Giurina v McLeay
[2023] VSC 397
•13 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 00112
| ERMANNO GIURINA | Plaintiff |
| v | |
| FIONA MCLEAY | First Defendant |
| and | |
| THE COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 March 2023 |
DATE OF JUDGMENT: | 13 July 2023 |
CASE MAY BE CITED AS: | Giurina v McLeay & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VSC 397 |
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ADMINISTRATIVE LAW – Judicial Review – Where, on appeal (by hearing de novo) against conviction from Magistrates’ Court, County Court found plaintiff guilty of breaching s 11(1) of the Uniform Law – Where plaintiff alleges 14 grounds of review of County Court decision – Whether grounds are valid grounds of review – Proper construction of s 11(1) - Whether s 11(1) of the Uniform Law is a strict liability offence – Whether County Court’s fact-finding was unreasonable.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ermanno Giurina - Self-represented | |
| For the First Defendant | J Dodd | Colin Biggers & Paisley |
HER HONOUR:
Mr Giurina commenced this proceeding under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules), seeking judicial review of orders made by Judge Brimer of the County Court on 1 December 2021. Those orders were made in respect of a single charge under the Legal Profession Uniform Law (the Uniform Law),[1] which her Honour found proved beyond reasonable doubt. The County Court hearing was an appeal from the conviction and sentence on the same charge recorded by the Magistrates’ Court. Mr Giurina has no automatic right of appeal against the County Court decision.
[1]Which is Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic) (‘Uniform Law’).
A judicial review of a decision made by a lower court is, self-evidently, not an appeal. As was said by the Court of Appeal of this Court’s supervisory jurisdiction:
In the present context, judicial review is the exercise by the Supreme Court of its supervisory jurisdiction over other courts in the State of Victoria, including the Magistrates’ Court and the County Court. This jurisdiction is supervisory, not appellate. In exercising the jurisdiction the Court does not assess the merits of the decision, it considers only whether the court below exceeded its jurisdiction and whether it observed the law in reaching the relevant decision.[2]
[2] Austin v Dobbs [2019] VSCA 296, [88].
Mr Giurina’s Amended Originating Motion identifies 14 grounds of review. Each ground commences by saying ‘the County Court of Victoria erred in law’, before identifying particular conduct or conclusions. The description of each ground as an error of law does not necessarily make the conduct or conclusion complained of one that could properly be described as something that either exceeded jurisdiction or amounted to a failure to observe the law in reaching the decision that the charge was proven.
The submissions of the plaintiff and the first defendant proceeded on the basis that all grounds were capable of being properly described as legal errors and subject to judicial review, and they each made submissions on whether the particular ground was made out or not. This was a practical approach in circumstances where the plaintiff was self-represented, albeit he is a person who has been admitted to legal practice. The second defendant did not participate in the hearing and will abide by the outcome.
Events giving rise to the charge
The plaintiff has been an Australian legal practitioner and held a Victorian practising certificate before 16 October 2017. The plaintiff reapplied for a volunteer practising certificate on 26 May 2017. By letter dated 12 July 2017 (the 12 July letter), the Victorian Legal Services Board (the VLSB) indicated to the plaintiff its preliminary view that it did not consider him a fit and proper person.[3] Mr Giurina responded and then on 16 October 2017 the VLSB sent a letter by email to the plaintiff advising him of its decision not to grant him a volunteer practising certificate (the decision not to renew).[4] The plaintiff alleged he did not receive this correspondence as he says it went to his ‘spam’ email folder.
[3]’Letter from the VLSB to E Giurina dated 12 July 2017’, Exhibit E filed in Ermanno Giurina v Fiona McLeay (County Court of Victoria, AP-20-1473).
[4]’Letter from the VLSB to E Giurina dated 16 October 2017’, Exhibit G filed in Ermanno Giurina v Fiona McLeay (County Court of Victoria, AP-20-1473).
On 23 January 2018, the plaintiff attended the Supreme Court Registry (registry) to file a habeas corpus application pursuant to Order 57 of the Rules. The plaintiff intended to bring the application against the hospital to have his mother released from hospital and other unspecified relief. The application listed himself and his mother as plaintiffs. At registry, the plaintiff met with Natasha Russo, who advised that she would not accept the filing without the writ being signed by both Mr Giurina and his mother, and that the application also required an affidavit in support from his mother.
On 24 January 2018, the plaintiff returned to registry and met again with Ms Russo. The plaintiff produced to Ms Russo a copy of his Certificate of Admission (the admission certificate) and a copy of an evidentiary certificate from the VLSB (the evidentiary certificate). There was a dispute between the plaintiff and the first defendant as to the reason why he produced these two documents. The plaintiff said it was in order to demonstrate his familiarity with the Rules as an admitted lawyer and to confirm his name.
The first defendant alleged and the plaintiff denied that he also produced a Certificate of Solicitor (solicitor’s certificate) to Ms Russo, and made statements to Ms Russo representing that he was a practising solicitor. The solicitor’s certificate was said by Ms Russo to be a certificate in accordance with Order 15 of the Rules when a person sues through a litigation guardian.
The VLSB, informed of this conduct, subsequently invited the plaintiff to attend an interview concerning his meeting with Ms Russo on 24 January 2018 (the interview). This interview took place on 21 December 2018 and a record of interview produced. On 16 January 2019, the first defendant charged the plaintiff with one count of breaching s 11(1) of the Uniform Law. The charge is particularised that on 24 January 2018 the plaintiff represented an entitlement to legal practice by:
attending the Supreme Court of Victoria Registry and producing a Certificate of Admission, an evidentiary certificate from the Victorian Legal Services Board, and a Certificate of Solicitor to demonstrate his entitlement to engage in legal practice, and by making statements to Registry staff to the effect that he was a practising solicitor, and at the time the Accused was not a qualified entity.[5]
[5]Plaintiff, ‘Affidavit in Support of Originating Motion’ sworn on 13 January 2022 in Giurina v McLeay & Anor ECI 2022 00112, document exhibited at EG-1, Charge Sheet for Ermanno Giurina dated 16 January 2019.
On 20 November 2020, the plaintiff was found guilty of the charge in the Magistrates’ Court. He was fined $5,000 without conviction and ordered to pay costs of $14,850.
Relevant legislative provisions
Section 11(1) of the Uniform Law provides:
11Prohibition on advertisements or representations by or about unqualified entities
(1)An entity must not advertise or represent, or do anything that states or implies, that it is entitled to engage in legal practice, unless it is a qualified entity.
Penalty: 250 penalty units.
Section 6 of the Uniform Law defines ‘qualified entity’ as including, relevantly:
(a) an Australian legal practitioner; or
…
(d)an individual engaged in legal practice under the authority of a law of the Commonwealth or of a jurisdiction other than this Law or the Uniform Rules; or
…
An Australian legal practitioner in turn is defined as an ‘Australian lawyer who holds a current Australian practising certificate’.
The County Court trial
The plaintiff appealed the Magistrates’ Court decision to the County Court of Victoria. The appeal was heard as a de novo hearing before Judge Brimer from 29 November to 1 December 2021.
The first defendant called three witnesses: Natasha Russo, Katherine Price, and Laura Gaffey. The plaintiff represented himself and also gave evidence.
In relation to the plaintiff’s production to Ms Russo of the admission certificate, the evidentiary certificate and the solicitor’s certificate on 24 January 2018, the plaintiff gave evidence that he had:
(a) produced a copy of his admission certificate to indicate to Ms Russo that he had been admitted as an Australian lawyer and was someone familiar with the rules of the Court;[6]
(b) produced a copy of the evidentiary certificate in order to demonstrate that the names ‘Ermanno’ and ‘Hermann’ (on his habeus corpus application and admission certificate respectively) corresponded to the same person;[7] and
(c) not produced a solicitor’s certificate.
[6]Transcript of proceedings, Ermanno Giurina v Fiona McLeay (County Court of Victoria, AP-20-1473, Judge Brimer, 29 November-1 December 2022) 115.28 (‘County Court Transcript’).
[7]County Court Transcript 116.14.
Ms Russo, who at the time was deputy prothonotary and acting in the role of self-represented litigant co-ordinator, gave evidence. She said that when Mr Giurina first attended she refused to accept the writ for filing as it had not been signed by his mother. When the plaintiff returned on 24 January she said he produced an amended writ that named himself as litigation guardian for his mother, which avoided the need for his mother’s signature.[8] Ms Russo said that Mr Giurina produced the admission certificate to her, confirming he had been admitted to practise. On consultation with Kate Price, Ms Russo advised Mr Giurina that he needed a current practising certificate and he produced the evidentiary certificate. She said that the plaintiff also produced a solicitor’s certificate as required by Order 15 of the Rules to her. Ms Russo said she raised with Mr Giurina the requirement of a solicitor’s certificate under Order 15 and he showed her the solicitor’s certificate.
[8]Ibid 23.28-30.
She said that Mr Giurina told her he currently held a volunteer practising certificate. Her understanding was that Mr Giurina was producing documents in answer to the information needed to satisfy all the rules for filing the proceeding. The evidentiary certificate said that the practitioner held a volunteer practising certificate due to expire on 30 June 2018.[9] Ms Russo called the VLSB to inquire whether there were any restrictions on practitioners who held volunteer practising certificates and was informed that Mr Giurina’s practising certificate had been revoked.
[9]’Copy of Evidentiary Certificate from Victorian Legal Services Board dated 14 November 2017’, Exhibit A filed in Ermanno Giurina v Fiona McLeay (County Court of Victoria, AP-20-1473).
Mr Giurina contested Ms Russo’s evidence and cross-examined both Ms Russo and Ms Price.
Ms Gaffey gave evidence that an evidentiary certificate is generally provided by the VLSB under s 446 of the Uniform Law. Such evidentiary certificates were usually produced for regulatory matters. In Mr Giurina’s case, the evidentiary certificate had been provided to the OPP in response to a request by them in November 2017 and was contained in a hand up brief sent to Heidelberg Magistrates’ Court and copied to Mr Giurina. She also gave evidence as to the interview she conducted with Mr Giurina on 21 December 2018.
