Delahunty v LIV
[2013] VSC 157
•8 August 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. SCI 02939 of 2012
| ROSS VINCENT DELAHUNTY | Plaintiff |
| v | |
| LAW INSTITUTE OF VICTORIA LIMITED | Defendant |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October, 8 November 2012 | |
DATE OF JUDGMENT: | 8 August 2013 | |
CASE MAY BE CITED AS: | Delahunty v LIV | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 157 | |
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LEGAL PRACTITIONERS – Practising certificate – LIV refused to issue employee practising certificate – VCAT affirmed LIV decision – VCAT member erred in applying principles relevant to disciplinary proceedings in a review of a refusal to grant a practising certificate – VCAT member failed to give reasons for refusing to grant an employee practising certificate – Leave to appeal granted and appeal allowed in respect of those errors – Legal Profession Act 2004 part 2.4, part 4, ss 2.4.37, 4.4.17 and 4.4.19
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the Defendant | Mr G M Randall | Law Institute of Victoria Limited |
HER HONOUR:
Introduction
In April 2012, a senior member of the Victorian Civil and Administrative Tribunal affirmed the decision of the defendant, the Law Institute of Victoria (“the LIV”), to refuse to issue an employee practising certificate to the plaintiff, Ross Delahunty. Mr Delahunty seeks to appeal against that VCAT decision.
Mr Delahunty has been practising as a suburban solicitor for more than 40 years. Between 1998 and 2011, he was practising as a sole practitioner in Murrumbeena, under the name “Legal Rite”. The work of the practice included preparing wills, acting in the administration of estates, and assisting older clients with their affairs.
Over the years, Mr Delahunty developed what were described, accurately, by the VCAT member as “some very bad practices in relation to fulfilling his trust account obligations.” Specifically, he appropriated funds from his trust account for the payment of legal costs and executor’s commission, either without appropriate authority or in breach of applicable statutory provisions.
In September 2010, a delegate of the Legal Services Board (“the Board”) appointed two inspectors, to conduct a random inspection of Mr Delahunty’s trust account records. They reviewed 12 files and trust account ledger printouts, and prepared an investigation report, dated 21 April 2011. The investigation report identified numerous alleged breaches of the trust account provisions of the Legal Profession Act 2004 (“the LPA”) and the Legal Profession Regulations 2005 (“the regulations”).
On 4 July 2011, the LIV, purportedly acting as delegate for the Board, refused to renew Mr Delahunty’s local practising certificate, on the ground that he was not a fit and proper person to continue to hold it.
On 8 July 2011, Mr Delahunty lodged an application with VCAT, seeking a review of the July decision. By virtue of s 2.4.5(3) of the LPA, Mr Delahunty‘s 2010-11 practising certificate remains in force until he has exhausted all rights of review in relation to the decision to refuse to renew it.
On 14 September 2011, Kyrou J appointed a receiver over the regulated property of the practice, on the application of the Board. The application was not made, or granted, on the basis of any allegation of dishonesty by Mr Delahunty. Rather, his Honour held that Mr Delahunty’s actions were explicable by his ignorance of his legal obligations.
In October 2011, Mr Delahunty obtained employment at the nearby firm of Morley Naughton Pearn and Cook. That firm subsequently bought Mr Delahunty’s old practice from the receiver.
Mr Delahunty then applied for an employee practising certificate, for the period to June 2012. Such a certificate would not entitle him to act as a principal, or be responsible for trust monies.
On 7 December 2011, the LIV refused that application, on the ground that he was not a fit and proper person to hold such a certificate.
Mr Delahunty amended his application for review by VCAT, to add a challenge to the December decision.
When the application came on before Senior Member Smithers, on 13 March 2012, Mr Delahunty’s counsel said that all that Mr Delahunty now sought was an employee practising certificate. He did not seek the ability to practice as a principal, or to deal with trust monies. The LIV agreed to confine the hearing in that manner.
For the purposes of the VCAT hearing, Mr Delahunty’s counsel did not challenge the accuracy of the matters contained in the investigation report, or in Kyrou J’s reasons for decision; rather, he focussed on what would be an appropriate disposition in the circumstances.
The LIV, quite inappropriately, invited the VCAT member to make findings of professional misconduct, even though the proceeding was not a disciplinary proceeding.
On 26 April 2012, the VCAT member ordered:
(1) The decision of the Law Institute of Victoria to refuse to issue a practising certificate to Mr Delahunty is affirmed.
(2) Order 1 shall not take effect until 28 May 2012.
(3) Mr Delahunty not be granted a local practising certificate before 26 April 2014.
(4) Mr Delahunty not be granted a practising certificate entitling him to act as principal of a practice before 26 April 2019.
(5) Mr Delahunty not be granted a practising certificate entitling him to hold trust monies before 26 April 2027.
By originating motion dated 23 May 2012, Mr Delahunty seeks leave to appeal against the VCAT orders.
When the application for leave to appeal came on before Lansdowne As J, on 10 September 2012, her Honour adjourned the application, to be heard and determined at the same time as the appeal (if leave were granted). Her Honour also made various directions for the filing of affidavits, outlines and a court book.
The appeal is brought under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“VCAT Act”), which only permits appeals against VCAT orders to be brought, with leave, on questions of law. That ordinarily involves an examination of the reasons below, and the evidence which was before the VCAT member.
Unfortunately, both sides were working under the misapprehension that they could, and should, file affidavits addressing the merits of the decision below. Accordingly, they both filed substantial affidavits, addressing the question of whether Mr Delahunty was, in fact, a fit and proper person to practise. They also had not put before this court all the evidence which had been before VCAT, including critical documents like the investigation report, and the information notices which the LIV had sent to Mr Delahunty.
Accordingly, when the matter first came on for hearing before me, on 31 October 2012, I made various observations in relation to the inadmissibility of the proposed new evidence, before adjourning the matter off to enable the parties to put before the court all of the evidence which had been before VCAT.
For the reasons which follow, I have concluded that the VCAT member misunderstood the task he was to perform, and made a number of errors of law, in upholding the LIV’s refusal to grant an employee practising certificate.
Before examining the VCAT member’s reasons in more detail, it is convenient to consider the statutory framework, as well as the evidence which was before VCAT.
