause event within 7 days of the event;

(b) he did not provide within 28 days of the event a written statement explaining why despite the show cause event he was a fit and proper person to hold a practising certificate; and

(c) further to sub-paragraph (a), instead he provided a notice of show cause event dated 29 June 2012 on or about that date, in which he first gave notice of his convictions in the Magistrates' Court on 4 August 2011.

1. The Respondent's convictions in the Magistrates' Court on 28 February 2012 were show cause events.
2. The Respondent did not comply with section 2.4.27 of the Act in respect of the show cause events being his convictions in the Magistrates' Court on 28 February 2012 as:

(a) he did not provide a notice of show cause event within 7 days of the event;

(b) he did not provide within 28 days of the event a written statement explaining why despite the show cause event he was a fit and proper person to hold a practising certificate; and

(c) further to sub-paragraph (a), instead he provided a notice of show cause event dated 29 June 2012 on or about that date, in which he said that:

(i) a show cause event had happened to him in that he had been found guilty of a tax offence;

(iii) the Magistrates' Court had fined him on 28 February 2012.

1. The Respondent's convictions in the Magistrates' Court on 28 August 2012 were show cause events.
2. The Respondent did not comply with section 2.4.27 of the Act in respect of the show cause events being his convictions in the Magistrates' Court on 28 August 2012 as:

(a) he did not provide a notice of show cause event within 7 days of the event;

(b) he did not provide within 28 days of the event a written statement explaining why despite the show cause event he was a fit and proper person to hold a practising certificate; and

(c) further to sub-paragraph (a), instead he provided a notice of show cause event dated 29 June 2012 on or about that date, in which he said that:

(i) a show cause event had happened to him in that he had been found guilty of a tax offence;

(iii) he said the Magistrates' Court had fined him on 28 February 2012 and it had been stayed until 27 August 2012.

1. On about 17 August 2012 the Applicant commenced an investigation of the Respondent pursuant to section 4.4.8 of the Act.
2. The Applicant sent a letter dated 17 August 2011 to the Respondent at the address which he last gave as the address for his legal practice in which he:

(a) gave notice that he had commenced an investigation of the Respondent pursuant to section 4.4.8 of the Act;

(b) set out the conduct the subject of the investigation; and

(c) requested pursuant to section 4.4.11(1) of the Act that the Respondent provided a full written explanation of his conduct within 21 days.

1. By 20 October 2012, the Respondent did not respond to the Applicant's letter dated 17 August 2012.
2. On 2 October 2012, Mr Greg Trewin, a complaints and investigation officer employed by the Applicant, visited Suite 1108/530 Little Collins Street, being the last known address for the Respondent. He observed that it appeared to be unoccupied.
3. On 18 October 2012 Mr Trewin obtained apparent email and mobile telephone contact details for the Respondent:
4. On 23 October 2012 Mr Trewin sent an email to the respondent in which:

(a) he attached a further copy of the Applicant's letter dated 17 August 2012; and

(b) noted that no response had been received from the Respondent to the Applicant's letter dated 17 August 2012 and asked that an urgent response be provided.

1. On 23 October 2012, the Respondent telephoned Mr Trewin and they spoke. During the telephone conversation the Applicant said, relevant to the investigation:

(a) he had not previously received the Applicant's letter dated 17 August 2012;

(b) he was in Queensland until the middle of the following week and he would respond after then;

(c) on being asked for a Victorian address, he said he would provide one with his response;

1. By 13 November 2012, the Respondent had not provided a response to the Applicant's letter dated 17 August 2012.
2. On 13 November 2012, Mr Trewin sent an email to the Respondent in which:

(a) he noted the lack of the response to the Applicant's letter dated 17 August 2012; and

(b) sought an urgent response from the Respondent to the Applicant's letter dated 17 August 2012.

1. By mid-November 2012, the Respondent had not provided any response to the Applicant's letter dated 17 August 2012.
2. In mid-2012, Mr Trewin discovered that the Respondent appeared to have a new Victorian address being Level 40, 140 William Street, Melbourne.
3. On 15 November 2012 Mr Trewin attended at Level 40, 140 William Street, Melbourne and observed that it was serviced offices. He asked a receptionist on the floor for the Respondent and was told that he was not presently available. He left his contact details with the receptionist with the request that she pass them on to the Respondent and ask him to contact him.
4. On 16 November 2012 the Respondent telephoned Mr Trewin twice. The first time he left a message saying he was in Queensland and would call back within an hour. The second time the Respondent and Mr Trewin spoke and the Respondent said, relevant to the investigation:

(a) he has been waiting to finalise financial matters via his accountant to pay the ATO. He hopes to have this done by the middle of the following week;

(b) he promised to provide his written response to the Applicant's letter dated 17 August 2012 by 23 November 2012.