Judge Brimer found:
(a) The offence created by s 11(1) of the Uniform Law is one of strict liability.[10]
[10]Transcript of Ruling, Ermanno Giurina v Fiona McLeay (County Court of Victoria, AP-20-1473, Judge Brimer, 1 December 2021) 3.26-4.11 (’County Court Ruling Transcript’).
(b) Section 11(1) of the Uniform Law captures any act of holding out an entitlement to practice.[11]
[11]Ibid 4.30-5.6.
(c) The plaintiff was not a qualified entity within the meaning of s 11(1) of the Uniform Law on 24 January 2018.[12]
[12]Ibid 5.
(d) In relation to the events of 24 January 2018, her Honour preferred Ms Russo’s evidence to the plaintiff’s, and was satisfied beyond reasonable doubt that:
Mr Giurina showed Ms Russo a solicitor’s certificate that he had signed pursuant to Order 15; that he told her that he had been admitted many years before and showed her his certificate of admission; that he told her that he had a volunteer practising certificate and was currently volunteering at a community legal centre and showed her a copy of the evidentiary certificate dated 14 November 2017 in response to her telling him that he needed a practising certificate.[13]
(e) The defence of honest and reasonable mistake raised by Mr Giurina had been negatived by the first defendant, as the evidence established that the plaintiff ‘did not hold a belief as to an entitlement to practice and he would not have had reasonable grounds for doing so’.[14]
[13]Ibid 14.16-25.
[14]Ibid 15.
The plaintiff was fined $5,000 without conviction and ordered to pay costs of $28,850.[15]
[15]Result of Appeal AP-20-1472 dated 1 December 2021.
Additional evidence sought to be relied on in the judicial review
Ordinarily, evidence that was not before the decision-maker at the time of making the decision is not admissible in judicial review proceedings.[16] New or fresh evidence, sometime referred to as extrinsic evidence, is not admitted as of right.[17] It may be admissible depending on its relevance to the grounds of appeal and the circumstances of the case.[18] Extrinsic evidence may be admissible if it would materially affect the outcome of the proceeding.[19]
[16]Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, 564 [454] (‘Australian Retailers’).
[17]Ibid 566 [459].
[18]Chandrav Webber (2010) 187 FCR 31, [40]; Australian Retailers (n 16) 566 [459]; see also TSH v Department of Families, Fairness and Housing [2022] VSC 390; Florance v Andrew (1985) 58 ALR 377 (‘Florance’).
[19]Florance (n 18) 381 (and authorities referred to therein).
The evidence before me in this judicial review includes all of the materials that were before the County Court.[20] The plaintiff also sought to adduce extrinsic evidence including that contained in an affidavit sworn 13 January 2022. Although initially taking a broad objection to all further evidence, the first defendant consented to the tender of the plaintiff’s application for renewal of his practising certificate dated 26 May 2017, and to the contents of the affidavit of 13 January save for paragraphs 16-20 and 30 (the disputed paragraphs)[21] as extrinsic evidence. It is only necessary to consider those aspects to which objection is maintained.
[20]Transcript of Proceedings, Giurina v McLeay & Anor (Supreme Court of Victoria, S ECI 2022 00112, Justice Forbes, 22 March 2023) 7.26-8.4 (‘T’).
[21]T 8.8.
The disputed paragraphs deal with a discrepancy the plaintiff identified between the evidentiary certificate shown by him at Registry and the document shown to him during the interview, being a composite bundle of documents. The plaintiff disputed whether the evidentiary certificate was contained in the composite bundle of documents. He provided a description of the circumstances surrounding particular questions (being Q97 and Q105-111), his inability to recall what he was shown at the time, and an explanation of what his answers meant.
Are the disputed paragraphs new evidence?
The plaintiff submits that none of the disputed paragraphs are new evidence at all and all are based upon the evidence below.[22] He provided transcript references in support of this submission. If the paragraphs add nothing new then there is no basis to admit the paragraphs. They are simply a chronology of factual matters that were already before the County Court. The plaintiff could make his submissions based upon the existing evidence.
[22]T 11.17-19; T 12.13-14; T 12.28-31; T1 3.2-6; T 12.10-13.
To the extent that those paragraphs go beyond the earlier evidence, it is because they seek to provide either further evidence of the plaintiff’s recollection or interpretation of the events. The plaintiff submits that the relevant paragraphs are new evidence and should be allowed before this Court because they are relevant to Ground 5.
The first defendant submits that there was a discrepancy between the record of interview and the evidence given in the County Court that was the subject of cross-examination and explanation in the appeal.[23] The relevant paragraphs of the affidavit introduce a new explanation for the discrepancy: that he was shown a composite document at the interview and that he could not recall whether the evidentiary certificate was contained within it. This explanation was not put to Ms Gaffey, who conducted the interview, when she was cross-examined.
[23]T 19.1-20.5.
In short the first defendant submits that the explanations contained in the paragraphs are inconsistent with the evidence provided by Mr Giurina to the County Court.
I accept that the disputed paragraphs do contain matters that were not before the County Court. The explanations sought to be provided are new evidence. The explanations are different to those given at trial. To the extent that the paragraphs express opinion or submission as to a belief held by Mr Giurina these are not matters of relevant evidence. This includes a belief that Judge Brimer could not reach a conclusion beyond reasonable doubt about whether the evidentiary certificate was shown to the plaintiff during the interview.
Should the disputed paragraphs be admitted as new evidence?
Mr Giurina relies on the test for admission of new evidence applicable to criminal appeals. He submits that the new evidence should be received where it discloses error in the decision at first instance so it becomes necessary to receive the evidence to avoid a miscarriage of justice.[24] He submits that the principle applies by analogy even though this is a judicial review as it is his only avenue available to him to correct legal error in his conviction.
[24]Betts v The Queen (2016) 258 CLR 420 (‘Betts’); Packard v The Queen [2022] VSCA 128.
The plaintiff relies on Betts v The Queen (‘Betts’),[25] which concerned the consideration of a sentencing discretion by an appellate court. It is correct to say, as Mr Giurina submits, that the appellate court has the flexibility to receive new evidence where it is necessary to avoid a miscarriage of justice. However, the principle is applied within the context that in appealing a criminal sentence ‘an offender is not permitted to run a new and different case’.[26] In Betts the new evidence was not admitted as it ‘was inconsistent with the case that [the offender] ran in the sentencing court’.[27]
[25]Betts (n 24).
[26]Ibid 423 [2].
[27]Ibid 423 [2].
The first defendant submits that the issue is to be determined by the particular grounds of review and the particular circumstances of the judicial review and not by analogy to principles applicable to criminal appeals. The first defendant relies on Florance v Andrew[28] and the authorities cited there.
[28]Florance (n 18) 381.
To the extent that the disputed paragraphs amount to new evidence they provided a further explanation for, or perhaps interpretation of, the evidence before the original decision-maker. In this characterisation they are matters inconsistent with the evidence and explanation given below. I have real doubt that the test applicable to an appeal against the exercise of a discretion in sentence following criminal conviction is analogous to the exercise of a review jurisdiction under Order 56 of the Rules, as Mr Giurina submits. However, even if by analogy that is the applicable test, the disputed paragraphs would not be admissible as they seek to advance an explanation or interpretation of answers given different to that raised at trial.
On the relevant test for admission of new evidence in a judicial review, the disputed paragraphs would need to be relevant to identified grounds of review taking into account all the circumstances of the case.[29] There are grounds of review that address the fact-finding process of a decision maker including that a decision was legally unreasonable. The plaintiff relies on the disputed paragraphs as relevant to Ground 5: an adverse finding of credibility of the plaintiff that was unreasonable. The first defendant submits that the disputed paragraphs could perhaps also be relevant to Ground 7: a ground of unreasonableness going to the finding of recent invention.
[29]McCormack v Deputy Commissioner of Taxation (2001) 114 FCR 574, 587 [38]-[40].
Assuming for the present that such grounds can be maintained and assuming that the disputed paragraphs are relevant to those grounds, the plaintiff would need to demonstrate that if adduced at the trial a different outcome was likely to have resulted.[30] The first defendant submits that the new evidence sought to be tendered in the disputed paragraphs was not raised before the judge below – and could not have been without detriment to the plaintiff’s case because of its inconsistency with other evidence given by him – and so it cannot be argued that the judge’s reasoning was unreasonable, irrational or illogical to such an extent that the new evidence should be admitted.[31]
[30]Florance v Andrew (n 18) 381.
[31]T 24.6-13.
In my view, even if relevant to Ground 5 or Ground 7, the admission of the disputed paragraphs by their inconsistency with other explanations could not demonstrate that the decision was legally unreasonable.
The affidavit of the plaintiff sworn 13 January 2022 is admitted, excluding paragraphs 16 to 20 inclusive and paragraph 30.
The Plaintiff’s Proposed Further Submissions
In addition to the submissions filed prior to the hearing, after I had reserved my decision, on 24 March 2023 Mr Giurina informed the Court by email that he sought to rely on further written submissions. The first defendant neither consented to nor opposed the Court receiving those submissions and provided comment in the event the Court did consider them. The additional submissions addressed matters that Mr Giurina felt he was unable to properly address in is reply because of time constraints and I have concluded it is appropriate to consider them. The submissions were largely directed at the question of whether s 11(1) is a strict liability offence and whether provision of the decision not to renew by email was compliant with service as required by the Uniform Law.
The Grounds of Review
The fourteen grounds are:
Ground 1:An error in the construction of s 11(1) concluding that it captures any act of holding out an entitlement to engage in legal practice.
Ground 2:It was unreasonable for the judge to be satisfied beyond reasonable doubt that the plaintiff represented an entitlement to engage in legal practice by producing a certificate of admission.
Ground 3:It was unreasonable for the judge to be satisfied beyond reasonable doubt that the plaintiff represented an entitlement to engage in legal practice by producing an evidentiary certificate from the VLSB.
