Nelson v Legal Services Commissioner - [2013] VSC 486

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 2013 04625

DARROLL NELSON	Plaintiff
v
LEGAL SERVICES COMMISSIONER	Defendant

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JUDGE:	WARREN CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2013
DATE OF JUDGMENT:	6 September 2013
CASE MAY BE CITED AS:	Nelson v Legal Services Commissioner [2013] VSC 486

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PRACTICE AND PROCEDURE – Stay – Application for stay of orders cancelling plaintiff’s practicing certificate – Where plaintiff involved in several ongoing matters – Whether need for public protection – Whether personal prejudice to the plaintiff – Whether conduct serious – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Walsh of Branagh	Lewenberg & Lewenberg
For the Defendant	P Matthews	Legal Services Commissioner

WARREN CJ:

The plaintiff seeks a stay of orders of the Victorian Civil and Administrative Tribunal (VCAT) suspending his right to practise as a lawyer for a period of eight months.

The Legal Services Commissioner applied to VCAT pursuant to s 4.4.13(2) of the Legal Profession Act2004 (‘the Act’) for an order under Division 4 of Part 4.4 of the Act.

In the application by the Legal Services Commissioner, the Commissioner recited and brought a total of nine charges against the plaintiff. Essentially the charges related to professional misconduct with respect to the receipt of trust moneys from individuals without a principal of the practice holding an Australian Practising Certificate authorising the receipt of trust money and also the failure to issue a receipt to individuals for cash moneys received.

In the reasons of VCAT, the tribunal set out extensively the facts of the matter including recital of the allegations by the Commissioner:[1]
[1]Legal Services Commissioner v Nelson (Legal Practice) [2013] VCAT 1347 [4]-[23].

THE CHAPPLE COMPLAINT (CHARGES 1-6)
4Mr Nelson’s firm acted for Mrs Cheryle Chapple in a Supreme Court proceeding relating to a mortgage over land owned by Mrs Chapple. Notwithstanding that Mr Nelson did not hold a practising certificate authorising the receipt of trust money, a law clerk employed by him, Mr John Lelleton, received three cash payments, direct from the client, each in the sum of $2,500. No receipt was issued by Mr Lelleton for any of the three cash payments. The first payment was made in April 2009 in the vicinity of chambers of a barrister brief in these proceedings. The second payment was made in or around June 2009 outside the chambers of another barrister, who was subsequently briefed in the matter. The third payment was made in July 2009 either outside Mr Lelleton’s home or in his office.
5Mr Nelson was still unaware of the receipt of these payments by Mr Lelleton in March 2012. Of the $7,500 received, $1,100 was used to pay the first barrister’s fee. The balance of the moneys received from the client ($6,400) has not been able to be recovered.
6The receipt of these three sums is the basis for the first six charges of professional misconduct against Mr Nelson. For each payment, there…

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: [2013] VSC 486
Decision Date: 6 September 2013

CaseChat Overview and Summary

Nelson brought an application for a stay of orders cancelling his practising certificate before the Legal Services Commissioner. The dispute arose out of Nelson's conduct which led to the cancellation of his practising certificate, and his challenge to this decision. The court was required to determine whether there was a need for public protection, whether the plaintiff had personal prejudice, and whether Nelson's conduct was serious enough to warrant the cancellation of his practising certificate. In assessing these issues, the court considered the need to protect the public, the personal impact on Nelson, and the gravity of his conduct. The court found that there was a need for public protection, and that Nelson's personal prejudice did not outweigh this need. The court also found that Nelson's conduct was serious enough to warrant the cancellation of his practising certificate. Therefore, the application for a stay was refused.

The court held that the public interest in maintaining the integrity of the legal profession and protecting the public from potential harm outweighed any personal prejudice to Nelson. The court found that the Legal Services Commissioner had acted within their jurisdiction in cancelling Nelson's practising certificate, and that the decision was not tainted by any procedural unfairness. The court also found that Nelson's conduct was serious enough to warrant the cancellation of his practising certificate, as it involved dishonesty and a breach of trust. The court concluded that there was no basis for granting a stay of the orders cancelling Nelson's practising certificate. The application was therefore refused.

Orders