Giurina v McLeay

Case [2024] VSCA 326

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCI 2023 0095
ERMANNO GIURINA Applicant
v
FIONA MCLEAY First Respondent
AND
THE COUNTY COURT OF VICTORIA Second Respondent

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JUDGES: LYONS and ORR JJA
WHERE HELD: Melbourne
DATE OF HEARING: 11 June 2024
DATE OF JUDGMENT: 20 December 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 326
JUDGMENT APPEALED FROM: Giurina v McLeay [2023] VSC 397

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ADMINISTRATIVE LAW – Appeal from judicial review – Applicant sought review of decision of County Court on appeal from Magistrates’ Court – Applicant convicted of breach of s 11(1) of Legal Profession Uniform Law by representing he was entitled to engage in legal practice when he was not a ‘qualified entity’ – Judicial review application dismissed – Whether judge erred in concluding s 11(1) created a strict liability offence – Whether judge erred by failing to find that County Court judge unreasonably concluded particulars of charge had been proved beyond reasonable doubt – Whether County Court judge erred by failing to grant relief in respect of County Court judge’s failure to consider applicant’s submission that he was a ‘qualified entity’ – Leave to appeal refused.


Legal Profession Uniform Law Application Act 2014, sch 1 ss 3, 6, 9, 10, 11 and 12.

He Kaw Teh v The Queen (1985) 157 CLR 523; Proudman v Dayman (1941) 67 CLR 536, applied; Law Society of New South Wales v Spring [2007] NSWSC 1273; Liberato v The Queen (1985) 159 CLR 507; R v Murray (1987) 11 NSWLR 12, considered; Batten v Legal Services Board (County Court of Victoria, Judge Parrish, 29 October 2013); R v Lane [2018] 1 WLR 3647; Pwr v DPP [2022] 1 WLR 789, distinguished.

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Counsel
Applicant: In person
First respondent: Ms J L Dodd
Second respondent: No appearance

Solicitors
Applicant: --
First respondent: Colin Biggers & Paisley
Second respondent: --

LYONS JA
ORR JA:

  1. The applicant is qualified as a lawyer but does not hold a practising certificate.

  2. In 2019, the first respondent,[1] the Victorian Legal Services Commissioner (the ‘Commissioner’), charged the applicant with breaching s 11(1) of the Legal Profession Uniform Law (the ‘Uniform Law’).[2] The charge alleged that on 24 January 2018, the applicant represented that he was entitled to engage in legal practice by attending the Supreme Court Registry and producing certain documents, and making certain statements, when he was not a ‘qualified entity’ within the meaning of the Uniform Law.

    [1]The second respondent, the County Court of Victoria, did not participate in the proceeding.

    [2]The Uniform Law is sch 1 of the Legal Profession Uniform Law Application Act 2014 (‘Application Act’).

  3. At all times, the applicant has denied the charge.

  4. On 20 November 2020, the Magistrates’ Court found the applicant guilty of the charge, fined him $5,000 without conviction and ordered him to pay costs. The applicant commenced an appeal in the County Court, which was conducted as a de novo hearing of the charge before her Honour Judge Brimer (whom…

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Giurina v McLeay [2024] VSCA 326
Case
[2024] VSCA 326
Decision Date

CaseChat Overview and Summary

In Giurina v McLeay, the applicant, Giurina, sought judicial review of a decision made by the County Court, which had itself been an appeal from the Magistrates’ Court. Giurina was convicted of contravening section 11(1) of the Legal Profession Uniform Law by representing to Ms Russo that he was entitled to engage in legal practice when he was not a ‘qualified entity.’ The primary issue before the court was whether the County Court judge erred in concluding that section 11(1) created a strict liability offence. Additionally, the court had to determine if the judge was incorrect in not finding that the County Court judge unreasonably concluded that the particulars of the charge had been proved beyond reasonable doubt. The applicant also argued that the County Court judge should have granted relief in respect of the failure to consider his submission that he was a ‘qualified entity.’