Ground 4:The judge failed to properly analyse the evidence as to Q 91 in the record of interview and the plaintiff’s answer to that question, which led to the judge unreasonably making adverse findings as to the plaintiff’s credibility.
Ground 5:The judge failed to properly analyse the evidence as to Q 97 and following in the record of interview and the plaintiff’s answers to those questions, which indicated that the document shown to the plaintiff in the record of interview was a different document to the one alleged to have been produced by the plaintiff on 24 January 2018 and which led to the judge unreasonably making adverse findings as to the plaintiff’s credibility.
Ground 6:The judge did not afford the plaintiff procedural fairness by permitting cross-examination on the basis that his explanation as to the reason for production of an evidentiary certificate was a recent invention.
Ground 7:It was unreasonable for the judge to conclude that the explanation for production of the plaintiff’s admission certificate was recent invention.
Ground 8:It was unreasonable for the judge to be satisfied beyond reasonable doubt that the plaintiff represented an entitlement to engage in legal practice by producing a certificate of solicitor.
Ground 9:It was unreasonable for the judge to be satisfied beyond reasonable doubt that the plaintiff made statements to registry staff to the effect that he was a practising solicitor.
Ground 10:It was unreasonable for the judge to be satisfied beyond reasonable doubt that the plaintiff was not a qualified entity.
Ground 11:The judge failed to consider whether the definition of ss 6(d) applied to the plaintiff and failed to consider the plaintiff’s submissions on that point.
Ground 12:The judge erred in admitting into evidence a letter written by the plaintiff of 15 October 2018 (tendered in the County Court proceeding as Exhibit J).
Ground 13:The judge erred in concluding that s 11(1) of the Uniform Law is an offence of strict liability.
Ground 14:Even if the offence is one of strict liability, it was unreasonable for the judge to have been satisfied beyond reasonable doubt that the defence of honest and reasonable mistake had been negatived by the first defendant.
In these reasons, I will deal with the grounds by grouping them in the common issues that arise, as was done during the hearing.
The offence created by s 11(1) of the Uniform Law (Grounds 1 and 13)
Ground 1
By Ground 1 the plaintiff argues that Judge Brimer applied the wrong test when her Honour concluded that s 11(1) of the Uniform Law captured any act of holding out an entitlement to practise as a single offence. Such an error – misconstruing the nature of the offence – would be one of jurisdiction.
The plaintiff submits that s 11(1) of the Uniform Law creates four activities that separately are capable of amounting to an offence. The plaintiff submits that a charge has to relate to one, but not more than one of those activities.[32] Those ways reflect the four actions described: to ‘advertise’, ‘represent’, ‘state’ or ‘imply’. The plaintiff submits that the actions are joined by a disjunctive ‘or’ indicating that satisfaction of one condition will be sufficient to establish the offence, but that each activity was distinct creating four separate ways the offence might be established.[33] He contrasts the present wording of the Uniform Law with that of the predecessor Legal Profession Act2004 (Vic), which provided:
[32]T 31.3-13.
[33]T 31.21-22; Plaintiff, ‘Submissions in Reply of Ermanno Giurina’, Submissions in Giurina v McLeay & Anor S ECI 2022 0012, 15 March 2023, [16], citing Nasr v Police [2017] SASC 138.
2.2.3Prohibition on representing or advertising entitlement to engage in legal practice when not entitled
…
(4) A reference in this section to a person—
(a)representing or advertising that the person is entitled to engage in legal practice; or
(b)representing or advertising that a body corporate is entitled to engage in legal practice—
includes a reference to the person doing anything that states or implies that the person or the body corporate is entitled to engage in legal practice.
He submits that by removing text that a representation ‘includes’ certain matters, Parliament has intended that s 11(1) of the Uniform Law deals with distinct activities.[34]
[34]T 32; Plaintiff, ‘Outline of Submissions of Ermanno Giurina in Relation to Application for Judicial Review’, Submissions in Giurina v McLeay & Anor S ECI 2022 0012, 20 January 2023, [43].
The plaintiff submits that ‘to represent’ is distinguishable from ‘to state’ or ‘to imply’, as otherwise the latter words would have no work to do.[35] In the plaintiff’s submission, ‘to represent’ is akin to providing a warranty or guarantee and is something more than a mere implication or statement.[36] The charge against him alleges only that he represented an entitlement to engage in legal practice and therefore it was impermissible to look at statements or implied matters. He submits that by accepting a submission that in handing over the admission certificate and the evidentiary certificate the plaintiff was stating or implying an entitlement to engage in legal practice, her Honour erred because the submission went outside the charge as presented.
[35]T 31.3-13.
[36]Plaintiff’s Submissions dated January 2023, [31].
The plaintiff further submits that, on his construction of s 11(1) of the Uniform Law, only presentation of the original admission certificate or original evidentiary certificate could have amounted to a representation (in the sense of a warranty or a guarantee) that the plaintiff was entitled to engage in legal practice. The plaintiff submits that an original document is required because only the original document could prove the matters stated in the document.[37] As the parties accepted, and the judge concluded, the plaintiff showed Ms Russo only copies of his admission certificate and evidentiary certificate. The plaintiff submits that his actions did not reach the necessary threshold to amount to a representation.[38]
[37]Plaintiff’s Submissions dated 20 January 2023, [33]; T 36.1-17; T 66.1-9.
[38]Plaintiff’s Submissions dated 20 January 2023, [33].
The first defendant submits that the four actions contained within s 11(1) of the Uniform Law have significant overlap, and as a question of statutory construction this overlap is a key factor against construing the provision as creating multiple offences or as creating one offence prescribed in four distinguishable ways.[39] In the first defendant’s submission, this overlapping nature supports the purpose of the legislation.[40] Although the charge sheet only refers to a ‘representation’, because s 11(1) is a single offence, the meaning of ‘represent’ should not be narrowly construed. The first defendant submits that the judge committed no error when considering statements and conduct of the plaintiff as representations.[41]
Ground 13
[39]Citing DPP v Kypri (2011) 33 VR 157, 161-2 [8]-[13] (Nettle JA).
[40]T 89.14-22.
[41]T 92.5-16.
By Ground 13, the plaintiff argues that the judge erred in law by concluding that the offence created by s 11(1) of the Uniform Law was a strict liability offence. Such an error, misconstruing the elements of the offence, would also be one of jurisdiction.
The plaintiff submits that there is no clear intention in the Uniform Law that s 11(1) should be a strict liability offence. The plaintiff notes that there is no case law dealing specifically with this question, and submits that, with no clear intention in any extrinsic legislative materials, the presumption should be that a fault element is required as part of the offence.[42] The plaintiff relies on Batten v Victorian Legal Services Board (‘Batten’),[43] which concerned a prosecution under the predecessor sections to ss 10 and 11 of the Uniform Law, said to have been determined on the basis that knowledge was implicitly a necessary element of the offence. He also relied on Green v Legal Profession Admission Board (‘Green’),[44] where a person not admitted to practise was cautioned regarding court documents he signed as a solicitor, despite clearly understanding that he was not admitted to practise.
[42]Plaintiff’s Submissions dated 20 January 2023, [161]-[162].
[43]Batten v Legal Services Board [2013] VCC 2156 (‘Batten’).
[44][2020] NSWSC 1655.
The plaintiff submits that there is considerable overlap between ss 10 and 11 of the Uniform Law. As such, he submits it is unlikely that the legislature intended s 10 not to be a strict liability offence (as it carries the prospect of imprisonment) but intended that s 11 does impose strict liability. He submits that the act of engaging in legal practice involves such conduct that a breach of s 10 necessarily overlaps with the activities encompassed in s 11 such that both sections should require a mental element.[45] He also submits that the fact that prosecution under ss 10 or 11 of the Uniform Law is protective rather than punitive in purpose makes it more likely that both sections require a mental element.[46]
[45][2007] VSC 1; Plaintiff’s Submissions dated 20 January 2023 [179]-[180].
[46]Plaintiff’s Submissions dated 20 January 2023, [163], citing Pumpa v Victorian Legal Services Board [2017] VSC 629.
The first defendant submits that s 11(1) is properly characterised as a strict liability offence because the language of s 11(1) does not state or otherwise require a fault element as an element of the offence, and because the application of strict liability to s 11(1) would promote the Uniform Law’s purpose of protecting the public.[47]
The trial judge’s conclusions
[47]First Defendant, ‘First Defendant’s Written Outline of Submissions’, Submissions in Giurina v McLeay & Anor S ECI 2022 0012, 17 February 2023, [62].
Judge Brimer rejected the plaintiff’s preferred construction of ‘represent’.[48] Her Honour said:
I agree with [Counsel for the prosecution] that by its ordinary meaning the section captures an act of holding out an entitlement to practice. Mr Giurina submitted that it is something that is separate from something stated or implied, to represent is more in the nature of a warranty. I do not agree. The ordinary meaning of ‘representation’ includes the act of presenting something in a particular way.[49]
[48]County Court Transcript 178-181; see Plaintiff’s Submissions dated 20 January 2023, [30].
[49]County Court Ruling Transcript 4-5.
Judge Brimer also concluded that the offence was one of strict liability and determining whether or not the conduct and words amounts to an offence turns on those words and actions and their context. She concluded that what Mr Giurina intended to convey was immaterial. The conclusion that the offence was one of strict liability was reached with consideration of He Kaw Teh v The Queen[50] and the indicia identified by Gibbs CJ as indicating displacement of the presumption of a mental element of an offence.
Consideration of Ground 1
[50](1984) 157 CLR 523 (‘He Kaw Teh’).
Whilst there can be little doubt that s 11(1) separately identifies four actions capable of constituting an offence, the real question raised by Mr Giurina is whether those actions are exclusive of each other, creating four separate ways that an offence might be proved, or four ways that individually or in combination amount to a single offence.
In F, BV v Magistrates Court of South Australia & Anor,[51] Kourakis CJ (with whom Gray J agreed) said:
[T]he general rule of construction is that where basic conduct is prescribed if it occurs in any one or more of the circumstances prescribed by a statute, only a single offence is created.[52]
[51](2013) 115 SASR 232.