The statutory framework
Practising certificates
Chapter 2 of the LPA concerns the general requirements for engaging in legal practice, and deals with matters such as admission to practise, local practising certificates, permissible types of practice, and legal practice by foreign lawyers.
Part 2.4 deals with legal practice by Australian legal practitioners, including the grant or renewal of local practising certificates. Section 2.4.1 provides that the purposes of part 2.4 are:
(a) to facilitate the national practice of law …;
(b) to provide a system for the granting and renewing of local practising certificates.
Section 2.4.3 empowers the Board to grant local practising certificates, and includes the following sub-section:
(3) A local practising certificate is subject to the following conditions, as determined by the Board –
(a) a condition that the holder is authorised or not authorised to receive trust money; and
(b) a condition that the holder is authorised to engage in legal practice –
(i) as a principal of a law practice; or
(ii) as an employee of a law practice;[1] or
[1]When I refer in these reasons to “an employee practising certificate”, I am referring to what is, technically, a local practising certificate subject to a condition under s 2.4.3(3)(b)(ii), rather than a separate type of practising certificate. However, the term “employee practising certificate” was used by counsel and the VCAT member, and is a convenient shorthand reference.
(iii) as a volunteer at a community legal centre; or
(iv) as a corporate legal practitioner.
There is power to impose various additional conditions on a practising certificate, as set out in division 5 of part 2.4.
Generally speaking, a local practising certificate lasts until the end of the financial year in which it is granted, unless the certificate is suspended or cancelled sooner (s 2.4.5).
The criteria for the grant or renewal of a local practising certificate are set out in s 2.4.7:
(1) The Board must not grant a local practising certificate unless it is satisfied that the applicant –
(a) was eligible to apply for the grant when the application was made; and
(b) is a fit and proper person to hold the certificate.
(2) The Board must not renew a local practising certificate if it is satisfied that the applicant –
(a) was not eligible to apply for the renewal when the application was made; or
(b) is not a fit and proper person to continue to hold the certificate.[2]
[2] The LIV refused Mr Delahunty’s application for an employee certificate under s 2.4.7(1)(b). The LIV refused Mr Delahunty’s application to renew his current practising certificate under s 2.4.7(2)(b).
The question of whether somebody is a fit and proper person to hold a local practising certificate is one which arises in a number of different contexts in the LPA. For example it appears in more than 20 different sections within chapter 2 of the LPA. It also appears in the definition of “professional misconduct” in s 4.4.3, which will be considered later in these reasons.
The “fit and proper” concept has the same meaning wherever it appears in the LPA (s 2.4.4(1AA)). In considering whether or not a person is, or is no longer, a fit and proper person to hold a local practising certificate, the Board may take into account:
2.4.4(1) … any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section –
…
(c) whether the person has contravened this Act or a corresponding law or the regulations or legal profession rules under this Act or a corresponding law;
…
(f) any other matter the Board thinks appropriate.
There is a long list of “suitability matters” set out in s 1.2.6, which relevantly include:
(j) whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts;
(k) whether, under this Act, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person;
However, even if a person falls within any of the categories listed in s 2.4.4(1), the person may still be considered a fit and proper person, “if the Board considers that the circumstances warrant the determination” (s 2.4.4(2)). So, the appointment of a receiver, or a finding of a breach of relevant law or regulations, does not lead to an automatic conclusion that the person is not fit and proper; the circumstances of the case must be considered.
If the Board refuses to grant or renew a local practising certificate, it is required by s 2.4.12(3) to give an information notice about the decision to the applicant.
Decisions to grant or renew local practising certificates are just a few of the decisions which the Board may make under part 2.4 of the LPA. There are also powers to suspend, amend or cancel certificates. Board decisions made under part 2.4 are subject to review by VCAT under s 2.4.37, which relevantly provides:
Review of decisions about local practising certificates
(1) A person whose interests are affected by the decision may apply to [VCAT] for review of a decision of the Board –
(a) refusing to grant or renew a local practising certificate …; or
(ab) imposing a condition on a local practising certificate under section 2.4.14; or
(b) amending, suspending or cancelling a local practising certificate under section 2.4.21 or 2.4.28; or
(c) suspending a local practising certificate under s 2.4.22; or
(d) refusing a request to amend a local practising certificate under section 2.4.24.
…
(3) On a review under this section, in addition to having all the powers of the Board in respect of the decision, [VCAT] may make any order [VCAT] could make under section 4.4.17 or 4.4.19 (except paragraph (a)).
The powers set out in ss 4.4.17 and 4.4.19 will be considered shortly; they include powers which are clearly appropriate for both disciplinary and practising certificate proceedings, as well as powers which are only appropriate for disciplinary proceedings (and which should, therefore, have also been excluded from s 2.4.37, together with paragraph (a) of s 4.4.19). The drafting of s 2.4.37(3) is undoubtedly the cause of much of the confusion and error in this case, and will be considered further later in these reasons.
Disciplinary matters
Chapter 4 deals with complaints and discipline. The purposes of chapter 4 are set out in s 4.1.1:
(a) to provide a scheme for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of legal services and the public generally;
(b) to promote and enforce the professional standards, competence and honesty of the legal profession;
(c) to provide a means of redress for complaints about the legal profession.
Those purposes stand in stark contrast to the purposes of part 2.4.
Chapter 4 contains provisions enabling the making of civil and disciplinary complaints against legal practitioners. Complaints are made to the Legal Services Commissioner (“the Commissioner”). Civil complaints include matters such as costs disputes. Disciplinary complaints concern conduct that, if established, would amount to unsatisfactory professional conduct or professional misconduct (s 4.2.3).
Unsatisfactory professional conduct is the less serious of those types of conduct, and includes conduct which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner (s 4.4.2).
Professional misconduct is defined in s 4.4.3:
(1) For the purposes of this Act –
professional misconduct includes -
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) 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.
Even where no disciplinary complaint has been received, s 4.4.8 gives the Commissioner power to investigate a practitioner’s conduct, if there is reason to believe that it may amount to unsatisfactory professional conduct or professional misconduct.
The Commissioner has powers to refer a disciplinary complaint to an investigatory body (s 4.4.9), and to require the practitioner to explain their conduct and provide documents or other information (s 4.4.11).
