Legal Services Commissioner v Telehus - [2014] VSC 462

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 2014 03989

In the matter of the Legal Profession Act 2004 (Vic)

BETWEEN

LEGAL SERVICES COMMISSIONER	Plaintiff
v
NICHOLAS TELEHUS	Defendant

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JUDGE:	Ferguson JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2014
DATE OF JUDGMENT:	15 September 2014
DATE OF REASONS	29 September 2014
CASE MAY BE CITED AS:	Legal Services Commissioner v Telehus
MEDIUM NEUTRAL CITATION:	[2014] VSC 462

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LEGAL PRACTITIONERS — Roll of practitioners — Removal of name — Defendant misappropriated trust funds, represented that he held a practising certificate when he did not, failed to lodge tax and GST returns and breached court order that he file tax returns, made false declarations in support of application for renewal of practising certificate — No involvement by Defendant in disciplinary process or hearing to remove name from roll — No suggestion that Defendant had taken steps towards rehabilitation — Defendant not fit and proper person to practise law.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P J Matthews	Maria Smith, solicitor to the Legal Services Commissioner
For the Defendant	No Appearance

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Is Mr Telehus a fit and proper person to remain on the roll of legal practitioners?............. 2

Conclusion........................................................................................................................................... 5

HER HONOUR:

Introduction

The Legal Services Commissioner applied for an order that the name of Nicholas Telehus be removed from the Court’s roll of practitioners. I made an order to that effect and said that I would deliver written reasons for doing so at a later date. These are those reasons.

The Victorian Civil and Administrative Tribunal (‘VCAT’) recommended that Mr Telehus’ name be removed from the roll.[1] It did so in the context of having found Mr Telehus guilty of 27 charges of professional misconduct.[2] Among other things, VCAT ordered that Mr Telehus not be granted a practising certificate before April 2023. In summary, VCAT found that Mr Telehus:
[1]Legal Profession Act 2004 (Vic) s 4.4.17(a).
[2]Legal Services Commissioner v Telehus(Legal Practice) [2013] VCAT 2185 (6 December 2013) (Senior Member Smithers); Legal Services Commissioner v Telehus (Legal Practice) [2014] VCAT 24 (14 January 2014) (Senior Member Smithers).

(a)failed to pass on approximately $35,000 he received on behalf of a client and instead spent that money for his own purposes (although he did subsequently repay $16,000 of the amount which he took);
(b)failed to provide a bill to that client and to explain the basis upon which he claimed approximately $18,000 in fees;
(c)failed to pass on approximately $1,400 to another client;
(d)failed to deposit that amount into the trust account which he operated, thus creating a deficiency in the trust account;
(d)failed to provide a trust account statement to his client;
(e)failed to take action in the interests of the client in that he did not provide further information requested by a trustee in bankruptcy in respect of a proof of debt lodged on behalf of the client;
(f)claimed that he was…

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 462
Decision Date: 15 September 2014

CaseChat Overview and Summary

The Legal Services Commissioner brought an application for the removal of a legal practitioner's name from the roll of practitioners. The defendant, a former solicitor, was alleged to have misappropriated trust funds, represented that he held a practising certificate when he did not, failed to lodge tax and GST returns, and breached a court order requiring him to file tax returns. The defendant also made false declarations in support of an application for renewal of his practising certificate. The Commissioner argued that the defendant was not a fit and proper person to hold a practising certificate and sought his removal from the roll of practitioners.

The court considered whether the defendant's conduct demonstrated that he was not a fit and proper person to practise law. The Commissioner submitted that the defendant's actions showed a lack of integrity and unfitness to practise, while the defendant did not participate in the disciplinary process or hearing. The court noted that the defendant's conduct was serious and demonstrated a lack of probity, and that there was no evidence of rehabilitation or involvement in the disciplinary process.

The court found that the defendant's conduct was serious and demonstrated a lack of probity. The court held that the defendant had failed to demonstrate that he was a fit and proper person to hold a practising certificate. The court found that the defendant's conduct was a clear indication that he was not suitable to practise law and that his removal from the roll of practitioners was necessary to protect the public and maintain the integrity of the legal profession.

The court ordered that the defendant's name be removed from the roll of legal practitioners. The court held that the defendant was not a fit and proper person to practise law and that his removal from the roll was necessary to protect the public and maintain the integrity of the legal profession. The defendant was given an opportunity to make submissions on the appropriate terms of his removal, but he did not participate in the hearing. The court made an order that the defendant's name be removed from the roll of legal practitioners with immediate effect.

Orders