Legal Services Commissioner v Nguyen
[2013] VSC 443
•23 August 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
S CI 2013 03194
| LEGAL SERVICES COMMISSIONER | Plaintiff |
| V | |
| ANDREW MINH NGUYEN | Defendant |
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JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 July 2013 | |
DATE OF JUDGMENT: | 23 August 2013 | |
CASE MAY BE CITED AS: | Legal Services Commissioner v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 443 | |
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LEGAL PRACTITIONERS – order for removal of local lawyer from roll of practitioners – recommendation by Victorian Civil and Administrative Tribunal – application by Legal Services Commissioner – defendant conducted legal practice in breach of or without relevant practising certificate – defendant gave false statements in relation to certain misconduct to the Victorian Civil and Administrative Tribunal – whether defendant a fit and proper person to practise law – Legal Profession Act 2004 (Vic) s 4.4.17(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | S R Senathirajah | Brylee Newman, Solicitor to the Legal Services Commissioner |
| For the Defendant | No appearance |
HIS HONOUR:
Introduction and summary
Andrew Minh Nguyen was admitted to practice as a barrister and solicitor of the Supreme Court of Victoria on 29 March 2004. Mr Nguyen having pleaded guilty to 14 charges brought against him under s 4.4.4 of the Legal Profession Act 2004 (‘the Act’), on 25 March 2013 the Victorian Civil and Administrative Tribunal (‘VCAT’) recommended, pursuant to s 4.4.17(a) of the Act, that Mr Nguyen’s name be removed from the Roll kept by the Court of persons admitted to the legal profession.
The Legal Services Commissioner applied to the court for an order, in the exercise of the court’s inherent power to discipline the lawyers under its supervision, removing Mr Nguyen’s name from the Roll.
The principles governing such an application were set out succinctly by Warren CJ in Legal Services Board v McGrath.[1]They may be summarised as follows:
· Such a decision will only be made when the Court is satisfied at the time of the hearing that the practitioner in question is shown ‘not to be a fit and proper person to be a legal practitioner’ and will likely remain so for the indefinite future;
· The person bringing such an application bears the onus of satisfying the court of the requisite degree of indefinite unfitness on the balance of probabilities;
· That standard is not a fixed or simple one, but depends upon the matters before the court (Briginshaw v Briginshaw[2]);
· Whilst the onus of proof is a civil one, the Court approaches the making of such decisions with caution and ‘meticulous care’, and with a great appreciation for ‘the possibly disastrous consequences of disbarment to the individual concerned’;
· Although the disciplinary power in question is entirely protective and not punitive, that protection extends beyond protection of the public to include the legal profession as a group, the courts, the justice system and the community confidence in that system.
[1][2010] VSC 266 at [9], [10].
[2](1938) 60 CLR 336.
Mr Nguyen does not resist the application. Indeed, he has signed a minute of consent order consenting to the removal of his name from the Roll. He chose not to appear on the application. Nevertheless, removal of the name of a person from the Roll of practitioners in the exercise of the court’s inherent jurisdiction requires independent consideration by the court, even where the practitioner consents.[3]
[3]Re an application by a solicitor [1966] 1 NSWR 42, 43 (Wallace P, Jacobs and Asprey JJA agreeing).
For the reasons that follow I am satisfied it is appropriate, in the exercise of the court’s discretion, to make the order sought.
Background
After his admission to practice Mr Nguyen held the following practising certificates under the then governing legislation:[4]
(a)A principal practising certificate from 24 May 2004 – 13 May 2007 (subject to the condition that he was not authorised to receive trust money) ;
(b)An employee practising certificate from 14 May 2007 – 26 February 2008; and
(c)A corporate practising certificate from 27 February 2008 – 30 June 2009.
[4]Legal Practice Act1996 and Legal Profession Act2004.
