Wise v Law Institute of Victoria Limited (Legal Practice) [2012] VCAT 1518

1. Mr Wise may not be granted a practising certificate entitling him to act as a principal of a practice before 1 July 2013, and he must demonstrate in any application for such a practising certificate that he has completed at least 10 CPD hours in the area of Practice Administration and Business Skills in the previous year.

1. Mr Wise may not be granted a practising certificate authorising the receipt of trust monies before 1 July 2015.
2. Mr Wise may be granted a practising certificate entitling him to practise as an employee, with effect at any time from today, but a condition of the first such practising certificate must be that he completes at least 5 CPD hours in the area of Practice Administration and Business Skills within the practising certificate period.

1. None of the above orders derogates from or relieves Mr Wise from his other CPD obligations.

Mr. .P. Riordan, SC and Ms E. Tueno of Counsel (3 September 2012)

1. In August this year the Law Institute of Victoria (LIV), as delegate for the Legal Services Board, refused Mr Wise's application for grant of a practising certificate as principal of a law practice for the period 1 July 2012 to 30 June 2013.

1. The grounds for the decision are set out in the information statement the LIV sent to him dated 7 August 2012. The LIV says that for the reasons set out, Mr Wise is not a fit and proper person to hold the practising certificate.

1. Mr Wise has applied to the Tribunal for a review of that decision.

1. Mr Wise has been a legal practitioner since 2006. He was an employee solicitor for three of those years, including a period of time as an employee of Heydon O'Loghlen Lawyers, a firm of which Mr Denis O'Haire was the sole principal. In March 2010, he accepted Mr O'Haire's invitation to become a director of a new entity Mr O'Haire was setting up; an incorporated legal practice (ILP) to be called Heydon O'Loghlen Lawyers Pty Ltd.

1. Mr Wise's decision stemmed, he said, from an ambition to progress his legal career. It was an unlucky decision, and one which he clearly regrets.

1. Mr Wise had no experience in the administration of a law practice. Mr O'Haire had been in practice for over thirty years. They were business partners but, according to Mr Wise, Mr O'Haire had sole responsibility for the financial management of the practice and exclusive control over the trust account. Mr Wise's role was to be primary fee earner with responsibility for the care and conduct of client matters. Only Mr O'Haire held a practising certificate authorising the receipt of trust money.

1. Between 1 July 2011 and 14 September 2011, Mr Wise did not hold a practising certificate. Neither did Mr O'Haire. Mr Wise has said this was due to an 'administrative oversight'. It meant, however, that for two and a half months in 2011 the practice had no legal director who was the holder of a current practising certificate, and in particular, no legal director with a practising certificate that authorized the receipt of trust money. Nevertheless, the practice received and disbursed trust monies, and staff, including Mr Wise, conducted legal matters.

1. Heydon O'Loghlen Pty Ltd is now in liquidation, as a result of a Supreme Court order made on 30 March 2012. The interim report of the receiver appointed by the Supreme Court concluded that there was a deficiency in the trust account of $41,410.71.

1. The LIV does not allege that Mr Wise misappropriated trust funds. Nor does it allege he has acted dishonestly.

1. The above matters are not in dispute. The issues are:

• What responsibility does Mr Wise have for the matters admitted?

• Is Mr Wise a fit and proper person to hold a practising certificate?

• Depending on the answer to the above, what orders should be made?

The role of the Tribunal on an application for review

1. Mr Wise makes his application under section 2.4.37 of the Legal Profession Act 2004.

1. The review by the Tribunal is an independent review of the merits of the decision made; the Tribunal stands in the shoes of the primary decision-maker. It has the power to conduct a full 'de novo' hearing and deal finally with the merits of the case. [1] By section 2.4.37(3), in addition to having all the powers of the Legal Services Board, the Tribunal may make any order it could make under sections 4.4.17 or 4.4.19, which set out the range of orders that can be made in disciplinary proceedings. These include orders:

• Imposing conditions, or limitations on any certificate granted;

• That a practising certificate not be granted before the end of a specified period;

• That the practitioner undertake and complete a specified course of further legal education;

• That the practitioner seek advice from a specified person.