[52]Ibid 260 [95].
In Romeyko v Samuels,[53] the Full Court of the South Australian Supreme Court considered the situation of a defendant charged with one count of knowingly sending a postal article containing five various characteristics. The Court addressed the question of whether the relevant section created multiple offences such that the single charge was bad for duplicity. Bray CJ (with whom Bright and Sangster JJ agreed) said:
The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics.[54]
[53](1972) 19 FLR 322.
[54]Ibid 345.
I reject the plaintiff’s submissions on the proper construction of s 11(1). The relevant act is communicating an entitlement to legal practice. That conduct broadly may be described as ‘advertising or representing or doing anything that states or implies’ an entitlement to practise. Those four actions are not exclusive of each other and are various ways that an entitlement to practise might be communicated to others. An advertisement is clearly a form of public representation to an audience at large. A representation may be oral or written, made by way of explicit statement, or may be implied either from the actual words used or from the surrounding conduct. Mr Giurina is correct to say that any one element is sufficient to constitute an offence. Equally where the conduct meets more than one characteristic in the section, it remains capable of being sufficient to constitute that same offence.
Mr Giurina relies on Nasr v Police[55] and the construction of s 20 of the Criminal Law Consolidation Act1935 (SA) which provides for the offence of assault. Section 20 has five subsections and was construed to contain two offences. Mr Giurina’s reply submissions observe that s 11(1) does not follow the structure of the section construed in Nasr and that because its structure is different, this is a reason not to accept the construction found by her Honour.[56] Put simply, the construction of the section turns on the words of the section itself. The task is poorly informed by a submission that if the section was constructed in a different manner, the imposition of a single offence might be more readily accepted.
[55][2017] SASC 138.
[56]Plaintiff’s reply submissions dated 15 March 2023 paragraph [20].
The submitted construction that a representation is akin to the provision of a warranty or guarantee is also rejected. The ordinary meaning of ‘represent’ includes to be something, as well as to act or speak on behalf of another. The latter is in common use in terms of the legal profession. To represent in the sense of to be (or to incorporate Judge Brimer’s phrase, to hold oneself out to be) is the plain meaning of the word and consistent with the object and purpose of the Uniform Law and the regulation of legal practitioners. I am not persuaded that by the change in the wording of the section, Parliament intended any significant change. At the very least, the phrase ‘do anything that states or implies’ works to ensure that any advertising or representation covers both explicit statements and matters implied from words or other conduct.
There have been no cases identified that construe s 11(1). By analogy Mr Giurina relied on Overdean Developments v Garslev Holdings Pty Ltd (No 3) (‘Overdean’),[57] in which Williams J considered whether a person admitted to legal practice was entitled to payment for his work in accordance with invoices submitted. The legal practitioner in question had previously been an Australian legal practitioner as defined, but was not so at the time of carrying out the invoiced work. Section 10 of the Uniform Law provides that an entity ‘must not engage in legal practice…unless it is a qualified entity’. The phrase ‘engage in legal practice’ is defined in s 6 of the Uniform Law. Justice Williams referred to the significant body of case law that addressed the meaning of ‘engage in legal practice’ and said:
As I have already noted, the definition of ‘engage in legal practice’ in s 6 of the Uniform Law is expressed in broader terms in that it specifically includes not only practicing law but also the provision of legal services. The word ‘or’ in the definition ‘practice law or provide legal services’ indicates that an activity may constitute the provision of legal services (and therefore engaging in legal practice within the meaning of s 10) even if it does not constitute practicing law.[58]
[57][2021] NSWSC 1482 (‘Overdean’).
[58]Ibid [786].
In my view, the reasoning in Overdean by analogy does not support the plaintiff’s submission. Rather her Honour accepted that the use of ‘or’ broadened the definition to circumstances beyond acts that amount to practising law.[59] In s 11(1) the use of ‘or’ similarly broadens conduct caught by the section.
[59]Ibid [78].
Nor is there any merit to the plaintiff’s submission that to amount to a representation, the original document and not a copy of it had to be shown. The judge was correct to reject this submission. Mr Giurina’s analogy with the provision of original licence or passport to prove identification is misconceived as he was not providing documents to prove his identity. He was showing the documents while attempting to file a document, and on his own evidence, to demonstrate a familiarity with Court rules and to clarify a discrepancy in his name that arose from the presentation of his admission certificate. There was no requirement that original documents be shown. This distinction is discussed further below in relation to a number of the grounds raising unreasonableness.
There was therefore no error in the judge considering representations including any statements or other matters to be implied from Mr Giurina’s conduct. Ground 1 fails.
Consideration of Ground 13
There is a common law presumption that a mental element of knowledge or intent as to wrongdoing, mens rea, is an essential ingredient of every offence.[60]
[60]Sherras v De Rutzo [1895] 1 QB 918, 921; He Kaw Teh (n 50).
This presumption may be displaced in certain circumstances. The following are relevant factors when considering whether the presumption is displaced:[61]
[61]As drawn from Gibbs CJ in He Kaw Teh (n 50).
(a) The wording of the statute: if the wording of the provision does not expressly or implicitly require a fault element, it may point to parliament’s intention not to require a fault element.[62] This may be contrasted by the language of surrounding provisions dealing with other offences in the statute.
(b) The subject matter of the statute: When the penalty is severe, it is likely that parliament intended for there to be a fault element. Thus, if the offence carries the potential for imprisonment, it is less likely to be a strict liability offence. If the maximum penalty is relatively minor, and does not include imprisonment, the likelihood that it is a strict liability offence is increased.[63]
(c) The utility of imposing strict liability: If enforcement of the provision would be significantly undermined by requiring a fault element, the offence is more likely to be one of strict liability.[64] Such intent will likely only be found where an accused can take reasonable steps to ensure compliance, to avoid creating a class of ‘luckless victims’.[65]
[62]He Kaw Teh (n 50) 528-530; Mayer v Marchant (1973) 5 SASR 567, 585; Sweet v Parsley [1970] AC 132.
[63]He Kaw Teh (n 50) 528-530.
[64]Ibid.
[65]Sweet v Parsley [1970] AC 132.
What might constitute mens rea is itself somewhat ambiguous and imprecise. Recklessness may in some cases be a sufficient mental element, falling short of actual knowledge or intent. In He Kaw Teh, Gibbs CJ considered the principle that an honest and reasonable mistake of fact will be a ground of exculpation in cases in which actual knowledge is not required as an element of an offence. After reviewing the cases he concluded:
These cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent.[66]
[66]He Kaw Teh (n 50) 533.
The starting point therefore is a presumption that knowledge is a required element. Section 11 is silent both explicitly and implicitly about knowledge. There is, for example, no qualifying words accompanying the prohibition that might suggest a mental element.
The Uniform Law deals with many acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’.[67] The Uniform Law does regulate lawyers and it does in some circumstances provide penalty for imprisonment. Section 10 is one such example. The maximum penalty for a breach of s 10 (the prohibition on engaging in legal practice by unqualified entities) is 250 penalty units or two years’ imprisonment, or both. By comparison, s 11(1) – also a criminal offence – attracts a fine of 250 penalty units as the maximum penalty.
[67]Ibid 530 (Gibbs CJ) quoting Sherras v De Rutzen [1895] 1 QB 918, 922.
I accept the plaintiff’s submission that there may be factual overlap between ss 10 and 11 of the Uniform Law. Section 10, which prohibits engaging in legal practice, covers a range of activities that might also be caught by s 11(1). I will assume that the presumption would not be displaced in relation to s 10 given the risk of imprisonment. However, it doesn’t necessarily follow that both sections should be treated the same with respect to the mental element. The presence of a mental element to s 10 does not inform the presumption in relation to s 11. The circumstances of the conduct that is prohibited by both ss 10 and 11 may make the representation more egregious and warrant a charge where appropriate under s 10. The distinction in penalty in my view does point to displacement of the presumption in s 11(1) offences.
Section 3 of the Uniform law sets out the objects of the legislation. They include maintaining ethical and professional standards of lawyers, protecting lawyers’ clients and the public generally, and regulating the legal profession in a way that is efficient, effective, targeted and proportionate. I reject the plaintiff's submission that because a purpose of the threshold requirements to engage in legal practice is to protect the public,[68] it does not necessarily seek to punish lawyers. Despite the purposes of s 9, the two provisions that follow provide criminal sanctions for breach. The provisions permit the laying of charges against individuals admitted to practise but not qualified entities, such as Mr Giurina, as well as individuals without legal qualifications such as the appellant in Batten.
[68]By s 9(b) Uniform Law
Mr Giurina submitted that the case of Batten, which was a prosecution under the equivalent provisions under the Legal Profession Act 2004 (Vic), was conducted implicitly with acceptance that the offences had a mental element. This was because the regulatory body had written a cease and desist letter to Mr Batten prior to the charged conduct, suggesting it was policy to bring the unqualified status to the attention of the practitioner and therefore it was to be implied that the regulator interpreted the provision as having a mental element. In Batten, Parrish J did not address whether or not the Legal Profession Act 2004 (Vic) equivalent of s 11 of the Uniform Law was a strict liability offence. Whether such an inference could be drawn as to the existence of any such policy may be debatable.
A reading of the reasons in Batten is also consistent in approach with a strict liability offence subject to a defence of honest and reasonable belief. The purpose for which the cease and desist letter was admitted by the judge was not to show any tendency on the part of Mr Batten but ‘in relation to the issue that he had clear knowledge that such a course of action was inappropriate’.[69] Similarly in Green, a caution by the Court was given about continued conduct in light of Mr Green’s understanding that he was not admitted to practise in NSW. Mr Green’s knowledge was a matter of fact; the case sheds no light on whether s 11 is a strict liability office.
[69]Batten (n 43) [170].