Mr Nguyen appeared before the VCAT Legal Practice List for disciplinary proceedings on two occasions: the first before Judge Lacava on 17 October 2011 and the second before Senior Member Smithers on 25 January 2013. On each case he faced a number of charges arising from his conduct as a legal practitioner.
Judge Lacava recounted Mr Nguyen’s work experience as a lawyer in the following terms:
… [Mr Nguyen] had practised as a principal on his own account from on or about 24 May 2004 and he practised on his own account as a sole practitioner under the business name ‘Waterford Green Lawyers’ (‘WGL’) from 26 May 2004 to 13 May 2007 when WGL closed. Thereafter, he held a practising certificate as an employee solicitor from 14 May 2007 to 28 February 2008 during which time he was engaged in legal practice as an employee legal practitioner with the firm of Gadens Lawyers. He further engaged in practice as an employee corporate legal practitioner from 27 February 2008 to 30 September 2009 when he was engaged in legal practice as an employee of Sportsco Pty Ltd.[5]
[5]Legal Services Commissioner v Nguyen (Legal Practice) [2011] VCAT 2105 (‘Reasons: Judge Lacava’) [9] (footnotes omitted).
The proceeding before Judge Lacava concerned events between April and June 2007, a period spanning the time over which Mr Nguyen held a principal practising certificate (with no authority to receive trust monies) until 13 May 2007, and then an employee practising certificate thereafter. Describing the circumstances that gave rise to the charges before him, Judge Lacava said:
In about April of 2007, Ms Roa and her daughter decided to purchase a vacant block of land located at 6 Stores Court, Braybrook. The vendors were Tong Duy Tran and Minhhieu Nguyen. The second vendor is not related in any way to the respondent [ie. Andrew Nguyen]. There was no real estate agent involved in the sale and Ms Roa contacted the respondent who acted as the solicitor for the vendors. Ms Roa met the respondent at the offices of WGL in St Albans on or about 20 April 2007 at which time she paid the sum of $1,000 in cash in part payment of the deposit for the purchase. She was given a receipt that was not a trust account receipt.
Shortly after making that payment, Ms Roa signed a contract of sale. On 9 May 2007, Ms Roa attended for a second time at the offices of WGL to pay the balance of the deposit. The respondent was not available to see her. She gave a cheque in favour of WGL for the balance of the deposit of $8,500 and that was given to the receptionist at WGL’s offices in St Albans. On making this payment she was not given a receipt in any form.
…
… Nevertheless, on or about 23 May 2007, a letter was sent on the letterhead of WGL on behalf of the respondent’s clients, the vendors, to the conveyancer then acting on behalf Ms Roa and her daughter. The letter shows the respondent named as the principal of the firm and reads as follows:
We act on behalf of the vendor and understand you act for Ruth Roa and Kimberley Lini who has contracted to purchase the above property from our client. We note that settlement is scheduled for 4 June 2007. Accordingly please forward transfer of land and statement of adjustments to our office as a matter of urgency. If you have any queries please do not hesitate to contact our office.
The letter is signed by the respondent.
On 5 June 2007 a further letter was written to the conveyancers acting on behalf of the purchasers. It was also on the letterhead of WGL. This is followed by yet another letter on 11 June 2007 also on the letterhead of Waterford Green which did not show the respondent as principal, but which was signed by him. This letter was addressed to the purchasers direct. Each of the letters I have referred to was written after the respondent’s practising certificate was made conditional upon him practising only as an employee.[6]
[6]Reasons: Judge Lacava [11], [12], [28] and [29].
Arising from those circumstances a number of charges were laid against Mr Nguyen under the Act and at common law. Four charges were found proven, namely one charge of failing to bank trust money into a trust account, two charges of failing to give trust receipts, and a charge of professional misconduct for failing to issue such receipts.
On 10 November 2011 Judge Lacava ordered that: Mr Nguyen not be permitted to apply for a practising certificate for a period of 12 months from 20 October 2011; before again receiving a practising certificate he undertake, over a 12 month period, courses relating to a practitioner’s obligations and responsibilities relating to the keeping of trust accounts; and he not re-engage in legal practice on his own account unless, prior to doing so, he first held a practising certificate with a condition restricting him to an employee for a period of at least 12 months.