The court found that the County Court judge was correct in concluding that section 11(1) of the Legal Profession Uniform Law created a strict liability offence. The court reasoned that, in accordance with He Kaw Teh v The Queen, the determination of whether the applicant’s conduct amounted to an offence under section 11(1) depended upon the applicant’s words and actions and not what the applicant intended those words and actions to mean. The court further found that the County Court judge was correct in concluding that Giurina was not a ‘qualified entity’ at the time of the alleged offence and that the applicant had represented to Ms Russo that he was entitled to engage in legal practice.

The court also found that the County Court judge was correct in concluding that the particulars of the charge had been proved beyond reasonable doubt. The court found that the applicant's explanations for his actions were unsatisfactory and lacked candour. The court noted that the applicant's explanations for his careful answers in the interview with the Board were unsatisfactory and that even if it were accepted that the applicant had been attempting to draw a distinction between producing the evidentiary certificate per se and producing the evidentiary certificate for a particular purpose, that in itself would demonstrate a lack of candour.

Ultimately, the court found that the County Court judge did not err in concluding that section 11(1) created a strict liability offence, that the particulars of the charge had been proved beyond reasonable doubt, or in failing to grant relief in respect of the failure to consider the applicant’s submission that he was a ‘qualified entity.’ Therefore, the court dismissed the application for judicial review and refused leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The transcript shows that the applicant was evasive throughout his cross-examination. He often gave non-responsive or ambiguous answers, and when pressed, often said that things were hard to remember.County Court decision The County Court judge delivered ex tempore reasons at the conclusion of the hearing on 1 December 2021, which we will refer to as the ‘Ruling’. Her Honour found the applicant guilty, concluding that:(a)the offence created by s 11(1) of the Uniform Law is one of strict liability and, as a result, the determination of whether the applicant’s conduct amounted to an offence contrary to s 11(1) depended upon the applicant’s words and actions and not what the applicant intended those words and actions to mean;[9] and(b)based on the evidence of Ms Gaffey that the applicant’s volunteer practising certificate had expired on 30 June 2017 and that he did not have a practising certificate as at 24 January 2018, the applicant was not at that time a ‘qualified entity’ within the meaning of s 11(1).[9]Applying He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 (‘He Kaw Teh’). The County Court judge also concluded that she was satisfied beyond reasonable doubt that the applicant had represented to Ms Russo that he was entitled to engage in legal practice as alleged. Her Honour reached this conclusion by way of the following findings. First, given that Ms Russo told the applicant on 23 January 2018 she could not accept the habeas corpus application, it did ‘not ring true’ that the applicant would return the next day with the same documents, not being in a position to address Ms Russo’s concerns. As a result, her Honour was satisfied that the applicant came back with an amended originating process naming himself as litigation guardian, consistent with Ms Russo’s evidence. Second, the applicant was strongly motivated to convince Ms Russo on 24 January 2018 to accept the documents for filing. Third, Ms Russo’s evidence that the applicant told her he had a volunteer practising certificate and was working at a community legal centre was objectively supported by his production of the evidentiary certificate. Fourth, the applicant’s explanations for the production of his certificate of admission and the evidentiary certificate were recent inventions. The applicant could easily have told Ms Russo that he was a lawyer, without needing to produce those documents. Further, had those explanations been genuine, the applicant would have provided them in his interview with the Board rather than saying at that time that he could not recollect those documents being produced. Fifth, the applicant gave careful answers in the interview with the Board, which lacked candour. The explanations he later gave for his careful answers in the interview — such as that he had been answering questions on the basis that it was being alleged that he had produced the evidentiary certificate to represent an entitlement to practise — were unsatisfactory. Even if it were accepted that the applicant had been attempting to draw a distinction between producing the evidentiary certificate per se and producing the evidentiary certificate for a particular purpose, that in itself would demonstrate a lack of candour.

Ratio Decidendi

Legal Principle Established

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