The trial judge was correct to consider that s 11(1) was a strict liability offence. Mr Giurina’s intention in making the representations he did was irrelevant. The offence is not absolute, and will not be proven if the accused can demonstrate that he acted under an honest and reasonable belief that he was a qualified entity as at 24 January 2018, which if true would have made his words or conduct appropriate. The prosecution conceded an evidentiary basis for a defence of honest and reasonable mistake on the part of Mr Giurina but relied on evidence that negated that defence.
Mr Giurina’s argument – that the existence of a deeming provision permitting an applicant for renewal of a practising certificate to continue to engage in legal practice pending a decision refusing renewal would be unnecessary if s 11 were intended to be a strict liability offence – is correct as far as it goes. Absent a deeming provision all practitioners would know that on expiry of their practising certificate on 30 June they were not qualified. But that would not promote an efficient or effective regulation regime, ignoring the many reasons why an application for a practising certificate may not be determined by the expiry of a current one. Mr Giurina argues that her Honour was wrong to conclude that strict liability would require a person to make reasonable enquiries about their entitlement to practise while their application remained outstanding. The real point made, correctly, by her Honour was that a defence of honest and reasonable belief would face difficulties in the absence of reasonable inquiries. In Mr Giurina’s case, he had made no enquiries after his response made to the 12 July 2017 letter for a period of six months. Ground 13 is not made out.
It is convenient next to turn to the Ground 14, which is directed at error dealing with the defence of honest mistake or reasonable belief. This is one of a number of grounds of legal error arising from unreasonable findings.
Was it unreasonable for the judge to be satisfied beyond reasonable doubt of various matters? (Grounds 2,3,7,8,9, 10, 14)
The parties approached the grounds dealing with unreasonableness on the basis that a decision that is legally unreasonable would involve jurisdictional error. A decision may be legally unreasonable when it is illogical or irrational, lacks an evident and intelligible basis, or where there is no evidence to support it.[70]
[70]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 649-50.
Whilst such principles are orthodox with respect to administrative decision-makers, the question of whether such errors in fact-finding by inferior courts amount to a court exceeding jurisdiction is not so straightforward.
In Rees v County Court of Victoria & Anor,[71] Cavanough J canvassed the position regarding illogical or irrational fact-finding by a magistrate convicting a person of an offence under the Crimes Act1958 (Vic). Cavanough J addressed the line of authorities, stemming from Parisienne Basket Shoes Pty Ltd v Whyte,[72] to the effect that the legislature does not intend to make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist. His Honour concluded that the law on this question was not clear.
[71][2011] VSC 67, [15].
[72](1938) 59 CLR 369; and the subsequent authorities discussed by Cavanough J, including Director of Public Prosecutions v Judge Fricke [1993] 1 VR 369 and Coleman v Director of Public Prosecutions (2002) 5 VR 393.
In AB v Paulet,[73] a judicial review of a finding of guilt by the Magistrates’ Court, Croucher J said:
A question arises, however, as to whether, if established, a complaint that the judge’s finding of guilt or his or her reasoning towards it is unreasonable or irrational is capable of amounting to a jurisdictional error for the purposes of judicial review in a matter of this nature.[74]
[73][2022] VSC 414.
[74]Ibid [158].
In Ryan v The Grange at Wodonga Pty Ltd,[75] Neave JA said:
[it is not clear] whether, assuming that these grounds for review are available, the decision itself must demonstrate irrationality, illogicality or unreasonableness, or whether it is sufficient to show that it has been reached by reasoning which demonstrates such flaws.[76]
[75][2015] VSCA 17.
[76]Ibid [93].
As the parties assumed that unreasonable fact-finding on all relevant grounds was capable of amounting to a jurisdictional error if it is demonstrated, I have approached these grounds without deciding whether any unreasonableness, if found, may be so characterised.
Many, if not all of the unreasonableness grounds are approached, in the face of conflicting evidence, as an error accepting some evidence over other conflicting evidence. Even in the context of an administrative decision-maker, fact-finding for the purpose of determining whether the facts fit within the relevant statutory provision is a question of fact not law, unless the fact-finding is not open to the decision maker on direct evidence or from inference drawn.[77] In AB v Paulet, Croucher J said:
Whether there is any evidence to support a factual finding is a question of law, not of fact. Accordingly, a finding made in the absence of evidence involves an error of law. If such an appear appears on the face of the “record”, it will be amenable to judicial review. An error of this kind may also amount to a jurisdictional error where the finding is a “critical step” in the decision-maker’s path of reasoning.[78]
[77]S v Crimes Compensation Tribunal [1998] 1 VR 83.
[78]AB v Paulet (n 73) [152] (citations omitted).
The grounds of unreasonableness attach to particular factual findings rather than the ultimate conclusion of guilt. To establish the unreasonableness grounds, assuming them to be available to the plaintiff, he must demonstrate that there was no evidence to support Judge Brimer’s findings so they may appropriately be characterised as errors of law. If any of those findings were a critical step in arriving at the final conclusion that the plaintiff represented an entitlement to engage in legal practice, then the legal error may also amount to a jurisdictional error.
In each of the unreasonableness grounds discussed below, there was some evidence in support of those grounds. Therefore the real attack is one as to the weight accorded to the evidence by challenging its sufficiency in concluding that the charge was proved beyond reasonable doubt.
(i) Ground 14
Ground 14 contends it was unreasonable for the judge to be satisfied beyond reasonable doubt that the defence of honest and reasonable mistake has been negatived.
The defence centred on the evidence surrounding the outcome of Mr Giurina’s application for a further volunteer practising certificate and his possession of the evidentiary certificate.
The plaintiff re-applied for a volunteer practising certificate in May 2017. After 30 June 2017, until such time as the application for renewal was decided, the plaintiff would hold a ‘deemed’ practising certificate.[79] Mr Giurina responded to the 12 July letter on 28 July 2017. It was put to the plaintiff that he had received the decision not to renew and he denied receipt saying the letter had been overlooked because it had gone into his spam folder and he remained unaware of it as at 24 January 2018. Mr Giurina said he believed he was continuing to operate under a deemed practising certificate as his application from May 2017 remained pending.[80] He said he only learned of the letter of 16 October 2017 some months after January 2018. [81] The receipt in the spam folder was first provided as an explanation in a letter to VLSB dated 30 November 2018 shortly before the interview.
[79]By operation of s 17(2) of the Uniform Law.
[80]T 64.25-65.4.
[81]County Court Transcript 120.9-11.
The evidentiary certificate in his possession was dated 14 November 2017 and confirmed that the plaintiff held a volunteer practising certificate that was due to expire on 30 June 2018. Laura Gaffey, an investigator for the VLSB, gave evidence that the expiry date contained a clerical error and should have read that it was due to expire on 30 June 2017. Ms Gaffney said she could find no evidence of any enquiry by Mr Giurina concerning his renewal application between 28 July 2017 and 12 September 2018.[82]
[82]County Court Transcript 81.
Mr Giurina agreed that he did not apply to the VLSB for an evidentiary certificate.
The plaintiff submitted that the defence of honest and reasonable mistake was not negatived because the prosecution failed to prove beyond reasonable doubt that the plaintiff was aware of the decision not to renew his practising certificate.[83] He submits that there is a distinction between the letter being sent and its recipient being made aware of its contents. Unless the latter is satisfied, the plaintiff submits that the defence cannot have been negatived.
[83]T 62.14-22.
The plaintiff submitted that effective service of the decision not to renew required the notice to be delivered personally or sent by post to the address for service appearing on the Australian Legal Profession Register as provided by s 442(1) of the Uniform Law and therefore the prosecution could not prove that it had come to his notice. In his submission, given that the letter was automatically moved to the his spam account (which he said did not see), and given that the VSLB failed to comply with service requirements under the Uniform Law by not sending it via post, the first defendant had not proven beyond reasonable doubt that the decision not to renew had come to his notice.
The first defendant submits that the defence of honest and reasonable mistake requires a positive belief.[84] The first defendant submits that the defence was not made out as the plaintiff’s evidence was that he was simply unaware of the outcome of his practising certificate renewal application.
[84]Citing Proudman v Dayman (1941) 67 CLR 536, 539-540.
Judge Brimer’s conclusion commences with the concession that the clerical error as to expiry date in the evidentiary certificate, coupled with Mr Giurina’s evidence that he had not seen the decision not to renew his practising certificate, gives an evidentiary foundation for a defence of honest and reasonable mistake. However her Honour concludes that Mr Giurina’s belief that he was still entitled to engage in legal practice on 24 January 2018 was neither reasonable nor honest. Her Honour’s reasons for doing so rested on seven matters:[85]
[85]County Court Ruling Transcript 15.8-18.37.
(a) Mr Giurina received and responded to emails that the Board sent to the same email address on 12 July 2017 and 14 August 2017;
(b) the 12 July letter put Mr Giurina on notice of the preliminary view that the renewal be refused;
(c) the explanation of the spam folder was first raised in a letter to the Board on 30 November 2018 and in the interview shortly after that time Mr Giurina said even after he checked the spam folder and found the email he made no attempt to contact the VLSB;[86]
[86]’Transcript of record of interview dated 21 December 2018’, Exhibit O filed in Ermanno Giurina v Fiona McLeay (County Court of Victoria, AP-20-1473), questions 134-139.
(d) at the interview on 21 December 2018, Mr Giurina could not identify any other piece of correspondence that had inadvertently gone into his spam folder;
(e) in a letter to the VLSB dated 15 October 2018, the only reference to the decision not to renew made no reference to it being lost in the spam folder, but did say that:
I would have been well within my rights to appeal the decision….However due to me being busy with other matters I did not pursue an appeal;’
(f) given Mr Giurina’s concern to be contacted prior to sending any email, he would have been likely to complain about the receipt of the decision not to renew without prior notification when it came to his attention; and
(g) the evidence of a correcting a misspelling of Mr Giurina’s email in August 2017 did not assist the plaintiff’s case as it would be more likely that care would be taken, and in any event misspelling is not what is said to have happened on this occasion.