In giving his reasons Judge Lacava observed:
He does not presently hold a practising certificate. Mr Nguyen told me that he intends to re-apply for a practising certificate and to once again involve himself in legal practice in the future.[7]
[7]Reasons: Judge Lacava [55].
The evidence given by Mr Nguyen that evidently led his Honour to make those observations was as follows:
Vice President Judge Lacava: What do you now do?
The Respondent: I’m a –
Vice President Judge Lacava: Do you practise as a lawyer?
The Respondent: No, I’m a corporate manager in corporate Your Honour. But I do intend and I have applied it – to renew my practising certificate.
Vice President Judge Lacava: To do what?
The Respondent: To practise Your Honour, perhaps better than I have.
[And in a second passage]:
Vice President Judge Lacava: …What area of corporate managing do you presently work in?
The Respondent: I worked at Sportsco, I’m the corporate manager doing – where (sic) a franchisor Your Honour, in the franchising business. The business, sorry, the (indistinct) I work for, Atomic Group, not Sportsco Your Honour. Sportsco’s the subsidiary of that holding parent company and it’s an IT sports integrated industry. I work on procurement of new franchisee negotiating acquisitions and the like Your Honour.
Vice President Judge Lacava: Yes?
The Respondent: It’s a small firm – sorry, small company, but it’s a – (indistinct), it doesn’t pay anything. But I’m happy where I am, but in saying that I have just applied for legal position at another corporation and I intend to revisit my practising side Your Honour.[8]
[8]As set out by Senior Member Smithers in Legal Services Commissioner v Nguyen (Legal Practice) [2013] VCAT 345 (‘Reasons: Senior Member Smithers’),[13].
From those two passages it is clear that Mr Nguyen told Judge Lacava, on affirmation, (1) that he was not then practising as a lawyer and, (2) that he had applied for a practising certificate. As at 17 October 2011 Mr Nguyen had last held a practising certificate of any kind on 30 June 2009.
Despite not having held a practising certificate since June 2009, and despite what he told Judge Lacava, the reality of the situation as later found by the tribunal was:
Mr Nguyen … continued to practise as in-house counsel for a corporation for almost two years and five months after his last practising certificate expired. During the last six months of that period, he conducted Supreme Court litigation on behalf of his employer … [and] for at least that six month period, he knew he did not have a practising certificate.[9]
[9]Reasons: Senior Member Smithers [1].
Mr Nguyen’s conduct of the Supreme Court litigation between June and November 2011 was the subject of 14 charges which brought him before Senior Member Smithers on 29 January 2013. The actions the subject of those 14 charges included:
• On 8 June 2011, in his capacity as ‘legal counsel’ of Atomic Group (Australia) Pty Ltd (trading as Sportsco) he briefed Mr Justin Mereine of counsel to act for Sportsco in respect of a Supreme Court proceeding, Sportsco Pty Ltd v Singh Group Pty Ltd.
• On 14 June 2011, he acted as instructing solicitor in the Supreme Court hearing of that matter before Gardiner AsJ. The decision of Gardiner AsJ in that case[10] refers to the solicitors for the plaintiff as ‘Mr Andrew Nguyen, legal counsel Sportsco Pty Ltd’.
• On 24 August 2011 Mr Nguyen filed a Notice of Appeal in that proceeding appealing from the judgment of Gardener AsJ. The Notice of Appeal included Mr Nguyen’s signature above the words ‘Andrew Nguyen Legal Counsel, Sportsco Pty Ltd’.
• On 10 November 2011, Mr Nguyen instructed in the Supreme Court (before Ferguson J) on the hearing of an appeal from the judgement of Gardiner AsJ.