Unsurprisingly, given the possible consequences of a relevant disciplinary finding, part 4.4 contains detailed procedures which must be undertaken, before a finding of unsatisfactory professional conduct or professional misconduct can be made.
If the Commissioner, after an investigation, is satisfied that there is a reasonable likelihood that VCAT would find the practitioner guilty of professional misconduct, the Commissioner may apply to VCAT for an order under division 4. Or, if the Commissioner determines there is a reasonable likelihood that VCAT would find the practitioner guilty of unsatisfactory professional conduct, there is a broader range of options open to the Commissioner, including applying to VCAT, reprimanding the practitioner, or taking no further action (s 4.4.13).
If, after completing a hearing under division 4 of part 4.4, VCAT is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, VCAT may make any order it thinks fit, including one or more of the orders specified in ss 4.4.17 and 4.4.19.
Section 4.4.17 empowers VCAT to make any of the following orders:
(a) an order recommending to the Supreme Court that the name of the practitioner be removed from the local roll;
(b) an order that the practitioner’s local practising certificate be suspended for a specified period or cancelled;
(c) an order that a local practising certificate not be granted to the practitioner before the end of a specified period;
(d) an order amending the conditions of the practitioner’s local practising certificate or imposing further conditions, restrictions or limitations on the certificate.
Section 4.4.19 empowers VCAT to make the following orders, which require compliance by the practitioner:
(a) [one of the orders that can be made under s 4.3.17(1)(a), (b), (c) or (e), in respect of a civil dispute about costs];
(b) an order that the practitioner pay a fine of a specified amount, not exceeding $10,000 in the case of a finding of unsatisfactory professional conduct and $50,000 in the case of a finding of professional misconduct;
(c) an order that the practitioner undertake and complete a specified course of further legal education;
(d) an order that the practitioner undertake a specified period of practice under specified supervision;
(e) an order that the practitioner do or refrain from doing something in connection with the practice of law;
(f) an order that the practitioner cease to accept instructions as a public notary in relation to notarial services;
(g) an order that the practitioner's practice be conducted for a specified period in a specified way or subject to specified conditions;
(h) an order that the practitioner's practice be subject to periodic inspection by a specified person for a specified period;
(i) an order that the practitioner seek advice in relation to the management of the practitioner's practice from a specified person;
(j) an order that the practitioner not apply for a local practising certificate before the end of a specified period;
(k) an order reprimanding the practitioner;
(l) an order that the practitioner report on the legal practice of the practitioner to a specified person at specified intervals;
(m) an order that the practitioner not employ, engage or recommend a specified person or class of persons;
(n) any other order the Tribunal thinks fit.
As mentioned earlier, s 2.4.37(3) of the LPA provides that VCAT can also exercise any of the powers under s 4.4.17 and under s 4.4.19 (excluding paragraph (a) thereof), when hearing a practising certificate review under part 2.4. In fact, some of the powers in ss 4.4.17 and 4.4.19 are clearly inappropriate to be exercised other than in a disciplinary proceeding. The proper construction of s 2.4.37(3) will be considered later in these reasons.
The evidence before VCAT
According to the LIV solicitor handling this matter, the only documentary evidence before the VCAT member was the following:
(a) The investigation report, dated 21 April 2011;
(b) The LIV information notices, dated 5 July 2011 and 7 December 2011, respectively;
(c) Kyrou J’s reasons for decision, dated 14 September 2011;
(d) Character references from Dr Peter Drake, dated 29 August 2011, and Mr Ian Falconer, accountant, dated 30 August 2011; and
(e) An affidavit of Mr Delahunty’s current employer, Anthony Joseph Naughton, sworn 6 March 2012.
Brief oral character evidence was also given by Mr Delahunty’s son, who is also a solicitor.
The investigation report
The investigation report itself is 29 pages long. Annexed to it were documents referred to in the report, sufficient to fill one lever arch folder.
In respect of the 12 files which the inspectors had examined, the report identified numerous alleged breaches of the trust account provisions of the LPA and the regulations. The inspectors concluded that there were trust account deficiencies totalling between about $268,000 and $385,000 (depending on whether Mr Delahunty was acting a legal practitioner in relation to all the client matters), for which they did not believe that Mr Delahunty had given any adequate explanation. They also concluded that Mr Delahunty had not kept records in accordance with the regulations, and his records were not kept in such a way as to be conveniently investigated or to provide a full or proper accounting to clients.
The report concluded with the following recommendations:
1. That consideration be given to any appropriate action in regards to the practising certificate of Mr Ross Delahunty and/or
2. The appointment of an external intervener in the light of the alleged breaches of the trust account record keeping requirements and unrestored deficiencies. The practitioner has not provided a reasonable excuse or explanation.
The information notices
The notices were given, pursuant to s 2.4.12(3) of the LPA, to inform Mr Delahunty of the allegations made against him.
The first notice related to the application for renewal of Mr Delahunty’s current practising certificate. The second notice related to the application for the grant of an employee practising certificate.
In each case, the notice referred to the appointment of the LIV inspectors, and the investigation report, before stating what the LIV’s relevant decision was, and giving reasons for the decision. Both of the notices quoted at some length from the investigation report.
The first notice gave the following as the reasons for refusing to renew the current certificate:
A. The matters, findings and concerns outlined in the investigation report. A copy of the investigation report has been previously provided to you.
B. The alleged deficiencies and many possible breaches of the [LPA] [regulations] and possible breach of section 83 of the Crimes Act 1958 contained in the investigation report.
C. The law practice has not kept records in a way that at all times discloses the true position in relation to trust money received for or on behalf of any person; and in a way that enables the trust records to be conveniently and properly investigated or externally examined (see section 3.3.25 of the [LPA]).
D. During the course of the inspectors’ investigation the law practice did not provide satisfactory explanations regarding the alleged deficiencies and has to date failed to restore the deficiencies.
E. The law practice is currently subject to an unresolved complaint being investigated by the [Commissioner] under chapter 4 of the Act.
The second notice simply repeated those as the reasons for not granting an employee practising certificate, and added the following:
F. The reasons and orders of Justice Kyrou of the Supreme Court on 14 September 2011 in which James Leslie Leach, Australian legal practitioner, was appointed by Justice Kyrou as receiver for your former law practice …
The first notice informed Mr Delahunty that, having taken into account all the matters referred to in the notice, the LIV was satisfied that he was “no longer a fit and proper person to hold a local practising certificate.”