1. On 23 November 2012 the Respondent sent to the Applicant a facsimile dated 23 November 2012 in which he said that he was currently making arrangements with his accountant to finalise taxation matters and that he was arranging for property interests to be liquidated to finalise all matters. He said he would be able to provide all details within the next 14 days.
2. Despite the Respondent's promise that he would provide all details within 14 days of his facsimile dated 23 November 2012, he did not.
3. On 7 February 2013 Mr Trewin sent the Respondent an email asking for him to update following his facsimile dated 23 November 2012.
4. As at 26 March 2013, the Applicant had not received any response from the Respondent about his letter dated 17 August 2012 or the further details promised in the Respondent's facsimile dated 23 November 2012.
5. On 26 March 2013, Mr Trewin visited Level 40, 140 William Street for the purpose of trying to speak with the Respondent. The Respondent was not present and Mr Trewin left a message for the Respondent to contact him.
6. On 26 March 2013 the Respondent telephoned Mr Trewin and left a message for him to call.
7. On 27 March 2013 the Respondent telephoned Mr Trewin and they spoke. Relevant to the investigation, Mr Trewin made a further request for a response to the Applicant's letter dated 17 August 2012.
8. On 27 March 2013 Mr Trewin sent an email to the Respondent in which he confirmed the request for a response to the Applicant's letter dated 17 August 2012.
9. On 26 July 2013 the Applicant sent an email to Mr Henderson requesting confirmation that he has lodged all tax returns for the period for which he was prosecuted by the ATO. As at the date of the filing of this application, no response has been received.
10. On 18 October 2013 the Applicant sent the Respondent a letter about the investigation; advised that the investigation had been expanded; and offered him the opportunity to make by 8 November 2013 any further submission he wished about the conduct the subject of this investigation before a decision was made under section 4.4.13 of the Act.
11. On 8 November 2013 the Respondent rang Mr Trewin and said that he would like to meet to discuss the Applicant's letter dated 18 October 2013. He said that he would ring again when he was in Melbourne to set a time for the meeting. He subsequently did.
12. On 29 November 2013 the Respondent attended at the Applicant's office and he met with Mr Trewin. At the meeting, amongst other things:

(i) he had done the wrong thing by not lodging his income tax, and said that after not lodging his tax return for the financial year ending 30 June 1999 that the issue had snowballed especially with marriage failure;

(iii) he still owed the ATO about $130 to 140,000 from the 11 tax returns he lodged;

(iv) some of his tax documents had been stolen so he had estimated his tax income at $35,000 a year;

(v) he had recently set up a crane business in Queensland but it failed;

(vi) he had not paid the $30,000 fine imposed by a court. He feels the fine was way over the normal for circumstances like his;

(ii) the Respondent signed a document which was meant to authorise the Applicant to obtain from the ATO copies of any records they required about his tax affairs.

1. After the meeting, the Applicant sought to obtain from the ATO documents about the Respondent's tax affairs but it refused to provide any.
2. On 30 January 2014 Mr Trewin sent the Respondent an email requesting copies of his tax returns for 30 June 1999 to 2010 and subsequent assessment notices.
3. On 5 February 2014 Mr Trewin made a telephone call to the Respondent reminding him of his email dated 30 January 2014.
4. As at the date of filing this application, the Respondent has not provided a written response to the Applicant's letter dated 17 August 2012 or Mr Trewin's email dated 30 January 2014.

1. Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act for engaging in conduct that justifies a finding that the Respondent was not a fit and proper person to engage in legal practice namely his following conduct in not meeting his taxation obligations:

(a) he did not lodge on time income tax returns for each of the financial years from 1 July 1998 to 30 June 2009, which would have disclosed professional income he had earned for that financial year;

(b) his convictions on 4 August 2011, 28 February 2012 and 28 August 2012 for tax offences for failing lodge on time income tax returns for each of the financial years from 1 July 1998 to 30 June 2009;

(c) him not having discharged on time and not by at least 23 November 2012 his obligation to pay amounts owing for income tax owing for the financial years from 1 July 1998 to 30 June 2009.

