Legal Services Commissioner v PFM - [2014] VSC 341

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 4214

LEGAL SERVICES COMMISSIONER	Plaintiff
v
PFM (A PSEUDONYM)	Defendant

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 JULY 2014
DATE OF JUDGMENT:	23 JULY 2014
CASE MAY BE CITED AS:	LEGAL SERVICES COMMISSIONER v PFM
MEDIUM NEUTRAL CITATION:	[2014] VSC 341

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LEGAL PRACTITIONERS – order for removal of local lawyer from roll of practitioners – recommendation by the Victorian Civil and Administrative Tribunal – application by Legal Services Commissioner – acts of dishonesty over extended period of time – applications for employment – falsifying academic results – false statutory declarations – misleading statements to Law Institute of Victoria and Legal Services Commissioner – defendant not a fit and proper person – mental illness - court’s inherent jurisdiction – Legal Profession Act 2004 (Vic), ss 4.4.3(1), 4.4.3(2), 4.4.4, 4.4.6.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S R Senathirajah	Solicitor to the Legal Services Commissioner
For the Defendant	Ms M F Fitzgerald with Ms M Tait	Emma Turnbull Lawyers

TABLE OF CONTENTS

A.. Introduction................................................................................................................................... 1

B.. Background................................................................................................................................... 2

C.. Charges proved............................................................................................................................. 7

D.. Findings made and sanctions imposed.................................................................................... 8

E... Mental illness of PFM................................................................................................................. 9

F... General principles...................................................................................................................... 11

G.. PFM must be removed from the roll of practitioners.......................................................... 12

H.. Conclusion................................................................................................................................... 13

HIS HONOUR:

A. Introduction

On 27 May 2013, the Victorian Civil and Administrative Tribunal (“VCAT”) delivered judgment (“the Primary Judgment”)[1] and made orders, which included a recommendation to this court that the name of the defendant (“PFM”)[2] be removed from the local roll of practitioners. The plaintiff, the Legal Services Commissioner (“the Commissioner”), now applies to the court to have PFM’s name removed, under the inherent jurisdiction of the court.
[1][2013] VCAT 827 (Senior Member Smithers).
[2]PFM is a pseudonym. The proceeding is presently the subject of an order preventing publication of the name of PFM or any other publication to the extent that it might tend to identify PFM. This order was made by consent of the parties at an interlocutory hearing and prior to the introduction of the Open Courts Act 2013 (Vic). Whether the confidentiality regime put in place by this order ought to remain will be the subject of a hearing on 25 July 2014.

PFM was found guilty of a number of charges under the Legal Profession Act 2004 (Vic) (“the Act”) concerning “professional misconduct”[3].
[3]Professional misconduct is defined for the purposes of the Act in s 4.4.3(1) as follows:
For the purposes of this Act—
professional misconduct includes—
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSC 341
Decision Date: 23 JULY 2014

CaseChat Overview and Summary

The Legal Services Commissioner sought the removal of PFM, a local lawyer, from the roll of legal practitioners. The application was made following a recommendation by the Victorian Civil and Administrative Tribunal, which found PFM guilty of dishonest conduct over a prolonged period. This included falsifying academic results, submitting false statutory declarations, and making misleading statements to both the Law Institute of Victoria and the Legal Services Commissioner. The Commissioner argued that PFM was not a fit and proper person to remain on the roll, invoking the court’s inherent jurisdiction to regulate the legal profession in Victoria.

The primary legal issue before the court was whether PFM's conduct warranted his removal from the roll of legal practitioners. The court considered whether the findings of dishonesty and unfitness constituted sufficient grounds under the Legal Profession Act 2004 (Vic) to justify such a severe sanction. The court also evaluated the relevance of PFM's mental illness in determining his fitness to practice law, weighing this against the seriousness of his professional misconduct.

In its reasoning, the court found that PFM's extensive history of dishonesty and the deliberate nature of his actions substantially undermined the integrity of the legal profession. Despite acknowledging PFM's mental health issues, the court determined that these did not sufficiently mitigate the seriousness of his misconduct. The court concluded that PFM's removal from the roll was necessary to protect the public and maintain the reputation of the legal profession. The court exercised its inherent jurisdiction to order PFM's removal, aligning with the statutory provisions under sections 4.4.3(1), 4.4.3(2), 4.4.4, and 4.4.6 of the Legal Profession Act 2004 (Vic).

The court ordered that PFM be removed from the roll of legal practitioners, effective immediately. This decision was based on the clear evidence of PFM's unfitness to practice law, as demonstrated by his dishonest conduct and repeated breaches of professional integrity. The order reflects the court's commitment to upholding the standards of the legal profession and ensuring public confidence in the administration of justice.

Orders