| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2012 2427
| MICHAEL McGARVIE - LEGAL SERVICES COMMISSIONER | Applicant |
| v | |
| NIGEL TURNER | Respondent |
---
JUDGE: | EMERTON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July 2012 | |
DATE OF JUDGMENT: | 5 September 2012 | |
CASE MAY BE CITED AS: | Legal Services Commissioner v Turner | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 394 | |
---
LEGAL PRACTITIONERS – Appeal from Victorian Civil and Administrative Tribunal – Barrister - Non-payment of tax over 10 years – Conviction for tax offences – Guilty plea to charge of professional misconduct – Application to Tribunal for orders under Division 4 of Part 4.4 of the Legal Profession Act 2004 (Vic) - Whether the Tribunal applied the correct principles in imposing a sanction on the respondent – Whether the Tribunal’s discretion miscarried in imposing a sanction – Legal Profession Act 2004 (Vic) Part 4.4 – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 117, 148 – Proceeding remitted to Tribunal for determination according to law.
ADMINISTRATIVE LAW – Misconceiving nature and extent of jurisdiction – Failure to take into account relevant considerations – Tribunal’s duty to give reasons under s 117 of Victorian Civil and Administrative Tribunal Act 1998 (Vic).
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr K P Hanscombe SC Ms E A Bennett | Ms B Newman |
| For the Respondent | Mr B J Hess SC Mr J Buchecker | John Curtain & Associates |
HER HONOUR:
Introduction
This is an application by the Legal Services Commissioner for leave to appeal from an order made by the Victorian Civil and Administrative Tribunal imposing sanctions on the respondent, a legal practitioner, for non-payment of tax.
The respondent is a member of the Victorian Bar. For a period of ten years, between 1996 and 2006, he did not comply with his taxation obligations. He pleaded guilty to a charge of professional misconduct within the meaning of s 4.4.3(1)(b) of the Legal Profession Act 2004 (Vic) (’the Act’) for engaging in conduct that justified a finding that he was not a fit and proper person to engage in legal practice.
The professional misconduct to which the responded pleaded guilty was based on the following:
(a)his conviction for tax offences on 18 June 2002 involving failure to lodge tax returns on time for the financial years 1 July 1996 to 30 June 2000;
(b)his conviction for tax offences on 28 May 2003 involving non-compliance with the order of the Magistrates’ Court made on 18 June 2002 referred to above;
(c)his conviction for tax offences on 24 April 2007 involving failure to lodge on time income tax returns for the financial years from 1 July 1996 to 30 June 2005 and failing to lodge on time BAS returns for the consecutive quarters from 1 March 2002 to 30 September 2006;
(d)the respondent becoming an insolvent under administration pursuant to an insolvency agreement under Part X of the Bankruptcy Act 1966 (Cth), namely:
(i)his failure to disclose…
Keep reading for free
Create a free CaseChat account to read Legal Services Commissioner v Turner and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2012] VSC 394
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether the Tribunal had correctly applied the principles governing the imposition of sanctions and whether the Tribunal's discretion had miscarried. Specifically, the court needed to examine if the Tribunal had correctly interpreted and applied the relevant statutory provisions and exercised its discretion appropriately. The court also had to consider whether the Tribunal had adequately exercised its duty to provide reasons for its decisions as required under section 117 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
The court concluded that the Tribunal had not correctly applied the principles in imposing a sanction on the respondent and had misconceived the nature and extent of its jurisdiction. The court found that the Tribunal had failed to take into account relevant considerations and had not adequately discharged its duty to provide reasons for its decisions. As a result, the court held that the Tribunal’s decision was flawed and remitted the proceeding to the Tribunal for reconsideration according to law. The court emphasised the importance of the Tribunal adhering to its statutory obligations and ensuring that its decisions were based on a proper understanding of the relevant legal principles and evidence.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.