The second notice informed Mr Delahunty that, having taken into account all the matters referred to in the notice, the LIV was satisfied that he was “not a fit and proper person to hold a local employee practising certificate.” The second notice contained no discussion of the differences between a full practising certificate and an employee practising certificate, and no analysis of Mr Delahunty’s conduct by reference to any such differences.
Kyrou J’s reasons for decision
After considering at some length the relevant legal requirements in relation to the keeping of trust accounts, and the principles relating to the payment of executor’s commission, Kyrou J discussed the nature of Mr Delahunty’s practice and the background to the July decision not to renew his current practising certificate.
For the purposes of the receivership application, the parties focussed on four files which were discussed in the investigation report, being the files relating to Marjorie Cook and Josephine McCorquodale, and the estates of Neal Smith and Barry Ladd. Mr Delahunty was one of the executors of the estates of Messrs Smith and Ladd, and held powers of attorney for Ms Cook and Ms McCorquodale.
Kyrou J considered at some length Mr Delahunty’s dealings with monies belonging to those clients or estates. It is not necessary for present purposes to consider the details of those dealings. It is sufficient to note that Kyrou J found that Mr Delahunty had:
(a) Made unauthorised payments of executor’s commission to himself from the Smith and Ladd estates;
(b) Withdrawn funds from Ms Cook’s trust account and the Smith estate, for the payment of legal costs for which no bills had been rendered.[3]
[3] In breach of s 3.3.20(1)(a) of the LPA and/or reg 3.3.34 of the regulations.
Kyrou J concluded that the following trust account deficiencies existed: almost $74,000 for the Smith estate, about $84,000 for the Ladd estate, and almost $103,000 for Ms Cook.
As far as Ms McCorquodale was concerned, Kyrou J accepted that the relevant withdrawals from the client’s bank account were made in Mr Delahunty’s capacity as attorney, not as legal practitioner, and were authorised by a document signed by the client. Accordingly, he was not satisfied that there was any trust account deficiency in respect of the McCorquodale power of attorney.
His Honour made a number of findings which were critical of Mr Delahunty, including:
(a) Mr Delahunty was ignorant about his most basic obligations as a fiduciary;
(b) Mr Delahunty had taken advantage of Ms Cook’s vulnerability, in helping himself to her money without maintaining proper records;
(c) Mr Delahunty’s conduct constituted serious breaches of trust, in withdrawing funds at will from Ms Cook, and the Smith and Ladd estates, without seeking prior consent and without providing a full and frank explanation for his actions; and
(d) Mr Delahunty’s conduct since he received the April 2011 inspection report indicated that he still failed to grasp the seriousness of his conduct.
His Honour noted that the Board had not sought to establish that Mr Delahunty had acted dishonestly. He held that Mr Delahunty’s actions were “explicable by his ignorance of his legal obligations.”
Kyrou J noted that Mr Delahunty was unable to remedy the serious trust account deficiencies which he had created, and the practice was unlikely to generate sufficient income to enable him to do so in the future. In those circumstances, it would not be in the public interest, or the interests of the persons affected by Mr Delahunty’s actions, to permit him to continue to conduct the practice. His Honour decided to appoint a receiver over the entire practice, not merely the regulated property of Cook, Ladd and Smith, so that the receiver could thoroughly investigate the affairs of the practice and Mr Delahunty’s trust account dealings more broadly.
Significantly, for present purposes, Kyrou J noted the following:
124 It was common ground that the appointment of a receiver for the practice would not affect Mr Delahunty’s appointment as an executor of any estate or his status as a donee of any power of attorney. It was also common ground that the appointment of a receiver would not prevent Mr Delahunty from commencing a new practice on his own account with a new trust account, from practising as a partner of a law firm or from becoming an employee solicitor of a law firm. The appointment of a receiver will not, in itself, destroy Mr Delahunty’s livelihood.
His Honour was not required to, and did not, make any findings about Mr Delahunty’s fitness to hold a practising certificate.
The Naughton affidavit
Anthony Naughton is a sole practitioner and the proprietor of the firm of Morley Naughton Pearn & Cook in Bentleigh, where Mr Delahunty has been working since October 2011. The firm employs conveyancing and probate staff, as well as an employee solicitor.
Mr Naughton employed Mr Delahunty to replace his previous employee solicitor, who left after working there for more than 12 years. Mr Delahunty was the most experienced and capable applicant for the job, by a considerable margin.
During the job application, Mr Delahunty made full disclosure concerning the appointment of a receiver to his practice. Mr Naughton has received a copy of Kyrou J’s reasons.
As far as relevant work practices are concerned, Mr Naughton says that:
(a) Mr Delahunty does not operate a computer;
(b) Mr Delahunty’s work is competent and done expeditiously;
(c) Mr Naughton collects and distributes incoming mail and checks all outgoing mail produced by staff; and
(d) Mr Naughton is the sole signatory to the firm’s trust account, and is responsible for the handling of all trust monies that are received or disbursed by the firm. Mr Delahunty has no involvement whatsoever with the disbursement of trust account monies.
If Mr Delahunty obtains a practising certificate, Mr Naughton intends to retain his services as an employee solicitor. Mr Naughton says it is difficult to find experienced, competent solicitors to work in suburban legal offices, and it would be hard to replace Mr Delahunty if he was barred from legal practice.
The VCAT decision
In the introduction section of his reasons for decision, the VCAT member noted, accurately, that Mr Delahunty’s counsel had not really contested the findings of the investigation report; rather, he had focussed his submissions on what the appropriate result should be, given those findings.
The VCAT member also noted, correctly, that the parties had agreed to only address the question of fitness to practise as an employee solicitor. He said that he would, accordingly, make no further reference to the first application, which challenged the refusal to renew the current practising certificate.[4] Unfortunately, thereafter, he repeatedly referred to “the decision to refuse to renew”[5] the current certificate, rather than the application for the grant of an employee certificate, culminating in the conclusion that “the application by Mr Delahunty for review of the decision of the LIV refusing to renew his practising certificate is refused.”[6] In fact, paragraph 1 of the actual VCAT orders did address the correct decision, in that it affirmed the decision “to refuse to issue a practising certificate”. However, the repeated references to “renewal”, are consistent with the fact that, throughout his reasons, the VCAT member (like the LIV in its second information notice) seems to have paid little regard to the different natures of the two types of practising certificate, or the fact that Mr Delahunty did not seek authority to receive trust monies.
