Legal Services Commissioner v Turner - [2012] VSC 394

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

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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

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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).

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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…

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: [2012] VSC 394
Decision Date: 5 September 2012

CaseChat Overview and Summary

In the case of Legal Services Commissioner v Turner, the appellant, the Legal Services Commissioner, appealed a decision made by the respondent, the Victorian Civil and Administrative Tribunal, in relation to a complaint made against the respondent, a barrister. The complaint stemmed from the respondent’s failure to pay tax over a period of ten years, culminating in a conviction for tax offences. The respondent had entered a guilty plea to charges of professional misconduct brought by the Commissioner. The matter came before the Tribunal to determine whether the Commissioner's application for orders under Division 4 of Part 4.4 of the Legal Profession Act 2004 (Vic) should be upheld.

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