• On 15 November 201, the Supreme Court constituted by Ferguson J, handed down judgment on the appeal. Mr Nguyen instructed counsel in court at the handing down of the judgment.[11] The judgment recites on the first page that ‘Mr Nguyen, Legal Counsel, Sportsco Pty Ltd’ was the solicitor for the plaintiff. It also refers to Mr Nguyen’s role in the transaction the subject of the appeal. It refers to him in paragraph 11 as ‘Mr Nguyen, Sports Co’s In-house Counsel’.
• Between 15 November and 21 November 2011 Mr Nguyen instructed Sportsco’s counsel, Mr Mereine, to draft written submissions on costs on behalf of Sportsco.[12]
[10] [2011] VSC 390.
[11] Sportsco Pty Ltd v Singh Group Pty Ltd [2011] VSC 576.
[12]Reasons: Senior Member Smithers [8].
Accordingly, as well as practising without any practising certificate, Mr Nguyen compounded the situation by lying to Judge Lacava on 17 October 2011, that is, by denying he was practising as a lawyer, when in fact he was. Even after making his false statements to Judge Lacava about not practising law, the above list of actions shows he continued to conduct a legal practice in the Supreme Court. Furthermore, he told Judge Lacava he had applied for a practising certificate yet the evidence disclosed that he had not done so.
Before Senior Member Smithers on 29 January 2013 Mr Nguyen pleaded guilty to the 14 further charges. Mr Nguyen gave evidence before the tribunal in an endeavour to explain his conduct. The senior member described that evidence this way:
The effect of Mr Nguyen’s evidence was that he carried out his role at Sportsco, which included practising as a legal practitioner, without realising he did not have a current practising certificate from 2009. He contended that his practising without a practising certificate from June 2009, up to the day of the first disciplinary hearing, 17 October 2011, was inadvertent. He also made submissions suggesting that the admittedly false statements which he made during the VCAT hearing should not be viewed in the most serious light.
The effect of his evidence was as follows: he renewed his own practising certificate each year whilst practising as a sole practitioner. Then, when he was at Gadens, the firm arranged that for him. Next, when he was at Sportsco (from February 2008) the Chief Financial Officer, or an administrative assistant had done it for him initially. However, due to inadvertence, his practising certificate was not renewed after June 2009. He said it was only on the day of the VCAT hearing before Judge Lacava – 17 October 2011 – that he realised for the first time, that he did not in fact hold a current practising certificate. He accepted it was his responsibility to renew it, rather than anybody else’s.[13]
[13]Reasons: Senior Member Smithers [19] and [20].
In addition Mr Nguyen sought to explain his continued conduct of the Supreme Court litigation:
During his evidence, Mr Nguyen stated that ordinarily, Sportsco would retain external solicitors in a matter such as the Singh litigation, but at the time, the company could not afford that. So he was under pressure to conduct the litigation himself. In relation to the period after the 17 October 2011 hearing, Mr Nguyen was asked whether [the Tribunal] was ‘to understand that you deliberately engaged in legal practice knowing you weren’t entitled to because that was in the best interests of your employer, is that your answer?’ He responded: ‘I felt a mixed interest, yep, that’s my answer. There was a um, inconsistent interest and I was caught right in the middle of it’.[14]
[14]Reasons: Senior Member Smithers [28].
And finally Mr Nguyen gave an explanation concerning the false statements he made to Judge Lacava:
In relation to the statement he made to Judge Lacava that he did not practise as a lawyer, Mr Nguyen was quite clear in his evidence before me that this was a falsehood. He said he could not explain why he gave that answer – he did it on the spur of the moment. He was under stress.
In his evidence, Mr Nguyen was very reluctant to admit that this was a ‘lie’. When asked to acknowledge this, he kept coming back to euphemisms such as, ‘I wasn’t fully frank, um, and I was ambiguous in my testimony’, ‘I’ve admitted to um, somewhat misleading judge [Lacava] by not being fully frank with him’, ‘its not about lying, its about being not fully upfront,’ ‘no, I didn’t lie, I wasn’t absolutely candour…’.