What responsibility does Mr Wise have for the matters admitted?

1. Section 2.2.2(1) of the Act prohibits a person from engaging in legal practice unless the person is an Australian legal practitioner - an Australian lawyer who holds a current local or interstate practising certificate. Mr Wise admits he did not hold a current practising certificate from 1 July 2011 to 14 September 2011 but continued to engage in legal practice.

1. He concedes that it is his responsibility to ensure that he has a current practising certificate. He says that he assumed, based on past experience, that even if the practising certificate was issued after 1 July, it would nevertheless be effective from that date.

1. Legal practitioners must apply to renew their practising certificates by 30 April (s2.4.10) or pay a late application surcharge (s2.4.11). On 20 May 2011, the LIV sent Mr Wise a notice that it had not received his renewal application and reminded him that his current practising certificate would expire on 30 June 2011. Mr Wise agreed that he would probably have received the 20 May letter although, he said, some letters of an administrative nature would go to the office manager. He said he did not immediately take any steps to renew his certificate because in the past someone had always taken care of it - it was always delegated to the office manager.

1. Mr Wise completed an application for a practising certificate on 28 June 2011. He could not recall the precise circumstances leading to him completing the application. In that application, Mr Wise declared that he had professional indemnity insurance for the year commencing 1 July 2011. In making that declaration, he assumed, mistakenly, that the office manager had renewed the insurance. He says the failure to renew the insurance was an oversight of the practice's accounts department - a long-standing employee had left; and the new office manager did not identify the error.

1. On 4 July 2011, the LIV sent Mr Wise a letter advising him that it had refused his application for a practising certificate for failure to provide evidence that professional indemnity insurance had been paid for the relevant period.

1. Mr Wise agreed he had received the LIV's letter, probably around that date, but could not recall reading it. He referred to it in a later letter he wrote to the LIV on 14 September 2011, attaching a fresh application for grant of practising certificate. On the evidence, I find that Mr Wise received it in early July 2011 and that it is more probable than not that he read and understood it.

1. Mr Wise agreed that the 4 July letter stated unequivocally that, as he no longer held a practising certificate, he must immediately cease to engage in legal practice. He said he was aware that there was an issue but proceeded on the assumption that it was an administrative issue. He said that based on past experience he held an expectation that he would receive a practising certificate valid from 1 July 2011. He agreed that he had never previously had a practising certificate refused.

1. I accept that Mr Wise genuinely expected that once a practising certificate issued, it would apply retrospectively. That expectation was, in my view, unreasonable in the circumstances. Whatever his past experience had been, it did not include the experience of a practising certificate being refused.

1. The 4 July letter was unequivocal. It told him that:

• he must immediately cease practice or be in breach of section 2.2.2; and

• if he intended to recommence practice he must urgently ensure he had paid professional indemnity insurance, lodge an application for grant of practising certificate and provide a written statement about the previous failure to provide evidence of insurance.

1. Unfortunately, Mr Wise continued to assume that someone else would rectify the matter, another unreasonable assumption in the circumstances. He said that the office manager was charged with renewing practising certificates but he could not recall giving her any instruction to rectify the matter.

1. It was not until 9 September 2011 that he took any steps in the matter, apparently prompted by a letter from the LIV to Mr O'Haire dated 8 September 2011 noting that the LIV had no record of whether Mr O'Haire intended to renew his practising certificate. Mr Wise lodged an application for renewal of practising certificate, the LIV advised him that he had lodged the wrong form, and on 14 September he lodged an application for grant of practising certificate.

1. An email dated 6 October 2011 from the office manager is exhibited to an affidavit of Mr Wise made 11 July 2012. She was not called to give evidence. In the email she sets out her involvement in the renewal of practising certificates since commencing employment with the ILP on 27 May 2011.

