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Pham v Legal Services Commissioner

Pham v Legal Services Commissioner

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Case Copied 25 October 2016 71 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0003

QUAN PHAM	Applicant
v
LEGAL SERVICES COMMISSIONER	Respondent

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JUDGES:	REDLICH, KAYE JJA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 August 2016
DATE OF JUDGMENT:	25 October 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 256
JUDGMENT APPEALED FROM:	[2015] VSC 671 (Bell J)

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LEGAL PRACTITIONERS – Professional misconduct at common law – Primary judge dismissed appeal against VCAT orders suspending practising certificate and imposing penalty conditions – False statutory declaration by legal practitioner submitted to Legal Services Board – Finding that applicant knew facts were false – Whether finding constituted finding of dishonesty – Whether finding of dishonesty was open and procedurally fair – Jurisdiction to make such a determination notwithstanding the facts found constituted the commission of a criminal offence – Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 considered – Whether judge’s reasons adequate – Adequacy of reasons depends upon issues and nature of proceedings – Whether judge erred in making findings – Whether conduct sufficiently connected to legal practice – Procedural fairness – Whether breach of procedural fairness to hear issues of liability and penalty together – Whether penalty imposed excessive.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Ms R Sharp	Solicitor to the Victorian Legal Services Board and Commissioner

REDLICH JA
KAYE JA:

The applicant was admitted to practice as a lawyer on 15 February 2011. He did not obtain a practising certificate at that time. On 24 November 2011, he commenced to work for Kabo Lawyers in their new office in Springvale. Subsequently, on 16 February 2012 the applicant obtained his first practising certificate. It was subject to the standard supervisory statutory condition that required him to complete two years supervised legal practice. The applicant continued to work for Kabo Lawyers until 10 July 2012, when his employment with that firm terminated.

On 7 August 2012, the applicant made a statutory declaration in support of an application to the Legal Services Board (‘the Board’) to have the supervisory condition removed from his practising certificate. The Board rejected the application, and referred the matter to the Legal Services Commissioner (‘the Commissioner’). After carrying out an investigation, the Commissioner brought two disciplinary charges against the applicant, alleging that he had been guilty of professional misconduct arising out of the contents of the statutory declaration.

In the statutory declaration the applicant stated that he was employed at Kabo Lawyers as a solicitor between 24 November 2011 and 10 July 2012. He also stated that in that period, in addition to working between 9:00 am and 5:00 pm from Monday to Friday, he worked additional hours on those days, and also worked on weekends. In that way he claimed to have worked an additional 76 hours each week, which amounted to 328 extra days of supervised employment. The Commissioner alleged that these statements were false. First, the Commissioner alleged that the applicant was not…

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: [2016] VSCA 256
Decision Date: 25 October 2016

CaseChat Overview and Summary

The case of Pham v Legal Services Commissioner involved the appellant, a legal practitioner, who was appealing against decisions of the Victorian Civil and Administrative Tribunal (VCAT) that suspended his practising certificate and imposed penalty conditions. The Tribunal found that the appellant had submitted a false statutory declaration to the Legal Services Board, and that he knew the facts stated in the declaration were false. This finding led to a determination of professional misconduct and the subsequent penalties. The primary judge dismissed the appeal, and the appellant sought to appeal that decision. The central legal issues before the court were whether the finding of dishonesty by the Tribunal was open and procedurally fair, whether the Tribunal had jurisdiction to make such a determination given that it constituted a finding of the commission of a criminal offence, and whether the judge's reasons for dismissing the appeal were adequate.

The court examined the nature of the Tribunal's findings and determined that the finding of dishonesty did not necessarily equate to a criminal conviction. It held that the Tribunal had the jurisdiction to make such findings, drawing upon the principles articulated in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd. The court found that the judge's reasons for dismissing the appeal were adequate, as they sufficiently addressed the issues and the nature of the proceedings. The court also found that the Tribunal's determination that the appellant's conduct was sufficiently connected to his legal practice was open, and that there was no breach of procedural fairness in hearing issues of liability and penalty together. The penalty imposed was considered to be within the range of reasonable responses.

The court upheld the primary judge's dismissal of the appeal, confirming the suspension of the appellant's practising certificate and the penalty conditions imposed by VCAT. The findings of the Tribunal were supported by the evidence and the court found no procedural unfairness or error in the judge's assessment of the appeal. The appeal was dismissed, and the orders of VCAT were affirmed.

Orders