[4]At [6].
[5]For example, at [7], [10], [14] and [18].
[6]At [58].
The first two thirds of the reasons for decision largely involved a recitation of the relevant legislative provisions, lengthy quotes from Kyrou J’s reasons, and a summary of counsel’s submissions.
The VCAT member then discussed VCAT’s disciplinary function, and mentioned a number of cases dealing with the concepts of punishment, denunciation, protection of the public, and specific and general deterrence.[7] But those case involved disciplinary proceedings, where findings of misconduct had been made. Unfortunately, the VCAT member started falling into error at this stage, when he held that “in the light of section 2.4.37 [these principles] are also applicable in determining the disposition upon review of a decision that a person is not a fit and proper person to hold a practising certificate.”[8]
[7]For example, the Court of Appeal decision in Quinn v Law Institute of Victoria [2007] VSCA 122.
[8]At [49].
The actual reasons given as to why the VCAT member found Mr Delahunty to be unfit to practice were brief:
Fit and proper – conclusion
51 Many of the cases relating to the “fit and proper” criterion concern dishonesty. Here, however, the LIV relied on the findings of Kyrou J, and the investigation report, and explicitly did not seek to put the case any higher than the findings made by his Honour. As appears from the passage quoted above …, this was on the basis that Mr Delahunty was ignorant of his legal obligations in relation to trust accounting, rather than that he was dishonest.
52 However, even on this basis, I find that Mr Delahunty is not a fit and proper person to hold a practising certificate at the present time. His taking of executor’s commission and fees without authority, in particular from vulnerable clients, and his breaches of his trust accounting obligations were so egregious and fundamental, that the conclusion must follow that he is not fit and proper to hold a practising certificate, even as an employee only, and without the authority to deal with trust monies. A practitioner who is restricted in this way still has significant involvement in, and responsibilities for, his clients’ personal legal affairs.
He did not explain what he meant by the last sentence, nor did he mention the uncontested evidence of Mr Naughton about the strict limits on Mr Delahunty’s authority as an employee solicitor. Importantly, nowhere in his reasons did the VCAT member seek to analyse the differences between a full practising certificate and an employee certificate.
The VCAT member then noted the following:
(a) Breaches of trust accounting requirements are among the most serious breaches a practitioner can commit;
(b) The sums of money here were substantial and the breaches continued for many years;
(c) It was not clear whether the clients in the Smith, Ladd and Cook matters would be significantly worse off than if Mr Delahunty had taken the proper steps to claim fees, commission and expenses;
(d) There was nothing to suggest that Mr Delahunty had been significantly enriched by his conduct;
(e) Mr Delahunty was unable to remedy any trust account deficiency;
(f) Mr Delahunty was not assisted by the failure of annual audits to pick up his breaches; it was his responsibility to comply; and
(g) The LIV had not delayed inappropriately in the way it had dealt with the matter.
After listing those matters, he then simply concluded in paragraph [58] that “[a]ccordingly, the application by Mr Delahunty for review of the decision of the LIV refusing to renew his practising certificate is refused.” Once again, he was referring to the wrong LIV decision and, once again, he failed to explain why Mr Delahunty should not even be entitled to practise as an employee.
The VCAT member then went on to consider what he described as “disposition”. He rejected the submission of Mr Delahunty’s counsel that the public would be sufficiently protected by his practising only as an employee solicitor, saying:
As discussed, his breaches of his trust accounting obligations are so serious, that the need for general deterrence, as an aspect of the protection of the public, demands some period without the right to practise. Nor can it be said that depriving Mr Delahunty of the right to practice in this instance provides less protection to the public than not doing so.[9]
[9]At [61].
Then, a few paragraphs later, he said:
In this case, I have concluded that the appropriate disposition is that Mr Delahunty be prevented from applying for a practising certificate for a period of two years. I recognise that if he was to obtain a practising certificate in the future, and he was able to return to his current position at Morley Naughton Pearn and Cook, or a similar position, the concerns about protection of the public from the type of conduct the subject of this proceeding would largely be dealt with, given that he would be acting under supervision of his principal.[10]
[10]At [65].
He made no attempt to analyse the evidence, or provide any reasons as to why the public would be adequately protected if Mr Delahunty practised as an employee solicitor in two years’ time, as opposed to at the time of the hearing. It is not self-evident why that should be so. Rather, it seems that he was treating two years without any right to earn an income as a lawyer as a suitable punishment for what Mr Delahunty had done.
Even though the application before VCAT only concerned a practising certificate decision, the LIV asked the VCAT member to make a finding of professional misconduct against Mr Delahunty. The LIV argued that such a finding would be “beneficial in practical terms, in that it avoided duplication of proceedings.”
The LIV made that submission in reliance on the decision in Edwards v Law Institute of Victoria,[11] a case in which Judge Ross (as he then was) apparently made findings of misconduct in what was an application for review of decisions to suspend or refuse to renew a practising certificate. The LIV also referred the VCAT member to two unreported decisions of the Legal Profession Tribunal under the 1996 predecessor Act, which were said to be to the same effect as Edwards, and to reflect “the practice historically”.[12]
[11][2008] VCAT 1277 and [2008] VCAT 2034 (“Edwards”).
[12]A 1999 decision in Henderson v Victorian Lawyers RPA Ltd and a 1997 decision in Nelson v Victorian Lawyers RPA Ltd.
The VCAT member ultimately agreed with Mr Delahunty’s counsel, namely, that he did not have power to make a finding of professional misconduct in proceedings commenced under part 2; that decision is undoubtedly correct. In so far as the decision in Edwards or the two earlier tribunal decisions may have said otherwise, those decisions were, with respect, clearly wrong.[13] There is no legal power to make a professional misconduct finding, in a proceeding which only involves the review of a practising certificate decision.
[13]The applicant in Edwards appeared for himself. It is not clear from the reasons to what extent there was any dispute before Judge Ross as to his power to make a finding of misconduct in a practising certificate proceeding. Neither of the two Legal Profession Tribunal cases was provided to this court.