1. She records finding an invoice from the Legal Services Board on 20 June 2011, receiving a cheque requisition from Mr Wise on 29 June 2011, and receiving a receipt from the Legal Services Board on 30 June 2011. She records nothing further until 15 September when Mr Wise gave her a letter from the Legal Services Board about an extra $4.00 that needed to be paid.

1. On the evidence, I find that Mr Wise did not give any instructions to the office manager to rectify the matter after receiving the 4 July letter.

1. On 13 October 2011, the Legal Services Board sent Mr Wise a practising certificate for the period from 15 September 2011, presumably the date of receipt of his application, to 30 June 2012.

1. In the interim, Mr Wise's application was under consideration by the LIV. The LIV asked him to provide responses in relation to a number of matters, including whether he had engaged in legal practice without holding a practising certificate. Mr Wise made full disclosure about engaging in legal practice since I July 2011.

1. In a letter dated 6 October 2011, the LIV stated that it must not grant or renew a practising certificate unless it is satisfied that the person is a fit and proper person to hold the certificate. From the fact that Mr Wise was then granted a practising certificate I conclude, and Counsel for the LIV conceded, that the LIV formed the view that Mr Wise was then a fit and proper person to hold a principal's practising certificate.

1. There is no doubt that Mr Wise was in breach of section 2.2.2 of the Act, and I so find. He had the responsibility of ensuring that he renewed his practising certificate, or cease to practice on 1 July 2011. He continued to practice after receiving notice that the LIV had refused his application and is responsible for the decision to do so.

1. While experience may have provided grounds for believing that a practising certificate may be issued on one date but effective from an earlier date, that belief was unsustainable given the clear meaning of the LIV's 4 July letter. Mr Wise assumed that the renewal would be attended to but did not confirm that assumption with, or give any instructions to, the person he assumed would attend to it.

1. Sections 2.7.10 and 2.7.11 of the Act impose responsibilities on a legal practitioner director of an ILP:

• for the management of the legal services provided (s.2.7.10(2));

• to ensure that appropriate management systems are implemented and maintained to enable the provision of legal services in accordance with the professional obligations of Australian lawyers and so that the professional obligations of officers or employees of the practice are not affected by other officers or employees of the practice (s. 2.7.10(3));

• to ensure that breaches of professional obligations do not occur, if it ought reasonably to be apparent that the provision of legal services by the practice will result in such breaches; and ensure appropriate remedial action is taken in respect of breaches that do occur(s.2.7.10(4);

• For the unsatisfactory conduct or professional misconduct of an employee, and the conduct of any non-legal director that adversely affects the provision of legal services by the practice unless the director took all reasonable steps to ensure that such conduct did not occur (s.2.7.11)..

1. A director of an ILP also has the duties imposed on directors of corporations (s2.7.10(6))[2].

1. There is no dispute that from 1 July 2011 to 14 September 2011, neither Mr Wise nor Mr O'Haire held a practising certificate.

1. During that period, the ILP therefore had no director who was a current legal practitioner, in breach of section 2.7.12(1) of the Act. The ILP provided legal services during this period in breach of section 2.7.12(3).

1. The LIV granted a practising certificate to Mr Wise in October 2011, effective 14 September 2011. Mr O'Haire did not hold a practising certificate until 27 October 2011.

1. The ILP received trust monies during the period 1 July 2011 to 26 October 2011 when it had no practising certificate holder authorized to receive trust monies. The ILP was therefore in breach of section 3.3.71(3) of the Act.

1. After the winding-up of the ILP, the Receiver appointed found an overall trust account deficiency for a client of the practice in the sum of $41,410.71 for the period 29 June 2011 to 11 April 2012. The client concerned has made a claim on the Fidelity Fund in which no allegation was made against Mr Wise, and the client has asked Mr Wise to continue to represent him.

1. At the hearing, Mr Wise was candid about his shortcomings as a legal director. He said he now knows more about what those responsibilities are. In hindsight, he said, he put too much trust in others. He agreed that he could have but did not ask for financial information about the practice and that he should have paid more attention to its financial position.