The second false statement made by Mr Nguyen to VCAT during his testimony on 17 October 2011 was that he had applied for a practising certificate. His partial explanation for that was that he was in the process of applying for another in-house legal counsel role at that point. I infer this statement was made to convey to the judge that he was keen to practise law, in support of a submission that any interference with his right to practise be avoided or minimised.[15]
[15]Reasons: Senior Member Smithers [29], [30] and [31].
Having heard the evidence of Mr Nguyen, and observed him in the witness box, Senior Member Smithers made the following findings of fact:
I find that Mr Nguyen knew he was practising without a practising certificate when conducting that litigation. To that extent, I do not accept that the false statement to Judge Lacava that he was not practising was spontaneous.
Mr Nguyen accepted that after 17 October 2011, he practised whilst being aware that he did not hold a practising certificate. It is clear that after that date, Mr Nguyen chose to continue to carry out his legal work at Sportsco without renewing his practising certificate.
As Judge Lacava found to be the case in relation to the first disciplinary proceeding, similarly here, I find that from May to November 2011 Mr Nguyen knew he did not hold a practising certificate, but nevertheless decided to ‘chance his hand’.[16]
[16]Reasons: Senior Member Smithers [39], [40] and [41].
Mr Nguyen put forward submissions to Senior Member Smithers as to the appropriate disposition in his case, and why it should be granted. He argued that it should be limited to a two year ban on his practising together with stringent conditions focused on education and rehabilitation. In support of that submission, he contended that he had made an early plea, he was quite junior in the profession, he had been a hard worker against whom there had been no complaints apart from those giving rise to the first disciplinary proceedings, he had chosen to work in a socio-economically disadvantaged area, he had carried out volunteer work at the “Deer Park Legal Aid Centre”, and he was financially bereft so he and his family would suffer great hardship if he could not practise law.
After considering the arguments and the evidence Senior Member Smithers made the following further findings:
Despite Mr Nguyen’s earnest statements, I am left with no confidence that he understands the significance of his conduct. Even if his lies to Judge Lacava were told in a moment of weakness, Mr Nguyen did not take any action to confess to them, even after he had time to reflect. He could have done so before the end of the hearing (preferably) or in the days or weeks afterwards, before Judge Lacava handed down his decision.
In his evidence before me, and in earlier correspondence with the LSC, Mr Nguyen said he was under great stress when giving his evidence before Judge Lacava on 17 October 2011. He said he felt extremely distressed embarrassed and ashamed by his performance in the witness box, especially under cross-examination. He said his answers were spontaneous in trying to cover his embarrassment and shame. As stated, however, I do not accept that Mr Nguyen was unaware he did not hold a practising certificate after May 2011. To that extent I reject his explanation that he panicked in the witness box when he suddenly realised he had been practising without a practising certificate, causing him to lie about his circumstances. Also of course, he had been reminded of his non-registered status early in the hearing, when the certificate under s 7.2.5(1) had been tendered and handed to him.
He also subsequently told the LSC that he did not recall giving evidence to the Tribunal that he was not currently practising. Again, I do not accept this. On his own version of events, Mr Nguyen knew he was practising, albeit he did not realise until 17 October 2011 that he did not hold a practising certificate. I cannot accept he could forget he had told that untruth in the witness box. Rather, it would have been something that would have loomed large in his mind, given that it might well be discovered by the LSC that he was in fact practising at the time (as in fact occurred).
…
Overall, I have come to the conclusion that Mr Nguyen is not a person of honesty. This is compounded by his reckless preparedness to ‘chance his hand’ and practise unregistered. This is the second time he has continued to practise in a manner contrary to limitations under the Act. I can have no confidence that if allowed to practise he would not act in this way again. He has worked as a lawyer for seven years, (although he only held a practising certificate for five of those years) in three different styles of practice, and yet in that time has not gained a genuine understanding of the basic requirement of honesty. Accordingly, I conclude that Mr Nguyen is unfit to practise, and likely to remain so for the indefinite future.[17]
[17]Reasons: Senior Member Smithers [60], [61], [62] and [74].