The VCAT member should have stopped at that point. Regrettably, he went on to say:
78 From a policy point of view, one can certainly see that it is desirable properly to integrate the part 2 and part 4 processes to avoid duplication. Under the present regime, in imposing a sanction under part 4, VCAT in effect finds that conduct would constitute professional misconduct or unprofessional conduct but cannot formally make that finding.
79 In the present case, had Mr Delahunty been charged, on the information before me, I would have found him guilty of professional misconduct under part 4 in relation to his breaches of the [LPA] and the regulations relating to his trust account obligations. I would have done so on the basis that Mr Delahunty has engaged in professional misconduct within the meaning of s 4.4.3(b) of the [LPA] (justifying a finding that he is not a fit and proper person to engage in legal practice) and s 4.4.4(a) (contravention of the trust accounting obligations under the [LPA] and regulations of a sufficiently serious magnitude to constitute professional misconduct). Further, I would have imposed the same sanction, namely a period of two years before he may reapply for a practising certificate of any kind, seven years before he may apply for a practising certificate as the principal of a legal practice, and 15 years before he may apply for a practising certificate allowing him to hold trust monies.
Those observations disclose the fundamental confusion in the VCAT member’s mind as to the very different purposes and roles of chapters 2 and 4 of the LPA, and his confusion as to the principles he was to apply in the present case. This confusion is evident throughout the rest of his reasons, where he referred to and relied in numerous places upon concepts such as specific and general deterrence, denunciation, remorse, and “the punitive aspect of disciplinary decisions.” Those are concepts which are appropriate to a disciplinary proceeding under chapter 4, not to a practising certificate review proceeding under part 2.4 of chapter 2.
It is also most regrettable that the VCAT member made such highly prejudicial and gratuitous remarks about somebody’s guilt, of an offence with which they have not been charged, and without requiring compliance with any of the procedures or safeguards set out in chapter 4.
Finally, and in fairness to the VCAT member, I would observe that his confusion is perhaps not entirely surprising, given the very confusing and unhelpful submissions made to him. He seems to have been led into error by counsel on both sides.
The proper relationship between chapters 2 and 4
The question of whether a practitioner is a fit and proper person may arise under both chapters 2 and 4, and the concept has the same meaning wherever it arises in the LPA.
It is also true that VCAT may make some of the same orders when it is exercising its jurisdiction under both chapters.
However, the fundamental purposes and roles of part 2.4 (of chapter 2) and chapter 4 of the LPA are very different.
The stated purpose of part 2.4 is to provide a system for the granting and renewal of local practising certificates. The system which it creates requires the relevant decision maker to have regard to, among other things, whether an applicant is a fit and proper person to hold a particular type of practising certificate, for the particular financial year the subject of the application. An applicant’s past conduct may be relevant or irrelevant to a finding of current fitness to practise, depending on the particular circumstances of the case. And a practising certificate application may be refused, even though the person is a fit and proper person to practise.[14]
[14]For example, because they were not eligible to apply at the relevant time.
A decision to refuse, suspend or cancel a practising certificate, or to impose particular conditions on it, is made to protect the public, not to punish the practitioner for past conduct.[15] And the decision only affects the application under consideration for the relevant year.[16]
[15]NSW Bar Association v Murphy (2002) 55 NSWLR 23 at [113] (“Murphy”).
[16] Murphy at [110].
VCAT’s role in a proceeding brought before it under part 2.4 is to review decisions made by the Board or its delegate, including decisions to grant, renew, suspend, amend or cancel certificates.
The stated purposes of chapter 4 are set out in paragraph [36] of these reasons; they relate to complaints and discipline, and are very different to the purposes of part 2.4.
VCAT’s jurisdiction in a proceeding brought under chapter 4 is not a review jurisdiction, it is original jurisdiction to determine civil and disciplinary complaints against practitioners. Disciplinary proceedings cannot even be instituted in VCAT unless the Commissioner, after an investigation, is satisfied that there is a reasonable likelihood that VCAT would find the practitioner guilty of a relevant offence.
The procedures which must be followed in a disciplinary matter are far more rigorous than in a practising certificate decision. That is a reflection of the fundamentally different nature of the two proceedings, and the seriousness of a possible misconduct finding.
If VCAT finds a practitioner guilty of unsatisfactory professional conduct, or professional misconduct, it must consider what is an appropriate sanction for what has taken place in the past. As happens in criminal proceedings, in the exercise of its disciplinary jurisdiction, VCAT is required to consider principles of punishment, denunciation, specific and general deterrence, and the like. Those are principles which have no role to play in a review proceeding concerning a practising certificate matter.
Even if a practitioner is found guilty of unsatisfactory professional conduct or professional misconduct, it does not necessarily follow that the past conduct makes the practitioner unfit to practise in the future.
In some cases, a practitioner may face both disciplinary and practising certificate proceedings. In such a case, it may be convenient to hear both proceedings at the same time. However, the fact that the same conduct may lead to consequences under one or both of chapters 2 and 4, does not mean that the two chapters duplicate each other.
The confusion in this case seems to have arisen from the connection between the two chapters created by s 2.4.37(3). That is the section which provides that, on a relevant review of a practising certificate decision, in addition to having the powers of the original decision maker, VCAT may make any order it could make under s 4.4.17 or 4.4.19 (except paragraph (a) thereof).
There are a total of 18 types of orders referred to in ss 4.4.17 and 4.4.19. Presumably, parliament did not want to state such a long list more than once in the LPA, and perceived s 2.4.37(3) as a convenient device to avoid such repetition. But there is no reason to believe that parliament thereby intended to remove the fundamental distinction between practising certificate proceedings and disciplinary proceedings.
Most of the 18 orders could be equally appropriate in a practising certificate proceeding or a disciplinary proceeding, such as orders requiring the practitioner to undergo further legal education,[17] seek advice,[18] submit to periodic inspection,[19] undergo supervision,[20] conduct their practice in a particular way,[21] report periodically on the practice,[22] have specific conditions or restrictions imposed on the practising certificate,[23] and the like.
[17]Section 4.4.19(c).
[18]Section 4.4.19 (i).
[19]Section 4.4.19 (h).
[20]Section 4.4.19 (d).
[21]Section 4.4.19(g).