1. Mr Wise described himself as being 'consciously deferential' to the practical experience of Mr O'Haire and subject to his tutelage and direction. He immersed himself in the legal work of the firm and left the management and financial administration to Mr O'Haire.

1. Such a division of labour might seem practical, particularly where one director has experience and interest in financial matters, and the other has the ability and energy to concentrate on the legal work. Practicalities and preferences do not, however, absolve a legal director from responsibilities under the Act, and under the law relating to directors' duties.

1. In Re Mayes and the Legal Practitioners Act[3] the New South Wales Court of Appeal considered the professional conduct obligations of a solicitor whose partner had misappropriated clients' funds. The solicitor had played no part in the misappropriations and informed the Law Society of the defalcations as soon as he became aware of them. He had complete trust in his partner and left the supervision and operation of the trust account to him. He was nevertheless found guilty of professional misconduct at common law and breach of statutory duty. The Court of Appeal held:

'It is no answer for the appellant to claim that he left the conduct of the financial affairs of the firm to his partner. It would be no answer generally and certainly not in this case where the appellant neglected his responsibilities despite warnings that all was not well.' [4]

1. In the context of director's duties, Middleton J, in ASIC v Healey & Ors held that:

'....a director, whatever his or her background, has a duty greater than that of simply representing a particular field of experience or expertise. A director is not relieved of the duty to pay attention to the company's affairs which might reasonably be expected to attract inquiry, even outside the area of the director's expertise.'[5]

1. The ILP was wound up with debts of over $400,000, owed principally to barristers. Mr Wise said, and I accept, that alarm bells about the financial position of the practice did not begin to ring for him until late 2011. I concluded, however, that they did not ring because he failed to involve himself sufficiently or at all in the financial side of the practice.

1. I also accept that he did not know that there were or were likely to be deficiencies in the trust account. I find however that he failed in his responsibilities under section 2.7.10 to ensure that appropriate management systems were implemented and maintained to enable legal services to be provided in accordance with the professional obligations of the lawyers in the practice.

Is Mr Wise a fit and proper person to hold a practising certificate?

1. The purpose of the requirement that a person be a 'fit and proper person' to hold a practising certificate is protective.[6] The public must be able to be confident that 'those they engage as lawyers are fit and proper persons to provide appropriate, proper, careful and competent legal services'.[6]

1. They are protected 'by ensuring that those unfit to practise do not continue to hold themselves out as fit to practice.'[7]

1. In Legal Services Board v McGrath, Warren CJ referred to the observation of Walters J in Sobey v Commercial and Private Agents Board[8] that the expression 'fit and proper person' is 'not capable of being stated with any degree of precision'. In Sobey, Walters J expressed the opinion that 'fit and proper' denotes not only the requisite knowledge of the duties and responsibilities of the office but also 'sufficient 'moral integrity and rectitude of character as to permit [the applicant] to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails'.[9]

1. In Hughes and Vale Pty Ltd v New South Wales (No 2), the High Court described the purpose of the words as to give 'the widest scope for judgment and indeed for rejection.' Nevertheless, the High Court observed that in respect to an office 'Fit.....is said to involve three things, honesty knowledge and ability'[10]

1. The Act also provides assistance. 'Suitability' matters in sections 1.2.6 and 2.4.4 that are relevant to this proceeding include:

• Whether the person has engaged in legal practice when not holding a practising certificate (s.1.2.6 (d));

• Whether the person has contravened the Act (s.2.4.4 (c)).

1. I note that the Act provides that a person may be considered a fit and proper person to hold a practising certificate even if they come within any of categories, if the Board considers that the circumstances warrant the determination (s.2.4.4(2)).

1. Mr Wise's honesty is not in question. Nor is his ability to operate as a reasonably competent litigation lawyer. What he lacked was sufficient knowledge of the duties and responsibilities of a legal director of an ILP to ensure that he complied with those obligations. To quote from the High Court in Hughes, quoting in turn from Coke, Mr Wise did not have the 'knowledge to know what he ought duly to do'.[11]

1. I formed the impression that Mr Wise also lacked the professional maturity to take on the responsibilities of a partnership. His deference to Mr O'Haire indicated someone who still saw himself in the role of a subordinate, rather than as someone with equal responsibilities. He accepted his almost complete exclusion from the financial administration and management of the practice, to his obvious detriment.

