Frugtniet v Law Institute of Victoria Inc

[2011] VSCA 176

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2011 0064

RUDY NOEL FRUGTNIET	Applicant
	v
LAW INSTITUTE OF VICTORIA LTD	Respondent

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APPLICATION ON SUMMONS

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JUDGES	TATE JA and ALMOND AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	3 June 2011
DATE OF JUDGMENT	3 June 2011
DATE OF REASONS	15 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 176
JUDGMENT APPEALED FROM	Law Institute of Victoria Ltd v Frugtniet (Legal Practice) [2011] VCAT 596 (Judge Jenkins)

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PRACTICE AND PROCEDURE – Whether leave to appeal required from an order that a person is a disqualified person, pursuant to s 2.2.6 of the Legal Profession Act 2004 – Whether extension of Stay should be granted in the circumstances.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr N Papas SC	Peter Monagle Lawyers
For the Respondent	Mr O P Holdenson QC	Joseph Barravecchio

TATE JA
ALMOND AJA:

1. By summons dated 4 May 2011, Mr Frugtniet, the applicant, sought leave to appeal against the orders of Judge Jenkins, Vice President of the Victorian Civil and Administrative Tribunal (‘VCAT’), made 8 April 2011, whereby she ordered that the applicant is a disqualified person for the purposes of Division 3 of Part 2.2 of the Legal Profession Act 2004 (‘the Act’), for a period of three years, pursuant to s 2.2.6(2) of the Act.

1. On the return of the summons on 3 June 2011 we heard from the parties and pronounced the orders which we have set out below.  We indicated that we would provide reasons in due course.  We now set out those reasons. 

1. It is unclear whether leave to appeal is necessary from an order that a person is a disqualified person.

1. Section 2.2.6 relevantly provides:

(1)The Board may apply to the Tribunal [VCAT] for an order that a person (other than an Australian legal practitioner) is a disqualified person for the purposes of this Division if the person –

(a)       has been convicted of a relevant offence;  or

(b)in the opinion of the Board has been a party to an act or omission that, if the person had been an Australian legal practitioner, may have resulted in a charge being brought in the Tribunal.

(2)The Tribunal may order that the person is a disqualified person for the purposes of this Division, for a specified period or indefinitely.

…

(5)A person against whom an order is made under this section may appeal to the Court of Appeal on a question of law.  

1. The terms of s 2.2.6(5) are cast in unqualified terms to suggest that they confer a right to appeal without the requirement for leave, albeit that the appeal is confined to a question of law.

1. The doubt that arises as to whether leave is necessary has its source in the terms of s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 which provides that:

(1) A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding –

(a) to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others; or

(b)       to the Trial Division  of the Supreme Court in any other case –

if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.

1. The decision on disqualification was here made by a Vice President and thus, in accordance with the terms of s 148, any appeal would be to the Court of Appeal, on a question of law, if and only if leave were granted.

1. The other questions raised in this matter (including whether a strike out should have been ordered and the question of costs) all turn on the primary question of disqualification. 

1. It is noteworthy that s 148 makes specific provision in relation to the powers the Court can exercise in determining an appeal from VCAT, including, under s 148(7)(b), the power to make an order that the Tribunal could have made in the proceeding. This can be contrasted with s 2.2.6(5) which makes no mention of any specific powers that might be exercised for the purpose of the disposition of the appeal, although, of course, it stands against the background of the general powers of the Court. However, the difference between s 148 and s 2.2.6(5) in this regard may become relevant for orders that will ultimately be made on the disposition of any appeal.

1. As there is some uncertainty as to whether or not leave to appeal is required, we considered it best to refer that question, and the question whether, if leave is required, it should be granted, to a bench of three judges who would determine those questions and, if appropriate, hear the appeal instanter. 

1. The applicant also sought a Stay of the order that he is a disqualified person until the hearing and determination of the application for leave to appeal.  A Stay had been granted by VCAT until 6 May 2011 which was then extended until 3 June 2011.

1. In Quinn v Law Institute of Victoria[1] Maxwell P and Buchanan JA observed that the principles governing Stay applications in legal disciplinary proceedings had been clearly identified by Winneke P (with whom Chernov JA agreed) in Woods v Legal Ombudsman:[2]

Legal practitioners who seek a stay of orders made by their disciplinary tribunal while an appeal is pending or for any other reason have the onus of persuading the Court that such a stay should be granted.  There are a number of balancing factors which will bear upon the Court’s decision as to whether such an indulgence should be afforded.  The first is that disciplinary proceedings against those who hold themselves out to the public as fit to practise, in this case the solicitors, are sui generis.  The discipline imposed, while punitive in its application to the practitioners involved, is very largely protective of the public interest.  Other matters which this Court will take into account will include the seriousness of the conduct which has led to the tribunal’s decision and the prospects which the instituted appeal has of succeeding. 

[1][2005] VSCA 326, [1].

[2][2002] VSCA 133, [7].

1. In the circumstances of this case we were mindful of the need to protect the public by ensuring that legal work is carried out by those who are properly qualified and entitled to do so.

1. We considered that the applicant had failed to provide the Court with sufficient evidentiary material on the basis of which a Stay should be granted with the duration he sought.  In particular, we were concerned that there was no evidence as to the prejudice he would suffer as a consequence of the order remaining in operation until the application for leave to appeal was determined.  There was no affidavit from the applicant setting out the prejudice the applicant might suffer in those parts of his business which he is entitled to carry out without being legally qualified, for example, his work in relation to conveyancing.  There was also no

evidence as to the extent of any disclosures he had made to those who employed him or those with whom he worked as to the order made by VCAT and his application for leave to appeal from that order.

1. In the circumstances, we considered it best to adjourn the application for a Stay until 17 June 2011 and to grant an interim Stay until 4.00pm on that date on the basis of a suitable undertaking being given by the applicant.  The applicant gave an undertaking, through his counsel, that he would not hold himself out as a legal practitioner nor hold himself out as an associate, and would not engage in legal practice nor engage in practice as an associate.  

1. Accordingly, the Court ordered that:

1.        The application for leave to appeal brought by summons dated 4 May 2011 be referred to a Bench of three judges and if leave is considered necessary, and if leave is granted, the Bench of three judges is to hear the appeal instanter.

2.        There will be a grant of leave to file and serve a draft notice of appeal within 28 days of today.

3.        The application for a stay is adjourned until 17 June 2011.

4. Upon the applicant by his counsel undertaking, as he has done so in this Court, not to hold himself out as a legal practitioner nor to hold himself out as an associate, and not to engage in legal practice nor to engage in practice as an associate, then an interim Stay is granted until 4.00pm on 17 June 2011 of the order made by Judge Jenkins, Vice President of the Victorian Civil and Administrative Tribunal made 8 April 2011, that the applicant is a disqualified person for the purposes of Division 3 of Part 2.2 of the Legal Profession Act 2004 for a period of three years.

5.        The costs of today's application be reserved.