[22]Section 4.4.19 (l).
[23]Section 4.4.17(d).
Others of them would not be applicable in a proceeding which only concerned a practising certificate decision. For example, it is obvious from the wording of the sub-section itself that an order that a practitioner pay a fine not exceeding a specified amount “in the case of a finding of unsatisfactory professional conduct [or …] professional misconduct”[24] is a power that could only be exercised in a disciplinary proceeding in which such a finding had been made. There is simply no power in the LPA to make such a finding in a practising certificate proceeding.
[24]Section 4.4.19(b).
There are other orders which it would not be appropriate to make in a practising certificate proceeding. However, in those cases, the inappropriateness of making such an order is not apparent in the text of the section, but requires one to have regard to the nature of the proceeding. For example, the power to reprimand a practitioner[25] is a power to impose a punishment for past misconduct. The purpose of a practising certificate decision is to protect the public, not to impose punishment. It would therefore be inappropriate for VCAT to reprimand a practitioner in a practising certificate proceeding.
[25]Section 4.4.19(k).
Sub-section 2.4.37(3) should be construed as empowering VCAT, in a practising certificate proceeding under part 2.4, to make any of the orders which it could make in a disciplinary proceeding to the extent to which they are appropriate having regard to the nature of the proceeding. It should not be construed in a way which ignores the fundamental differences between the two types of proceeding, and exposes a person to punishment for misconduct without any of the rigorous requirements and procedural safeguards in chapter 4 having being complied with.
There is a further complication. Sub-section 4.4.19(a) empowers VCAT to make certain compensation orders, of a type that could be made in respect of a civil dispute about costs. Section 2.4.37(3) specifically excludes sub-section 4.4.19(a) from the orders which VCAT can make in a certificate review proceeding. That exclusion is clearly appropriate, as such a power would be completely irrelevant in a part 2.4 review proceeding.
What is not clear is why parliament did not also specifically exclude other sub-sections, such as s 4.4.19(k) (the power to reprimand) or s 4.4.19(b) (the power to fine), from s 2.4.37(3). There is nothing in the extrinsic material which helps answer this question. It appears to be a drafting error to have specifically excluded one, but not the other, orders which would be clearly inappropriate to make in a practising certificate proceeding.
Part 2.4 and chapter 4 of the LPA serve very different purposes. Part 2.4 “should not be regarded as some kind of simpler alternative designed to serve the same purpose” as the disciplinary provisions in chapter 4.[26] More particularly, s 2.4.37(3) should not be construed in a way which allows VCAT to impose punishment for past misconduct without any of the rigorous requirements and procedural safeguards in chapter 4 having being complied with.
[26]The quoted words are those of Spigelman CJ in NSW Bar Association v Murphy (2002) 55 NSWLR 23 at 25 and 26, which were adopted with approval by Studdert J in Doherty v Law Society of NSW [2003] NSWSC 105. The NSW legislation under consideration in those two cases is not the same as the Victorian provisions under current consideration. However, the sentiment expressed in those cases is equally apposite here, and reflects the fundamentally different nature of the two types of proceeding.
Proposed grounds of appeal
Mr Delahunty’s proposed grounds of appeal have changed somewhat over time. His most recent proposed notice of appeal, dated 10 September 2012, lists 12 separate grounds. A number of the proposed grounds of appeal overlap somewhat with each other, or are not framed as clearly as they might have been. Given that Mr Delahunty is acting for himself, and is not a litigation solicitor, I have attempted not to adopt too technical an approach to his drafting; instead, I have tried to get to the heart of his complaints.
Grounds relating to the nature of the proceeding
Four of the proposed grounds deal in one way or another with the VCAT member’s treating chapters 2 and 4 of the LPA as dealing with the same matters and involving the same principles.
Ground 2 asserts that the VCAT member erred in finding that the principles applicable to disciplinary proceedings pursuant to part 4 of the LPA could, by virtue of s 2.4.37, also be applicable in determining the disposition upon a review of a decision that a person is not a fit and proper person to hold a practising certificate.
Ground 3 is described as being in the alternative to ground 2. It asserts that the VCAT member erred because he applied principles applicable to disciplinary proceedings under part 4, including principles relating to punishment and deterrence, in assessing whether Mr Delahunty was a fit and proper person under part 2.
Contrary to the LIV’s written submissions, the VCAT member did indeed make the finding referred to in ground 2.[27] And, he also clearly applied the principles applicable to disciplinary proceedings (including punishment and deterrence), in what was not a disciplinary proceeding. For the reasons given earlier, he committed legal error in doing both of those things, and grounds 2 and 3 are made out.
[27]At [49].
Ground 7 relates to the observation made by the VCAT member in paragraph [79] of the reasons, which is set out in full at paragraph [89] above. This was the paragraph in which the VCAT member said that “had Mr Delahunty been charged, on the information before me, I would have found him guilty of professional misconduct under part 4 in relation to his breaches of the Act and regulations.” The VCAT member then went on to say that he would have “imposed the same sanction” had this been a disciplinary proceeding.
Ground 7 is in the following terms:
A finding by the [VCAT member] that [he] would have found [Mr Delahunty] guilty of misconduct was unwarranted and prejudicial given:
(a) the [VCAT member] determined [he] could not make a finding under part 4 of the LPA on the present application;
(b) no investigation had been made by [the Commissioner];
(c) no particulars of a charge of professional misconduct had been given to [Mr Delahunty] pursuant to part 4 of the LPA;
(d) further, it follows that [Mr Delahunty] was not afforded natural justice as he was not given the opportunity to answer particulars of a charge of misconduct; and
(e) the LIV did not allege dishonesty;
(f) there was no evidence of dishonesty, nor evidence of wilful or reckless contravention of an Act or Regulation.
I agree with Mr Delahunty that the VCAT member’s remarks in paragraph [79] were unwarranted and highly prejudicial. They should never have been made. Although they are evidence of the VCAT member’s lack of understanding of the fundamental differences between part 2.4 and chapter 4 proceedings, they do not in themselves seem to have resulted in any of the orders under attack. Rather, they are framed in terms of what the VCAT member would have done, had he been able to make a formal finding of professional misconduct. Accordingly, I would not grant leave to appeal in respect of ground 7.