1. In continuing to practice after receipt of the LIV's 4 July letter, Mr Wise showed a worrying recklessness: he assumed that he would be given a practising certificate backdated to 1 July, in the face of an unequivocal statement that he should cease practising immediately. He assumed that someone else would sort out the problem without taking any steps to ensure that occurred. On the other hand, he made full disclosure to the LIV when asked, and frank admissions about his conduct at the hearing before me. In my opinion, he recognizes that he was wrong to continue to practise, regrets that he did so and now accepts the responsibility for doing so.

1. As noted above, this failure, of itself, did not prevent the LIV from subsequently issuing a practising certificate to him. There must necessarily have been a decision that it did not then make him unfit to hold a practising certificate. The question is whether this failure in combination with the other matters admitted, means that he should now be refused a practising certificate.

1. Counsel for the LIV submitted that Mr Wise should not be entitled to a principal's practising certificate for 6-12 months. Mr Wise's counsel proposed that he be given a full practising certificate with undertakings to accept the mentoring and advice of a senior lawyer, Mr Grundy, and conditions as to continuing legal education if thought necessary.

2. Mr Grundy gave evidence that he was willing to fulfil that role. He also said that he had looked at files managed by Mr Wise and considered that they were handled with a measure of competence. He spoke favourably of Mr Wise's relationships with his clients, none of whom have shown any anger, only sadness and pity. He said he would be prepared to take on a supervisory role, assisting Mr Wise.

1. I am not satisfied that such a proposal is appropriate at this stage. In my view, Mr Wise is not yet ready to practise as a principal, and has not yet demonstrated sufficient understanding of practice management issues to be in sole practice. Significantly, Mr Grundy, when asked if he would be willing to employ Mr Wise, said that he would consider it, subject to remuneration and accommodation, but would like to see him undertake a number of CPD courses to ensure he is well aware of the Act and the conduct of trust accounts.

1. I have concluded that Mr Wise should not be granted a practising certificate entitling him to act as a principal of a practice before 1 July 2013, and must show in any application for such a practising certificate that he has completed at least 10 CPD hours in the area of practice administration and business skills in the preceding year.

1. In my view, the public would be adequately protected if Mr Wise were to be an employee, under the supervision of his principals, but that even as an employee he needs to undertake some additional CPD.

1. He may be granted a practising certificate entitling him to practice as an employee, after today, but a condition of the first such practising certificate must be that he completes at least 5 CPD hours in the area of Practice Administration and Business skills within the practising certificate period. These conditions do not derogate from any other CPD obligation Mr Wise has.

1. The evidence and submissions in this proceeding concluded on 3 September 2012. On 5 September, before I delivered oral reasons, I raised with Mr Ribbands and Mr Barravecchio the question of whether an additional order was required, specifying what should happen in relation to any application by Mr Wise for a practising certificate authorising the receipt of trust monies. Counsel's submissions had not addressed the issue. Both preferred to hear the substantive decision first and then made submissions on the issue I raised. Mr Barravecchio also made an application for costs. I heard submissions and gave oral reasons in relation to both questions. The following is a summary of those reasons.

Should there be a separate restriction on Mr Wise obtaining a practising certificate authorising receipt of trust monies?

1. Counsel for Mr Wise in his earlier submissions had indicated that Mr Wise did not presently intend to apply for a certificate authorising receipt of trust monies (trust certificate). In his additional submissions, he said that the Tribunal should not make such an order, although he conceded that it could do so. He submitted that, should Mr Wise at any time after July 2013 wish to apply for a trust certificate that could be the subject of a separate decision by the LIV. Mr Wise would have to complete the trust account course in order to apply for such a certificate. In any event, Counsel submitted, Mr Wise had not misappropriated trust funds, the usual basis for a specific order, so no question of protection of the public arises in relation to a trust account as such.