On the basis of those findings Senior Member Smithers recommended to the Supreme Court that Mr Nguyen’s name be removed from the local Roll of practitioners. The issue now is whether such an order should be made.
Principles
As I have already observed, the critical question is whether I am satisfied that Mr Nguyen has been shown not to be a fit and proper person to be a legal practitioner. In Legal Services Board v Rushford,[18] Bell J recently collected and summarised the principles on this topic:
[18][2012] VSC 632.
… After a person has been so admitted, the courts implicitly hold him or her out to be a person who is fit to hold that office. When it is brought to the court’s attention that the person’s conduct or situation gives cause to challenge the continuation of that position, the courts must reconsider his or her suitability to practise. That principle was explained by Lopes LJ in Re Weare:
To my mind the question which the Court in cases like this ought always to put to itself is this, is the Court, having regard to the circumstances brought before it, any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor? That appears to me to be the question which the Court always has to answer when a matter of this kind comes before it.
Such reconsideration is seen to be the court’s positive responsibility. So, in Southern Law Society v Westbrook, O’Connor J said:
The Supreme Court in admitting a solicitor to the roll incurs very great responsibility to the public. Having admitted him, it incurs an equally serious responsibility in keeping him on the roll if once the attention of the Court has been called to conduct on his part which shows that he is not a fit and proper person to remain there.
It will be obvious to everyone why the courts are concerned to ensure that only fit and proper persons are admitted to and continue in practice as officers of the court. Legal practitioners have heavy responsibilities and particular privileges which must be properly exercised in the interests of justice and of maintaining public confidence in the legal profession. The importance of this point was emphasised by Doyle CJ and Stanley J in Legal Practitioners Conduct Board v Clisby
It is of the utmost importance that public confidence in the legal profession be maintained. Legal practitioners play an integral part in the administration of justice. The obligations which accompany a practitioner’s position are commensurate with the responsibility involved. The duties of legal practitioners include a duty to uphold the law, a duty to the Court, a duty to clients and a more general duty to members of the public. The Court and the public demand high standards from practitioners. This is reflected in the legislative processes that regulate the admission of practitioners and govern their conduct.[19]
[19]Ibid [15], [16] (citations omitted).
His Honour went on to say further:
In Hughes & Vale Pty Ltd v New South Wales [No 2], Dixon CJ, McTiernan and Webb JJ said the standard of being a ‘fit and proper’ person to practise involved three things: ‘honesty, knowledge and ability’. In McGrath, Warren CJ said the concept of ‘fit and proper’ required ‘technical and moral aptitude sufficient to meet the demands of the role in question’. Her Honour went on to adopt the analysis of Walters J in Sobey v Commercial and Private Agents Board. Speaking in an analogous context, his Honour said the concept of ‘fit and proper’ required the person to be possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence ... but also ... of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.
The conduct or circumstances which may establish that a person is no longer a fit and proper person to be on the roll of practitioners are not closed. Judgments of the High Court have repeatedly stressed the need to consider ‘the whole position’…[20]
[20]Ibid [19] and [20] (citations omitted).
As is apparent from the statements extracted by Bell J, one of the critical facets of being a fit and proper person is the characteristic of honesty. A significant number of cases deal with the importance of candour by a legal practitioner, particularly in the face of the court. To mislead the court is the antithesis of such honesty and candour. Any attempt by a lawyer to mislead judicial officers, courts and tribunals is treated as being extremely serious.
In Incorporated Law Institute of New South Wales v Meagher[21] Isaacs J held:
The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all the loyalty of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great. But, if added to the imperfections inherent in our nature, there be deliberate misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice, those tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure. There is therefore a serious responsibility on the Court — a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential.[22]
[21](1909) 9 CLR 655.