Even if the judge were to accept the plaintiff’s evidence that the decision not to renew did not come to his attention, she did not consider his belief to be either honest or reasonably held in light of his answers in the interview. He said ‘I couldn’t say to anyone I am entitled to practice or whatever because in my mind I had applied but had received no response.’[87] Her Honour concluded that this and another answer demonstrated that Mr Giurina had turned his mind to a lack of response but took no steps to make enquiries. The judge concluded that the lack of follow up between July 2017 and January 2018 and beyond indicated that any mistake as to the status of his practising certificate was neither honestly held nor reasonably held.
[87]Ibid, question 150.
There is no merit in the associated argument that the decision had to be sent by post. Section 442 of the Uniform Law provides for service of notices and documents. It provides that service may be effected personally or by post to the address for service appearing on the Australian Legal Profession Register. Ms Gaffey gave evidence of her belief that correspondence sent to practitioners by the Board was largely electronic.[88] There was insufficient evidence to satisfy the judge that prior to 17 October 2017 there had been some agreement to either call prior to emailing a letter, or to send correspondence by post. Mr Giurins submitted that the decision not to renew does not comply with s 81 of the Uniform Law, which makes written notice mandatory.[89] On the assumption that s 81 is relevant it does not specify anything other than ‘written’ notice. It was not said that an emailed letter was not written notice. Nor is s 77, also relied on by Mr Giurina, applicable to the decision not to renew. It applies to immediate variation or suspension of an existing certificate before or during action proposed by the regulatory authority. In any event, issues of compliance with service requirements to one side, the real issue is not whether it was validly served but whether it had come to Mr Giurina’s notice.
[88]County Court Transcript T104.31
[89]Further Submissions of the Plaintiff 24 March 2023
Clearly that conclusion could not be illogical on the ground advanced by the plaintiff that it lacked any evidentiary foundation. The evidence upon which the judge reached this conclusion was set out. Neither could it be said that it lacked a logical basis. Although not specifically referred to when addressing this question, her Honour did elsewhere in her reasons address the possession of the evidentiary certificate. By its date the evidentiary certificate was created after the VLSB’s decision not to renew and came into Mr Giurina’s possession through a third party at a time when he said he believed a decision remained pending. The absence of any query as to the status of his application for renewal, which on the face of the evidentiary certificate with its erroneous date had been approved, would also support an inference that Mr Giurina was aware of the adverse outcome of his renewal application.
Contrary to Mr Giurina’s submissions, it was not necessary for the VLSB to negate the possibility that there were past difficulties in sending correspondence so that there was an expectation by Mr Giurina that he would receive notification or consent to receive important correspondence by email. It had to negate a belief that he was entitled to continue to engage in legal practice because he honestly believed he was still protected by the deeming provision, or that he honestly mistook the expiry date on the evidentiary certificate. Mr Giurina was very clear that the evidentiary certificate was something requested by a third party. It was neither sought by him nor provided to him by the VLSB. Having the document in his possession, without enquiry as to why he had not received a practising certificate for the period July 2017 to June 2018 and using it in the context of seeking to file documents on behalf of his mother was capable of negating the defence. It was clearly open to the judge, on the basis of the material above, to conclude that the belief was not honest and reasonable. His possession and use of the evidentiary certificate confirms why ground 14 could not be made out.
(ii) Grounds 2 and 3
In each of grounds 2 and 3 the allegation is that it was unreasonable for the judge to be satisfied to the requisite standard that by producing a copy of the admission certificate and a copy of the evidentiary certificate, the plaintiff represented an entitlement to engage in legal practice. These grounds fall away because the plaintiff admits presenting each document but argued the finding was not open for two reasons. In each case he contends that because the documents were copies and not originals their presentation cannot amount to a representation. I have dealt with and rejected this argument above. Even when being produced for the purpose of proving the truth of contents of documents, the Evidence Act 2008 (Vic) now permits the use of copies.[90] The second reason is that the documents were presented not to represent an entitlement to engage in legal practice but to convey something different: an explanation for the difference in his first name and to persuade that he was someone who had familiarity with the Rules.
[90]Evidence Act 2008 (Vic) s 48.
The first defendant submits the plaintiff’s intention in producing various documents to Ms Russo as part of Grounds 2 and 3 are irrelevant as he has not been successful in establishing Ground 13.[91]
[91]First Defendant’s Submissions dated 17 February 2023, [30].
Mr Giurina submits that in cross-examination Ms Russo agreed that Mr Giurina’s purpose was to indicate that he ’had legal qualifications’ and knew about the rules.[92] The question and answer immediately prior to the one Mr Giurina relies on was:
Q.I put it to you that I did not show you that document or that copy of the admission certificate to demonstrate to demonstrate any entitlement to engage in legal practice.
A. I disagree
[92]This concession was at County Court Transcript 42.18-21.
Mr Giurina describes these as contradictory answers. They are not. Even accepting Mr Giurina’s subjective purpose as a reason for his action, it is not inconsistent with it also amounting to a representation that having been admitted in the past, he was entitled at that time to file a proceeding on behalf of someone else. His evidence was that he produced the document to demonstrate his ‘legal qualifications’ – a phrase that could reasonably imply in context that the plaintiff was a practising solicitor.[93] Even if there was an arguable inconsistency, it was for the judge to determine her state of satisfaction of matters on the whole of the evidence.
[93]First Defendant’s Submissions dated 17 February 2023, [33].
The same argument – that the purpose of showing the evidentiary certificate was to demonstrate the difference in names – was made in ground 3. Ms Russo’s evidence confirmed different names on the admission certificate and the documents sought to be filed. Mr Giurina created any confusion as to names by producing his admission certificate. Subject to compliance with the rules, there was never any issue with him filing proper documents representing himself under either name.
The issue confronting the plaintiff was whether he could do so for his mother. The judge found Mr Giurina’s account of what occurred on 24 January 2018 as ‘inherently unlikely’. In the face of this conclusion the absence of any reasonable doubt is clear.
Similarly Mr Giurina made the submission that it was wrong for the judge to conclude that the only inference open was that Mr Giurina represented an entitlement to legal practice. Essentially he contends that the other inference was that his purpose was in accordance with his own evidence for each of the admission certificate and the evidentiary certificate. Such a contention that competing inferences were available, even if correct, amounts to an attack on the approach of the judge to the presence of competing inferences. It does not demonstrate that the inference that the judge actually drew was unreasonable.
What did fall for consideration by the whole of the evidence of the engagement between Ms Russo and Mr Giurina was whether the judge’s conclusion lacked any evident justification. As the judge said, the purpose of attending was to persuade the Court to accept the documents he wished to file and he was strongly motivated to convince Ms Russo to accept the documents for filing. The difficulty had been and remained that they were unsigned by his mother. In the absence of a signature and affidavit he was informed that the Rules precluded the documents being filed by the plaintiff in person.
The judge concluded, having heard the contested evidence of both Ms Russo and the plaintiff, that in two particular ways, the plaintiff’s evidence was inherently unlikely – first that having been told on 23 January 2017 that he could not file an originating process unless signed by both plaintiffs, he turned up the next day with the same document and second, his account of the events on 24 January 2017. Her Honour said that the first matter did not ring true that he would return no further advanced the next day and not be in a position to address Ms Russo’s concerns. Second, she concluded that the explanations provided for events were matters of recent invention. Whilst the recent invention finding is the subject of a separate ground, it also informs the reasoning used to provide a basis for the findings in Grounds 2 and 3.
Grounds 2 and 3 are not made out.
(iii) Grounds 6 and 7
Ground 7 describes the conclusion that the explanation for the production of the evidentiary certificate as recent invention as one that was legally unreasonable. It was unreasonable because an adverse inference was drawn from a lack of earlier explanation of the purpose for production of the evidentiary certificate. He submits there was no inconsistency between the interview and his County Court evidence.
Mr Giurina’s arguments regarding his County Court evidence as to the evidentiary certificate have two elements. One is his belief about a distinction between original and copy documents. The other is the distinction he draws between the production and the purpose of production. Both elements are used to explain the truthfulness of answers given or provide reasons for an absence of an earlier explanation. In summary this ground of unreasonableness challenges the judge’s failure to accept his explanation.
The judge found a lack of candour in the explanation Mr Giurina gave her. Her Honour addressed the failure in the interview to admit production of a copy evidentiary certificate and noted the lack of recollection of having produced such a document. Before the County Court, when it was put that the Supreme Court had provided a copy of the evidentiary certificate to the VLSB, and that it must have come into the Court’s hands from him, he raised confusion in his mind between a composite document (the DPP hand up brief containing the evidentiary certificate) and the document he showed to the registry. Her Honour had to form a view of his credibility in order to resolve the factual conflicts in the evidence. The view her Honour formed was adverse to his credit, based upon a comparison of the answers that he gave during interview and the answers and explanations that he gave before her Honour. Her Honour’s finding was based upon the view she took as to the candour of the plaintiff in his responses. It was open to her Honour to reject the plaintiff’s explanation for inconsistencies between his answers.
Ground 6 is related to Ground 7. It alleges a lack of procedural fairness by permitting cross-examination as to fabrication and recent invention. This ground raises an argument that was dealt with and ruled on by the judge. Once the proposition of fabrication was put and denied, the plaintiff raised as a legal issue whether the lack of explanation in the record of interview could be used adversely. He relied on Petty & Anor v the Queen (‘Petty’).[94] He said silence in the record of interview should not be now used to suggest recent invention. The prosecution submitted that Mr Giurina did not exercise a right to silence. Rather, he answered questions voluntarily. Those answers, their completeness or otherwise, are not subject to the protection in Petty. Her Honour allowed this line of questioning.
[94](1991) 173 CLR 95.
Mr Giurina’s written submissions describe the legal error as the decision that Petty was not applicable. Characterised this way the issue would clearly be an error within jurisdiction and while subject to an appeal, would not give rise to a lack of procedural fairness as Ground 6 is characterised. Mr Giurina submits the ruling led to him being unfairly cross-examined. Petty is concerned with preventing an inference of consciousness of guilt from an accused exercising a right to silence. Mr Giurina attempted to rely on it to argue that an absence of explanation in answers given should not be subject to testing by cross-examination. There is no merit in an argument that Mr Giurina was unfairly cross-examined or that he was prevented from presenting the issues and evidence he wished to present.