1. As Mr Barravecchio submitted, one of the advantages of making an order now is to provide clear guidance to the parties, and avoid duplicate proceedings if in the future Mr Wise applied for a trust certificate, and the LIV refused the application. Any review of such a decision would necessarily involve revisiting the matters canvassed in this proceeding, which included the extent of a solicitor's responsibility for misappropriation of trust funds, where he or she did not engage in any misappropriation and findings as to Mr Wise's responsibility for the financial administration of the practice.

1. In cases under Part 2, which this is, and Part 4.4, disciplinary matters, the Tribunal will commonly order different time restrictions depending on the type of certificate involved, allowing a person to apply for an employee certificate at an earlier time than a principal's certificate, with a longer time restriction on applying for a trust certificate.[12] Such orders will not be appropriate where the decision is that a person is presently and indefinitely not a fit and proper person to hold a practising certificate, as in McGrath.[13]

2. The protective purpose of the Tribunal's jurisdiction under both parts of the Act may require different considerations when deciding whether and when a person may 'be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails ...', [14] if the licence authorises the receipt of trust funds.

1. No allegations were made that Mr Wise misappropriated trust funds. I found, however, that he had failed in his responsibility to ensure that appropriate management systems were implemented and maintained in a practice that had a trust account.

1. I was satisfied that Mr Wise should be able to apply for a principal's practising certificate from next year, subject to completing 10 CPD hours in the area of practice administration.

1. I would be less satisfied that the public would be protected within that time frame if Mr Wise were able to deal with trust funds. This is not because of any concern about Mr Wise's honesty, but because of the concerns I have expressed about his professional maturity and knowledge of his responsibilities to do with financial management and administration where a practice receives trust monies.

1. In my view, an appropriate time restriction on Mr Wise holding a trust certificate would be not before 1 July 2015.

1. Mr Barravecchio submitted that the Tribunal should make an order for costs against Mr Wise on the grounds that:

• The LIV's decision not to grant the practising certificate Mr Wise applied for, namely a principal's practising certificate, had been affirmed by the Tribunal's orders in the proceeding;

• It was Mr Wise's decision to bring the review application. He could have withdrawn the review and applied to the LIV for an employee practising certificate;

• The LIV has succeeded on every point in the Information Statement that was pursued at the hearing;

• The Tribunal has the power to award costs under section 4.4.19 (o) of the Legal Profession Act[15];

• Section 109(3)(e) of the Victorian Civil and Administrative Tribunal Act (VCAT Act) enables the Tribunal to order a party to pay another party's costs if satisfied that it is fair to do so, having regard to 'any other matter the Tribunal considers relevant';

• Clause 46D of Schedule 1 of the VCAT Act, which deals with costs in disciplinary matters under the Legal Profession Act, is relevant. It applies to disciplinary matters under Division 4 or 5 of Part 4.4 of the Act, and provides that where the Tribunal has found a practitioner guilty of unsatisfactory conduct or professional misconduct, it must order the practitioner to pay costs, unless there are exceptional circumstances. The suggestion was made by Ross J in Edwards v LIV [2008] VCAT 2034 that clause 46D might apply in application to review under section 2.4.37.

1. In support of his submission that Mr Wise ought not to pay the LIV's costs, Counsel for Mr Wise handed up a copy of an email Mr Grundy sent on Mr Wise's behalf to the LIV on 19 July 2012, before the LIV made a decision about whether to grant Mr Wise a practising certificate. The email suggests that the Board might also consider the issue of an employee certificate although it notes that the primary application is for a full practising certificate. Counsel for Mr Wise submitted that the ultimate outcome in this proceeding was open to the LIV before the LIV made its decision.

2. Dealing first with the relevance of clause 46D of Schedule 1 to the VCAT Act; as Mr Barravecchio conceded, on its face clause 46D applies only to disciplinary proceedings. The requirement in clause 46D(2) to make a costs order against the practitioner only applies where the Tribunal has found a practitioner guilty of unsatisfactory conduct or professional misconduct. I have not done so and this was not a proceeding under Part 4.4, even though I was able to make orders set out in that Part.