1. Further and alternative to charge 1, professional misconduct as defined at common law for engaging in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable namely his following conduct in not meeting his taxation obligations:

(a) he did not lodge on time income tax returns for each of the financial years from 1 July 1998 to 30 June 2009, which would have disclosed professional income he had earned for that financial year;

(b) his convictions on 4 August 2011, 28 February 2012 and 28 August 2012 for tax offences for failing lodge on time income tax returns for each of the financial years from 1 July 1998 to 30 June 2009;

(c) him not having discharged on time and not by at least 23 November 2012 his obligation to pay amounts owing for income tax owing for the financial years from 1 July 1998 to 30 June 2009.

1. Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act for engaging in conduct that justifies a finding that the Respondent was not a fit and proper person to engage in legal practice namely his following conduct in not complying with the orders of a court:

(a) his failure to comply with the orders of the Magistrates' Court made on 4 August 2011 that he lodge his income tax returns for each of the financial years from 1 July 1998 to 30 June 2009 on before 14 November 2011;

(b) his convictions on 28 August 2012 in the Magistrates' Court;

(c) his failure to pay the $30,000 fine which he was ordered to pay by the Magistrates' Court on 28 February 2012.

1. Further and alternative to charge 3, professional misconduct as defined at common law for engaging in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable namely his following conduct in not meeting his taxation obligations:

(a) his failure to comply with the orders of the Magistrates' Court made on 4 August 2011 that he lodge his income tax returns for each of the financial years from 1 July 1998 to 30 June 2009 on before 14 November 2011;

(b) his convictions on 28 August 2012 in the Magistrates' Court;

(c) his failure to pay the $30,000 fine which he was ordered to pay by the Magistrates' Court on 28 February 2012.

1. Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act for wilfully or recklessly failing to comply with section 2.4.27 of the Act in respect of him having been found guilty of tax offences on 4 August 2011, 26 February 2012 and 28 August 2012.

1. Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act for wilfully failing to comply with section 4.4.11(1)(a) of the Act by not responding to the Applicant's request pursuant to section 4.4.11(1)(a) of the Act for a written explanation, which was made by letter dated 17 August 2012

Paragraphs 59 to 64 record the applicant's submissions verbatim

1. Senior Member Smithers requested, at an earlier directions hearing, for submissions about two potential transitional issues.
2. The first issue arises because the application is made pursuant to the Legal Profession Act 2004 (Vic) (the 2004 Act), which was the operative Act at the time the application was commenced, but since the application was made, and on 1 July 2015, section 158 of the Legal Profession Uniform Law Application Act 2014 (the 2014 Act) repealed the 2004 Act.
3. Despite its repeal, the application can and must be heard under the 2004 Act for the following reasons:

(a) the applicant, on commencing the application under the 2004 Act, had a substantive right, and the application of ss 14(2) of the Interpretation of Legislation act 1984 (Vic) has the effect that, unless a contrary intention appears from the 2014 Act, the repeal of the 2004 Act does not prevent the continuation of the application under that Act or the imposition of a penalty under that Act: see Felman v Law Institute of Victoria [1998] 4 VR 324, 332-336 and the cases cited there, particularly Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430, 440-441; and Law Institute of Victoria v Maric [2008] VSCA 46, [85] to [94].

(b) the 2014 Act cannot be said to give rise to an intent contrary to the continuation of the application under the 2004 Act or the imposition of a penalty under that Act: Schedule 4 of the 2014 Act deals with savings and transitional provisions. Clause 2(1) of that Schedule provides that, '[e]xcept where the contrary intention appears, this Schedule does not affect or take away from the Interpretation of Legislation Act 1984 of Victoria; other parts of Schedule 4 further support that the 2004 Act applies to the application: see clauses 2(4) and (5).

1. The Tribunal's decisions since 1 July 2015, although not expressly addressing the issue, have all been predicated on the basis that an application for order filed under the 2004 Act shall be heard under that Act.
2. The second issue arises as the conduct the subject of the application took place between 1 July 1998 and 23 November 2012 and thus the impugned conduct occurred during the operation of two Acts that regulated the conduct of legal practitioners.