[22]Ibid 681.
In a similar vein, Maxwell P held in Guss v LawInstitute of Victoria Ltd:[23]
It is difficult to overstate the importance to the administration of justice of the paramount duty of a legal practitioner not to mislead the court. Where there is any conflict, or risk of conflict, between that duty and what the practitioner perceives to be his/her duty to the client, the duty to the court must always prevail.[24]
[23][2006] VSCA 88.
[24]Ibid [39]
In Kyle v Legal Practitioners’ Complaints Committee[25] Parker J held:
The duty of counsel not to mislead the court in any respect must be observed without regard to the interests of the counsel or of those whom the counsel represents. No instructions of a client, no degree of concern for the client's interests, can override the duty which counsel owes to the court in this respect. At heart, the justification for this duty, and the reason for its fundamental importance in the due administration of justice, is that an unswerving and unwavering observance of it by counsel is essential to maintain and justify the confidence which every court rightly and necessarily puts in all counsel who appear before it.[26]
[25](1999) 21 WAR 56.
[26]Ibid 66.
More recently, Ross J (sitting as the President of VCAT) held in Forster v Legal Services Board:[27]
It is a basic precept of the legal profession that practitioners owe a duty of honesty and candour to the courts. It is the general duty of lawyers not to mislead a court by stating facts which are untrue, or mislead as to the true facts, or conceal facts which ought to be drawn to the attention of the court, or knowingly permit a client to deceive the court.[28]
[27][2011] VCAT 2216.
[28]Ibid [176].
Importantly, President Ross also held in that case:
A practitioner’s duty of honesty and candour to the courts applies despite the fact that the practitioner is acting in a personal capacity rather than on behalf of a client.[29]
[29]Ibid [179].
Very recently, the Court of Appeal in Forster v Legal Services Board[30] quoted with approval the following passage from Mahoney JA’s Judgment in the NSW Court of Appeal in Law Society of New South Wales v Foreman:[31]
A practitioner must not merely not deceive the court before which she practises; she must be fully frank in what she does before it. This obligation takes precedence over the practitioner’s duty to her client, to other practitioners and to herself: Meek v Fleming [1961] 2 QB 366 at 382 and 383. The justice system will not work if a practitioner is, for her own purposes, free to put to the court that which she knows to be false.[32]
[30][2013] VSCA 73.
[31](1994) 34 NSWLR 408.
[32]Ibid 447.
Conclusion
My task is to apply the principles as set out above to the facts as found by the VCAT and exercise my own judgment whether it is proper to make the order sought by the Commissioner.
In the context of assessing the gravity of Mr Nguyen’s conduct and the risk he poses as a legal practitioner to the public and institutional interests that require protection, of particular significance was that the tribunal:
· Found that Mr Nguyen knew he was practising without a practising certificate when conducting that litigation;
· Rejected his explanation for lying in the witness box;
· Rejected his claim, made to the Commissioner, that he did not recall giving evidence to the tribunal that he was not currently practising;
· Had no confidence that he understood the significance of his conduct;
· Concluded that he was not a person of honesty;
· Found that, although a lawyer for seven years, he had not gained a genuine understanding of the basic requirement of honesty; and
· Had no confidence that if allowed to practise he would not act in this way again.
In my opinion the conduct of and findings about Mr Nguyen demonstrate that he lacks the requisite qualities of honesty, knowledge and ability – particularly honesty – involved in the notion of being fit and proper to practise law. Indeed, I am satisfied he has been shown not to be fit and proper and that he will likely remain so for the indefinite future.
In short, his decision to ‘chance his hand’ at getting away with engaging in legal practice without a practising certificate; his lies to a judicial officer on affirmation; the tribunal’s overall assessment that ‘he was not a person of honesty’; and his seeming lack of full appreciation of the seriousness of his behaviour, persuades me that the protection of the public and the other interests referred to by the Chief Justice in McGrath requires that Mr Nguyen’s name be removed from the Roll.