1. In Edwards v LIV, which was an application under section 2.4.37, Ross J noted that 'there is some doubt as to whether clause 46D(2) applies in the circumstances of this case'.[16] His Honour went on to say that it was unnecessary to express a concluded view because even if clause 46D(2) applied he considered that 'exceptional circumstances' existed. In other words, the exception in clause 46D(2) would apply.

1. In my view, there is no suggestion in Schedule 1 to the VCAT Act, that clause 46D applies to review hearings under section 2.4.37 of the Legal Profession Act.

1. Clause 46D is confined on its own terms to disciplinary proceedings under Part 4.4 of the Legal Profession Act. It provides in clause 46D(4) that section 109 does not apply to a proceeding under Division 4 or 5 of Part 4.4 of the Legal Profession Act. There is no exclusion of section 109 in proceedings under any other part of the Legal Profession Act.

1. In my view, any decision as to costs in a proceeding under Part 2 of the Legal Profession Act must be made under s109 of the VCAT Act.

1. Under s109(1), the usual position in Tribunal proceedings is that each party will bear their own costs. The Tribunal may make an order for payment of one party's costs by the other party under s109(2), if it is satisfied that it is fair to do so having regard to a number of factors set out in s109(3)(a) to (d) and, in (e), any other matter the Tribunal considers relevant.

1. Mr Barravecchio conceded that none of the factors in sections 109(3) (a) - (d) applied. The admissions made by Mr Wise considerably shortened the time taken to complete the proceedings. The proceedings were not vexatious. Mr Wise's decision to seek the review was vindicated in part by the order that he be entitled to apply for an employee practising certificate immediately, even though that was not the primary order sought. On the other hand, the other orders made effectively affirm the LIV's decision not to grant a principal's practising certificate to Mr Wise.

1. Mr Grundy's email to the LIV does not determine the issue of costs one way or the other, in my view. Mr Grundy was suggesting that the LIV might consider granting an employee practising certificate, but the application under consideration by the LIV was for a principal's practising certificate, and it was entitled to make a decision on the application before it. Section 2.4.7(1) of the Act provides that the Board must not grant a local practising certificate 'unless it is satisfied that the applicant....is a fit and proper person to hold the certificate'.[my emphasis]. The use of the definite article, 'the', supports a conclusion that the decision is to be made about the certificate that is the subject of the application.

1. In all the circumstances, I am not satisfied that it is fair to order Mr Wise to pay the LIV's costs. Each party is to bear their own costs.

[1] Zarah Garde-Wilson v Legal Services Board [2008] VSCA 43

[2] 'Nothing in this Part derogates from the obligations or liabilities of a director of an incorporated legal practice under any other law.'

[3] [1974] 1 NSWLR 19

[5] [2011] FCA 717 at [18]

[6]. Legal Services Board v McGrath [2010] VSC 266; (2010) 29 VR 325 at 329. The protection extends 'beyond the public to include the legal profession as a group, the courts, the justice system and community confidence in that system'.

[6] Victorian Lawyers RPA v Yvonne Grace Young [2001] VSC 28 at paragraph 28.

[7] Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 471.

[8] (1979) 22 SASR 70 at 76,

[9] See Legal Services Board v McGrath [2010] VSC 266; (2010) 29 VR 325 at 330, Warren CJ

[10] Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) CLR 127 at 156-157, cited in McGrath at 330.

[11] (1955) CLR 127 at 156-7

[12] See for example the orders made in Delahunty v LIV [2012] VCAT 524 (Under Part 2); Edwards v LIV [2008] VCAT 2034 (Under Part 4)

[13] At p332. The application in McGrath was that the practitioner's name be removed from the roll.

[14] Per Walters J in _Sobe_y, referred to in Legal Services Board v McGrath, cited above.

[15] S 4.4.19 The Tribunal may make the following orders under this section

[16] [2008] VCAT 2034 at [52]