(iv) Ground 8
Somewhat differently in Ground 8, Mr Giurina challenges the judge’s finding that a certificate of solicitor was produced. Mr Giurina’s evidence is that he did not produce the certificate, and he denied there was any reason to produce such a document. He argues that the evidence below indicates that there was reasonable doubt as to whether a solicitor’s certificate was produced[95] and ‘therefore it was unreasonable to conclude I had done so beyond reasonable doubt’. The plaintiff advanced Ground 8 as the strongest ground of review.[96] The first defendant submits the plaintiff’s intention in producing various documents to Ms Russo as part of Ground 8 is irrelevant as he has not been successful in establishing Ground 13.[97]
[95]Plaintiff’s Submissions dated 20 January 2023, [91].
[96]T 50.14-17.
[97]First Defendant’s Submissions dated 17 February 2023, [30].
In reality this ground is advanced not on a true basis of illogicality or unreasonableness but upon appellate notions of insufficient evidence for a conviction. There was a conflict in the evidence of the two direct witnesses. Ultimately it was not in issue that a copy of his admission certificate and the evidentiary certificate were shown to Ms Russo. It was squarely in contest whether a solicitor’s certificate was also produced, as well as what words were said.
Mr Giurina submits that the evidence indicated there was a reasonable doubt as to whether the plaintiff had actually produced a Certificate of Solicitor to Ms Russo on 24 January 2018. There were other procedural steps that a person filing as a litigation guardian would be expected to comply with that the plaintiff had not,[98] so that it is unlikely the certificate was produced.[99] Ms Russo’s contemporaneous notes do not record that a certificate of solicitor was produced.[100] The plaintiff submits this should have raised a reasonable doubt.
[98]For example, filing written consent with the office of the Prothonotary to be a litigation guardian under rule 15.03(6)(a), and a certification under rule 15.03(6)(b)(ii).
[99]T 50.26-T51.5.
[100]Plaintiff’s Submissions dated 20 January 2023, [108]; ‘Statement of Natasha Russo dated 17 July 2019’, Exhibit B filed in Ermanno Giurina v Fiona McLeay (County Court of Victoria, AP-20-1473); T 52.18-21.
The document that Mr Giurina eventually filed was in evidence. It was a summons dated 8 February 2018, clearly on its face not a document presented on 24 January. That document was not conclusive although Mr Giurina pressed a submission that it was consistent with his evidence of what transpired. The conflict in the evidence may have created doubt in the mind of the decision-maker. That doubt may even have been reasonable to a particular decision-maker depending on the credibility and reliability assessments of that decision maker. Her Honour made findings about the conflicting description of the documents produced on 23 and 24 January 2017. Ultimately her Honour reached the requisite standard of satisfaction on that question and explained her reason for doing so.
The conclusion was based upon acceptance of the evidence of each of Ms Russo, Ms Price and Ms Gaffey. The absence of this detail in the contents of Ms Russo’s contemporaneous note was not a reason to reject her viva voce evidence that a certificate of solicitor was produced. The judge recorded that in other respects Mr Russo’s recollection was borne out by other evidence. She rejected Mr Giurina’s explanation of what had occurred on 24 January as ‘inherently unlikely’. The reasons set out a basis upon which it could logically be concluded that the solicitor’s certificate was produced, and be so satisfied beyond reasonable doubt. This is not an appeal against conviction. In my opinion the unreasonableness alleged in Ground 8 is not made out.
(v) Ground 9
Ground 9 contends that it was unreasonable to be satisfied beyond reasonable doubt that the plaintiff made statements to Registry staff to the effect that he was a practising solicitor. Again, the submissions argue that because Mr Giurina had denied making the statements it was in effect unreasonable for the evidence of Ms Russo – that he had made those statements to her – to be accepted. Ms Russo’s contemporaneous note did not record any statements that had been made. The evidence turned on words to the effect that he had been working at a community legal centre for the past few months. Again in language applicable to criminal appeals, the plaintiff submits that a conviction on uncorroborated evidence was ‘unsafe’ as well as unreasonable. The submission that the Court could not be satisfied to the requisite standard without contemporaneous documentation or corroboration was not supported by any legal principle. The Ground fails.
Adverse Credibility findings (Grounds 4 and 5)
The plaintiff alleges legal error being a failure to properly analyse the answers in the interview. In both grounds the failure was said to result in adverse credibility findings. The grounds addressed the answers to Q 91 (Ground 4) and Q 97 (Ground 5).
Question 91 and the corresponding answer is:
Q91: On the 24th January 2018, we say that you produced an evidentiary certificate from the Legal Service Board dated 14 November 2017, stating that you [had] a volunteer practicing certificate which expired in about June 2018. What do you say to that?
A: I never had an evidentiary certificate issued to me, as I’ve said in the letter, and I’ve never applied for one. Whatever date – I think in your letter you’ve said the 14th November 2018 and 2017 you’re quoting. I didn’t have an original evidentiary certificate, it was never granted or applied. I never applied for one and I never had an original, nor did I have a certified copy. There have been, as I’ve said in my letter of 30th November, there have been evidentiary certificates floating around form other people who have been engaged in litigation, dealing with the owners corporation 1579, which I’ve been involved in. But I didn’t produce any evidentiary certificate that had been given to me saying here’s an evidentiary certificate, I’m entitled to practice, absolutely not.[101]
[101]Transcript of record of interview dated 21 December 2018, Exhibit O, question and answer 91.
Question 97 and the corresponding answer is:
Q97: So are you familiar with this document [being the evidentiary certificate]?
A: Well it may have been something that I may have had and still do have, but as I said if I do have this, I can’t use this myself. I can’t use this for any other purpose. This is something a third party has given me.[102]
[102]Transcript of record of interview dated 21 December 2018, Exhibit O, question and answer 97.
It is perfectly clear on the face of Mr Giurina’s answer to Q 91 that he denied producing an original evidentiary certificate. He did not qualify this denial by an acceptance that he produced a copy of such a document. To the extent that the answer to Q 91 required any analysis, it was whether the answer amounted to a denial of the question. Mr Giurina’s submissions on ground 4 extend to a failure to analyse a letter of 30 November 2018,[103] in which he explained that:
Any supposed certificate in my possession at the time would only have been a copy… and was not used by me in any manner by me as evidence of my entitlement to practise ( nor could it be as I never had an original) and which in any event was not an issue being discussed with registry staff.
[103]‘Letter from Ermanno Giurina to VLSB dated 30 November 2018’, Exhibit M filed in Ermanno Giurina v Fiona McLeay (County Court of Victoria, AP-20-1473).
As the judge observed, these answers carefully avoided the question of whether a copy was actually produced and were confined to a denial of the use made of such a document if in fact it had been produced.
Before the judge, when it was put to him that the Court had provided the document to the VLSB, Mr Giurina replied: ‘That I provided that?...I can’t recollect that I provided that. Well, as I said I can’t recollect having provided them with that….Not the email. Well I must, you know, in all honesty I can’t recollect that I provided this certificate’.[104]
[104]Transcript of record of interview dated 21 December 2018, Exhibit O, answers 105, 106, 107 and 108.
Before the judge he also gave evidence that he did produce a copy of the evidentiary certificate:
To indicate to [Ms Russo] that I was one and the same person I had a pile of folder with me, hard copy folders in the interview room and I just went through those folders to find something which could possibly indicate that Herman and Ermanno were one and the same people. So the first thing that I did come across was what [Ms Russo] produced as [the evidentiary certificate].[105]
[105]County Court Transcript 116.20-26.
Mr Giurina relies on his affidavit of 13 January 2022 and new evidence admitted before me. He explains that he understood Q 91 to ask whether he had produced an original evidentiary certificate and believed his denial truthful because he had never possessed an original of that document.[106] He substantially repeats his evidence ‘coming across’ the document which served the purpose of showing his name.[107]
[106]Affidavit sworn 13 January 2022 at [14].
[107]Ibid at [9].
In my view the new evidence substantially repeats the plaintiff’s position before the County Court that the distinction between original and copy documents explains and renders truthful his explanation. It does not change the position that it was open to the judge to reject the candour of the explanation. It was not unreasonable for her Honour to have done so. The distinction between copy and original, fundamental to Mr Giurina’s argument, was not a distinction made in questions during the interview.
The ‘analysis’ was the rejection of Mr Giurina’s explanation. Her Honour concluded:
I found Mr Giurina’s explanation for his careful answers in his record of interview unsatisfactory. His answers in cross-examination were, I consider, evasive and lacking in credibility.[108]
[108]County Court Ruling Transcript 12.9-11.
Her Honour supported this conclusion by reference to inconsistencies between answers in the interview where the plaintiff said he could not recall providing the evidentiary certificate which did not ‘stack up’[109] with the explanation given to the court as to the purpose of showing the document. The conclusion was open to her and the reasons for it explained.
[109]County Court Ruling Transcript 13.11-12.
Mr Giurina characterised this failure of analysis was characterised as an error of law in reliance on Kasumovic v Blanco (‘Kasumovic’).[110] Kasumovic was a rehearing, not confined to errors of law. Within that context the appeal focused primarily on the Magistrate’s reasons, which the Court found had failed to record substantial parts of the voluminous medical evidence, and made inadequate findings of fact as to the nature of injuries sustained and the causal relationship of presently persisting injuries to the subject accident. Accordingly, Kasumovic is authority for the principle that failure to provide proper reasons is an appealable error, whether or not it is also a question of law.[111] Mr Giurina submits that Judge Brimer failed to properly analyse a particular piece of evidence, and seeks to use Kasumovic to submit that this constitutes an error of law. However, Kasumovic provides no support to this argument, as Kausomic was about the Magistrate’s failure to make factual findings that informed and explained his conclusions (such that the reasons were inadequate), and not a failure to properly analyse evidence.