1. In respect of conduct from 1 January 1997 up to 12 December 2005, the Legal Practice Act 1996 (Vic) (the 1996 Act) applied. Part 4.4 of the Legal Profession Act 2004 (Vic) (the 2004 Act) commenced operation on 12 December 2005, and it replaced the regime under the 1996 Act subject to the transition provisions contained in Part 6 of Schedule 2 of the 2004 Act. In respect of conduct on and after 12 December 2005 to 23 November 2012, the 2004 Act applied. Senior Member Smithers in Legal Services Commissioner v Booth [2013] VCAT 1579 analysed (at [45] to [90]) how conduct that straddles the period in which both the 1996 Act and the 2004 Act were operative can be heard and determined under the 2004 Act. With respect, the applicant adopts that analysis.
2. The Tribunal accepts the applicant's submissions in relation to transitional issues and, in addition, notes the provisions of clause 26 of Schedule 1 of the Legal Profession Uniform Law Application Act 2014.

1. The proceeding has been before the Tribunal since May 2014. There have been numerous directions hearings, at some of which the respondent appeared and others where there was no appearance by or on behalf of the respondent.
2. By a letter dated 16 March 2016 the applicant was advised by Dr Virod Gengu, a consultant physician at Peninsula and Southeast Oncology, that the respondent suffered from pancreatic cancer. The letter concluded with the statement that the disease was likely to be fatal within 6 to 12 months.
3. On 16 July 2016, a letter was received by the Tribunal from the respondent seeking an adjournment of the hearing fixed for 20 June 2016. The principal ground for the application was stated to be that the applicant was unrepresented and that he 'had had a discussion about legal aid'. Reference was also made to him being unwell. The application for adjournment was opposed by the applicant on the grounds that the hearing had been adjourned 'numerous times' including to allow the respondent to obtain legal representation and that previous applications had been made shortly before the scheduled hearing, as was this one.
4. The application for an adjournment was refused on the following grounds:

(a) The application was made too close to the hearing date [It should be noted that the scheduled hearing date, 20 June 2016, was a Monday.]

(b) The respondent provided no evidence of the grounds for the application.

1. It should be noted that no further medical evidence after Dr Genju's letter of 16 March 2016 has been received.
2. The respondent did not appear at the hearing on 20 June 2016, nor was he represented.
3. The respondent had previously advised the Tribunal that he did not intend to contest the charges, but no formal plea of guilty had been received. The hearing of 20 June 2016 was fixed for a plea hearing. No plea material was received by the applicant or the Tribunal. It should also be noted that at a directions hearing held on 3 July 2015 (over a year before the final hearing) the respondent was ordered to file and serve submissions by 4.00 pm on 26 August 2015. The respondent attended that directions hearing.
4. On 11 February 2016 a final hearing was due to take place. However, on that occasion the respondent did not appear and further directions were made including extension of time for the respondent's submissions to 4.00 pm on 15 March 2016. No submissions have been received.
5. At the hearing on 11 February 2016, the applicant expressed concerns that:

(a) The respondent's frequent eleventh hour requests for adjournments are having the effect of stringing the matter out; and

(b) There is an issue of the protection of the public, in that the applicant alleged that the respondent, despite his illness, has engaged in legal practice without holding a practising certificate - in February, September and October 2015. The applicant had brought seven criminal charges against the applicant in relation to this. The outcome of these charges is not known to the Tribunal and this allegation is not taken into account in this proceeding.

1. In addition to the extension of time to file and serve submissions granted on 11 February 2016, the respondent was ordered to file and serve any evidentiary material relating to the question of penalty by 4.00 pm on 15 March 2016. No material has been filed and served.

1. On 20 June 2016, the hearing which had been fixed as a plea hearing on the basis of the respondent's indication took place. The respondent did not appear nor was he represented.
2. Counsel on behalf of the applicant submitted that it was 'likely' that the respondent had lodged tax returns late in 2012 but it was not known if the outstanding tax had been paid or if the $30,000 fine had been paid.
3. Gregory Trewin, an Assistant Investigator with the applicant gave sworn evidence adopting his witness statement made on 10 February 2016 together with its annexures.

Can failure to comply with personal tax obligations be professional misconduct?

1. Section 4.4.3(1) of the Act provides that professional misconduct includes:

conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.

1. Section 4.4.4(c)(ii) of the Act provides that a finding of guilt for a tax offence is capable of constituting professional misconduct.
2. Having regard to the above provisions, I am satisfied that failure by an Australian legal practitioner to meet his personal income tax obligations and a consequential finding of guilt in relation to the failure are all capable of constituting professional misconduct.