Ground 8 asserts that the VCAT member erred in finding that “in imposing a sanction under part 4, VCAT in effect finds that conduct would constitute professional misconduct or unprofessional conduct.”
This is a reference to what the VCAT member said in paragraph [78] of his reasons. The statement was made in the context of his recommending that, from a policy point of view, parliament should “integrate the part 2 and part 4 processes to avoid duplication.” Once again, it reflects his mistaken belief that parts 2 and 4 are concerned with the same matters and involve the same considerations. But the comment does not seem to have led to any particular order. And it is not clear how it adds anything substantial to grounds 2 and 3, both of which will succeed.
Failure to give reasons
Ground 5 asserts that the VCAT member failed to give reasons why, in the absence of dishonesty and impropriety, the public was not now protected, given that Mr Delahunty:
(a) Only sought an employee practising certificate;
(b) Would no longer be dealing with trust monies; and
(c) Would be subject to the supervision of Mr Naughton,
and, accordingly, failed to give reasons why Mr Delahunty was not a fit and proper person to hold an employee practising certificate.
A failure to give reasons, or a failure to give reasons which disclose the path of reasoning on a material question of fact, may constitute an error of law for the purpose of a provision like s 148 of the VCAT Act.
In so far as the ground is prefaced by a reference to “the absence of dishonesty and impropriety”, that is not the relevant test. A person may be found to not be a fit and proper person on the basis of serious incompetence, or for some other reason which does not involve dishonesty or impropriety.
Similarly, the inclusion in the proposed ground of the matters listed in paragraphs (a) to (c) is unnecessary, and invites this court to inquire into the merits of whether an employee practising certificate should have been granted given those facts.
The last part of the proposed ground really captures the proper basis for legal challenge. I will grant leave to amend proposed ground 5, to delete the irrelevant parts, and so as to read: “The VCAT member failed to give reasons why Mr Delahunty was not a fit and proper person to hold an employee practising certificate”.
As mentioned earlier, the VCAT member did not analyse the differences between an employee practising certificate and a full practising certificate. And, he kept referring to this being an application for a review of the decision to refuse to renew (the full practising certificate), rather than the decision to refuse to grant (an employee practising certificate). This lack of differentiation in conceptual framework may explain why the VCAT member fell into the legal error of not giving reasons (or reasons which disclosed the path of reasoning) as to why Mr Delahunty was not a fit and proper person to hold an employee practising certificate, as opposed to a full practising certificate. This ground of appeal is made out.
No error of law identified
Although described as errors of law, the following proposed grounds really raise errors of fact, and are therefore not able to be raised in an appeal under s 148 of the VCAT Act:
(a) Ground 4, which asserts that the VCAT member erred in finding that Mr Delahunty, as an employee solicitor, had significant responsibilities for the personal legal affairs for the clients at Morley Naughton Pearn & Cook;
(b) Ground 6, which asserts that the VCAT member failed to take into account, or give sufficient weight to nine matters which are said to be relevant to whether Mr Delahunty was a fit and proper person to hold an employee practising certificate;
Leave to appeal on grounds 4 and 6 should therefore be refused.
Ground not argued below
Ground 11 of the proposed notice of appeal asserts that the VCAT member erred in law in failing to find that the LIV was precluded, pursuant to condition 2 of the instrument of delegation dated 4 March 2010, from making a determination regarding the renewal of Mr Delahunty’s practising certificate, as the Board had assumed the functions, duties and powers with respect to the trust account investigation of Mr Delahunty.
This proposed ground raises an issue which was not argued before the VCAT member. It is not clear why it was not raised below. The LIV opposed the raising of the issue for the first time in this court.
Given that leave will be granted, and the appeal allowed, on a number of the other grounds, I do not propose to determine this ground of appeal. The matter can be properly argued on another occasion, if appropriate.
Remaining grounds
I would also refuse leave to appeal in respect of grounds 1, 9, 10 and 12, for the following reasons.
Ground 1 does not identify any particular legal error; it merely asserts that the VCAT member erred in law in finding that Mr Delahunty was not a fit and proper person.
Ground 9 asserts that “the disposition made was manifestly excessive.” Although manifest excess may constitute an error of law, it is neither necessary nor desirable that I determine this ground. That is because the appeal will be allowed on other grounds, and the matter remitted to VCAT for fresh determination on the merits and in accordance with proper legal principles.
Ground 10 asserts that the VCAT member “failed to consider an alternative range of orders which could have been made under s 2.4.37(3) of the LPA to ensure protection of the public.” This ground was only faintly argued before me, and it is not clear what the suggested legal error is.
Ground 12 asserts that in making orders pursuant to s 2.4.37, the VCAT member “failed to consider the deterrent effect of the appointment of a receiver to [Mr Delahunty’s] practice as an element of protection of the public.” It is not clear what this ground really means.
Conclusions
Leave to appeal will be granted in respect of proposed grounds 2, 3 and 5 (as amended), because:
(a) I am persuaded that the VCAT orders are attended by sufficient doubt to justify the grant of leave to appeal on those grounds; and
(b) In so far as grounds 2 and 3 raise issues of public interest concerning the nature of proceedings under part 2 of the LPA, that is a further relevant consideration in favour of granting leave.
I will not grant leave to appeal in respect of any of the other proposed grounds.
Grounds 2, 3 and 5 (as amended) being made out, I will allow the appeal. The VCAT orders will be set aside.
A question then arises as to the appropriate order for me to make under s 148(7) of the VCAT Act. Mr Delahunty urged me to set aside the VCAT orders and decide the case myself. The LIV said that, if I allowed the appeal and set aside the orders below, I should remit the proceeding to be heard and determined again by VCAT.
The LIV’s suggested disposition is the one that best accords with legislative intention. The legislature has entrusted the fact-finding exercise in hearings relating to practising certificates to VCAT, a specialist tribunal. In those circumstances, it is not desirable for the Supreme Court to evaluate the weight of the evidence, or substitute its own view of the facts, particularly where discretionary and value judgments remain to be made by VCAT. Generally speaking, it would not be not appropriate for this court to substitute a new decision for the VCAT decision, unless it were the only decision open to VCAT as a matter of law.
It is appropriate to remit the matter to VCAT, to be heard and determined by a different tribunal member.
I will hear from the parties as to the precise form of orders and as to costs.
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