[110][2007] SASC 267, [57]-[58].
[111]Ibid [16]- [18].
Similarly in Ground 5 Mr Giurina criticises the quality of the analysis of the judge in Q97 and in the subsequent Qs 98 to 102 and 105 to 111 dealing with the evidentiary certificate. The lack of proper analysis was no more than a failure to accept the plaintiff’s evidence that he was genuinely confused as to what document he was being asked about. He submits the ‘ruling’ and therefore the conviction is tainted by unfairness and must therefore be set aside because the judge did not ensure ‘the propriety and fairness of a trial’.[112]
[112]Relying on Saffron v R (1988) 17 NSWLR 395, 457.
The submission misstates the effect of Saffron v R,[113] which the plaintiff quotes to support this submission. In that case, questions of law were reserved during a criminal trial for the NSW Court of Appeal heard together with an appeal against conviction and sentence. The phrase was referenced in the context of a discretion of a trial judge to exclude admissible evidence whose probative value was outweighed by its highly prejudicial nature. It has no relevance to this ground of review, which is not dealing with admissibility.
[113]Ibid.
Grounds 10 & 11 – A qualified entity?
By these grounds, Mr Giurina challenges the judge’s failure to consider whether the plaintiff was a qualified entity as at 24 January 2018 because he came within the definition in s 6(d). This failure meant that the judge, by failing to consider the argument, erred in law (Ground 11) or unreasonably concluded that he was not a qualified entity.
It was common ground that the plaintiff did not meet s 6(a) as he did not have a current practising certificate. Mr Giurina submits on the assumption that attempting to file the documents amounted to ‘engaging in legal practice,’ then under Order 57 of the Rules he had authority to do so. This authority derived from Order 57 itself which provides for the issue of a writ of habeus corpus. An application for a writ to issue is made to a judge. Order 57 relevantly provides:
(3)The person making the application, whether or not that person is the person restrained, shall be plaintiff and the person against whom the issue of the writ is sought shall be the defendant in the proceeding.
…
(6) The application shall be supported by an affidavit by the person restrained showing that it is made at that person’s instance and stating the nature of the restraint.
(7) Where the person restrained is unable for any reason to make the affidavit referred to in paragraph (6) –
(a) the affidavit may be made by another person; and
(b)that affidavit shall show that the person restrained is unable to make the affidavit.
Mr Giurina contends that he was authorised by Order 57 as a person who may make the application for habeus corpus and therefore he was a qualified entity because Order 57 permitted him to engage in legal practice by filing a proceeding in accordance with Order 57 under the authority of that rule of civil procedure in Victoria. He was therefore qualified under a law other than the Uniform Law.
The argument is misconceived and without merit. Order 57 does not say anything about authorising a person to engage in legal practice. It permits a person who is not the subject of restraint to be a plaintiff in application for a writ of habeus corpus. In those circumstances certain affidavit requirements must be met. The unrestrained applicant who is the plaintiff seeking the writ on behalf of another person may be self-represented or may choose to be legally represented, but nothing in Order 57 changes the status of an applicant who is not a qualified entity or authorises them to engage in legal practice. Mr Giurina was entitled to be a self-represented plaintiff bringing an application against the hospital restraining another person. Order 57 did not permit him to also act on behalf of the restrained person or file documents naming them as a party unless he was a qualified entity.
I accept the first defendant’s submission that s 6(d) refers to individuals engaged in legal practice and that commencing a proceeding pursuant to Order 57 does not necessarily constitute engaging in legal practice. Mr Giurina’s assumption that it does so cannot be the foundation for his argument that he was so qualified.
Further, s 6(d) applies to persons qualified under Commonwealth law or in a jurisdiction other than Victoria. Schedule 1 of the Legal Profession Uniform Law Application Act2014 (Vic) commenced as a law of Victoria when that Act was proclaimed.
It is correct to say that Judge Brimer’s ruling did not deal with the submission on this point and that the failure to give consideration to submissions advanced by a party may amount to an error of law. In XYZ v State Trustees Ltd,[114] Cavanough J described such an error as ‘a failure to address in its reasons a submission that was worthy of consideration’.[115] I would doubt the submission should be characterised as one worthy of consideration. The submission, if considered, had no real prospect of success and so could not have affected the ultimate decision. Even if the submission was overlooked in the reasons of the judge, given my view that the submission ought to have been rejected, I would exercise my discretion not to grant relief upon this ground.
[114](2006) VSC 444.
[115]Ibid [42].
Ground 12 – Wrongful admission of evidence
The judge admitted into evidence a letter of 15 October 2018 written by the plaintiff.[116] Mr Giurina contends its admission contravened s 102 of the Evidence Act because it was not relevant to a fact in issue in the proceeding and was tendered on the basis that it was only relevant to the credibility of Mr Giurina. The letter responded to a VLSB letter expressing a preliminary view of 2 October 2018[117] that Mr Giurina was not a fit and proper person based upon matters that had no relevance to his conduct on 24 January 2018. The unrelated conduct the subject of that letter occurred on 1 March 2017, 26 May 2017 and 25 January 2018.
[116]Exhibit J
[117]That letter was tendered as Exhibit H
At the time of tender, Mr Giurina objected to the tender of both letters on the ground of relevance. The prosecutor sought to tender the response, at least provisionally on the basis that it was relevant only to the credibility of the evidence that he anticipated Mr Giurina would give. Specifically it went to the credibility of the explanations as to not receiving the decision not to renew.
Mr Giurina submitted that by admitting the evidence, her Honour ‘breached the credibility rule in s 102 of the Evidence Act 2008 (Vic). Section 102 provides:
Credibility evidence about a witness is not admissible.
The letter was admitted over Mr Giurina’s objection as to relevance for what her Honour described as the limited purpose that it was ‘relevant to the credibility of the evidence that you anticipate that Mr Giurina will give, that he has foreshadowed that he will give… and that is that he did not receive the letter of 16 October.’
Evidence that is inadmissible when relevant only to the credibility of a witness is subject to exceptions set out in ss 103 and 104. The rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the credibility of the witness.[118] In a criminal proceeding cross-examination of an accused is also protected by s 104 which requires leave of the court in certain circumstances. Leave is not required if cross-examination is on matters of recall matters to which his evidence relates[119] or if the accused has made a prior inconsistent statement.[120]
[118]Evidence Act s 103(1)
[119]Evidence Act s 104(3)(b)
[120]Evidence Act s 104(3)(b)
The prosecutor submitted the letter was relevant to the credibility of the plaintiff and in particular the credibility of his explanation that he had no knowledge of the 16 October 2017 decision because it had gone into his spam folder. The document was admitted for that limited purpose.[121]
[121]County Court Transcript 87.29.
The 2 October 2018 letter made reference to the decision not to renew Mr Giurina’s practising certificate. The 15 October 2018 response relevantly said:
31.I note that I would be well within my rights to have appealed the decision of Mr McGarvie of 16 October 2017 as no adverse imputations should be cast on my actions which were done with good intentions and my intentions to do some volunteer work…….However, due to me being busy with other matters I did not pursue an appeal but the fact that I did not do so should not be taken as any admission of any wrongdoing on my part.
The cross-examination based on his letter of 15 October 2018 put the following propositions to Mr Giurina:
(a) The only reference regarding the decision not to renew was in his response was in paragraph 31.
(b) Paragraph 31 did not make reference to the explanation of the spam folder.
(c) There was no mention of lack of consent to receipt of correspondence by email and Mr Giurina gave his email address as contact.
(d) There was no document showing a request for telephone confirmation before any email was sent.
The plaintiff accepted the first two propositions were correct, but said that the lack of reference did not make his present evidence a fabrication. He also agreed with the third and fourth propositions but gave additional evidence of his recollection of conversations and phone calls.
The cross-examination did not seek to use other information contained in the 15 October 2018 letter in any other way and used the document only confined to his evidence about non receipt of the 16 October 2017 decision, consistent with the limited basis upon which it was tendered.
As Mr Giurina was before her Honour as an unrepresented litigant, it is perhaps unfortunate that her Honour did not specifically state the basis for her admission of the 15 October 2018 letter for a limited purpose. The transcript reveals that none of ss 102, 103 or 104 were specifically mentioned by either party or the judge. Nevertheless, having read the transcript, it is obvious that the judge was being asked to admit evidence under an exception to the rule in s 102. It is equally obvious that she did so. I reject Mr Giurina’s submission that s 103 is raised newly raised for consideration. I accept that it is not for this Court to make any finding on the merits of the decision to admit and I am not making any finding about the admissibility of the letter. I do not accept the submission (at [80] of Mr Giurina’s Submissions in Reply) that the prosecution would have had to be satisfied that the 15 October 2018 letter fell within s 103(2). This fails to grapple with matters permitted in ss 103(1) and 104(3).
In my view there was no legal error going to jurisdiction in her Honour’s admission of the letter of 15 October 2018 for the limited purpose she identified. Mr Giurina submits that in her Honour’s she ‘unfairly speculated’ that he ‘should have raised the issue’ of the letter going to the spam folder in that letter. In fact her Honour said
In my view, had Mr Giurina not received the letter of 16 October 2017, when he found it in his spam folder he would have raised this with the Board well before 30 November 2018, and likely in his letter to the Board on 15 October 2018.[122]
[122]County Court Ruling Transcript T16.
This was part of her Honour’s reasoning as to a number of opportunities not taken by Mr Giurina to advise the VLSB that the decision had not been received when it was sent and to complain to them about this. This when considered as a whole supported her Honour’s rejection of his explanation, and therefore her conclusion as to whether he held a honest and reasonable belief that he was entitled to represent that he was a qualified entity.
Conclusion
Each of the grounds of review, save for Ground 11, must fail. For the reasons expressed above, I will not grant relief with respect to Ground 11. Accordingly, I will order that the proceeding be dismissed. In the absence of proposed consent orders I will hear from the parties on costs.
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