1. The definition of 'show cause event' contained in section 1.2.1 of the Act includes a person being found guilty of a tax offence. Section 2.3.27 of the Act requires the holder of a local practising certificate to notify the Victorian Legal Services Board within seven days of the happening of the event that the event happened and, within 28 days make a written statement explaining why the person considers himself or herself to be a fit and proper person to hold a local practising certificate.
2. I am satisfied that in reading section 4.4.3(1)(a) and section 4.4.4(a) of the Act together, a failure to comply with section 2.4.27 of the Act, being a contravention of the Act, is capable of constituting professional misconduct.

Failure to comply with request for written explanation

1. A failure to comply with section 4.4.11 of the Act is a contravention of the Act and is capable of constituting professional misconduct.

1. On the basis of Mr Trewin's evidence, I am satisfied that the charges are made out.
2. The respondent is found guilty of four charges of professional misconduct in relation to charges 1, 3, 5 and 6. Charges 2 and 4 are framed in the alternative to charges 1 and 3 respectively and are dismissed as unnecessary.

1. In Ziems v Prothonotary of NSW [1957] HCA 46; (1957) 97 CLR 279, the High Court of Australia considered the question of whether personal misconduct not directly connected with legal practice indicated that the person was unfit to practice.

It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar.

Here I am satisfied that the standard also applies to an Australian legal practitioner whether practising at the Bar or otherwise.

In Ziems, Fullagar J at page 290 considered that such conduct could justify removal from the roll 'because it may show that the person guilty of it is not a fit and proper person to practice'.

1. In Stirling v Legal Services Commissioner [2013] VSCA 374, the Court (Warren CJ, Neave JA and Dixon AJA) at [57] made the following observation:

As was observed by the Tribunal, the primary aim of an order of this kind is to protect the public and to protect the reputation of the profession. In order to achieve this aim, the Court may also act in a punitive fashion. As Maxwell P noted in Quinn v Law Institute of Victoria [2007] VSCA 122 at [30] [35] the orders available to a court in these proceedings are 'punitive as well as protective' and the Tribunal's jurisdiction 'is inescapably - indeed, intentionally - punitive in the service of protecting the public'.

1. In New South Wales Bar Association v Cummins [2001] NSWCA 284, Spigelman CJ (with whom Mason P and Handley JA concurred) quoted at [18] with apparent approval, the words of Mason P in New South Wales Bar Association v Hammon [1999[ NSWCA 404 at [85]

I emphatically dispute the proposition that defrauding 'the Revenue' for personal gain is of lesser seriousness than defrauding a client, a member of the public or a corporation.

[19] Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.

[20] There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.

... conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice.

1. Charges 1, 3 and 5 relate to a course of delinquency by the respondent in relation to his tax affairs, the consequent convictions, failure to comply with court orders and failure to notify the regulator of his convictions.
2. There is a need for this disposition to give effect to personal deterrence, general deterrence and protection of the reputation of the legal profession. All these have significant relevance in this matter. The respondent has shown a contumelious disregard for the law requiring the lodgement of income tax returns over a long period, an even more serious disregard for the orders of a court and his obligation to notify the regulator of the legal profession of his convictions. This behaviour by a member of the legal profession must be viewed as particularly serious.
3. Equally, the aspect of general deterrence is significantly relevant as an indication to other members of the legal profession that such a course of conduct will attract a heavy sanction.
4. Finally, the reputation of the legal profession requires protection as its members are officers of the Court and who have sworn to uphold the law, and practise honestly and honourably. Whilst the course of action undertaken by the respondent does not arise directly from legal practice, it can be said that it arises indirectly as a result of the need to declare income claimed from practice and pay one's income tax. Clearly, the public is entitled to expect that a profession integral to the administration of the law, contains within its ranks only those who respect and comply with the law. The respondent has besmirched the reputation of the legal profession and deserves sanction accordingly.
5. The course of action giving rise to charges 1, 3 and 5 justifies a global disposition. The respondent does not presently hold a local practising certificate. I find that he is not presently fit and proper to hold a practising certificate. He may not be granted a practising certificate for a period of five years from the date of this order. Further, a recommendation is made to the Supreme Court of Victoria that his name be removed from the Roll of Practitioners.
6. In relation to charge 6, the respondent is reprimanded.

1. Under clause 46D of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, the respondent is to pay the applicant's costs of this proceeding, including reserved costs, on a standard basis on the County Court scale, failing agreement to be assessed by the Costs Court.