Pham v Legal Services Commissioner

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 employed by Kabo Lawyers as a solicitor between 24 November 2011 and 16 February 2012 but was engaged as a subcontractor to assist with the administration of a new office. The Commissioner alleged, and the Tribunal subsequently found that it was only after the applicant obtained his practising certificate in February 2012, that the applicant was employed by Kabo Lawyers as an employee solicitor. Secondly, the Commissioner alleged, and the Tribunal subsequently found that the applicant did not work anything like the number of hours that he claimed during the relevant time.

As all of the facts relied upon by the Commissioner to establish the falsity of these statements were within the personal knowledge of the applicant, the Commissioner’s case, ultimately accepted by the Tribunal, was that the applicant knew those facts to be false.

The charges were heard by a Tribunal of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) on 17 July and 21 July 2014. In a reserved decision, the Tribunal found that the first charge had been established, and he dismissed the second charge, which was an alternative to the first charge. The Tribunal ordered that the applicant’s practising certificate be suspended until 30 June 2015, and imposed other conditions on the applicant’s return to practice after that date.[1]
[1]Legal Services Commissioner v Pham [2014] VCAT 1591 (‘Tribunal Reasons’).

The applicant appealed from that decision to the Trial Division of the Supreme Court pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998. In a reserved decision, the primary judge dismissed the appeal.[2] The applicant now seeks leave to appeal from that decision.
[2]Pham v Legal Services Commissioner [2015] VSC 671 (‘Reasons’).

Statutory declaration

The relevant parts of the statutory declaration, including the footnotes to that declaration, are as follows:

6I was employed at Kabo Lawyers as a Solicitor between the dates 24 November 2011 and 10 July 2012.^[2]During this period:
(a) I:
(i)worked full-time (38 hours per week), Monday to Friday (9am to 5pm), from office. This amounted to 164 days.
(ii)worked Saturdays (9am to 5pm), from office. This amounted to 33 days.
(iii)worked (in addition to (i) and (ii) above) 58 extra hours (Monday to Saturday) and 18 hours on Sundays, from home (these additional hours were done before and after my normal 9am to 5pm working day, and on weekends).^[3] I estimate that I worked an extra 76 hours each week via this arrangement. This would amount to 328 days.^[4]
(iv)had 10 days unused leave entitlement.

(b)I was under the supervision of Konfir Kabo, he:
(i)        is the Principal of Kabo Lawyers (since 2001);
(ii)       was admitted in 1998;
(iii)      currently holds an unrestricted Practising Certificate;
(iv)      is a registered Migration Agent (MARN 0209289)
(v)       is a Notary Public; and
(vi)practices in the areas of commercial, criminal, family, immigration and property law.

My work was supervised on a daily basis and took the form of face-to-face meetings, telephone and/or email correspondence. Even when I was working from home as stated in Paragraph 6(a)(iii) I was in regular contact with my supervisor via telephone and/or email when required. Annexed to this Statutory Declaration and marked ‘Annexure A’ is an original letter signed by Konfir Kabo verifying my employment at Kabo Lawyers.
(c) My duties included:
(i) client conferences and taking of instructions;
(ii)providing technical advice and assistance to clients;
(iii)record keeping and maintenance, liaising with relevant person(s) or organisation(s);

(iv) doing legal research (in complex areas of law); and
(v) drafting legal documents.

7Based on Paragraph 6(a) I believe I have completed my supervised period (520) days), in total I have completed 535 days. I ask that the supervised legal practice condition be removed from my Practising Certificate.

The following is the text of the footnotes referred to in the above passages from the statutory declaration:

[2]When I first started my employment at Kabo Lawyers (24 November 2011) they told me that they would arrange the Practising Certificate for me immediately and that in the meantime it would be alright for me to engage in legal practice because I was under their supervision at all times. About 3 months past and I had not received my Practising Certificate so I asked and they told me that they may have forgotten (I guessed that things were a bit disorganised because at the time there was a new office manager). I figured that they were just busy so I lodged the application myself and was pleasantly surprised that my Practising Certificate arrived about 4 days later (I thought it would take much longer, like months). I don’t think I should be penalised in this situation and ask that my supervised period start from 24 November 2011 because I was genuinely reliant on my employer as I was new to this whole application process.
[3]On average I worked around 17.5 hours per day (7 days per week) in total during my whole time at Kabo Lawyers (from office/home). I did exactly the same duties when I did additional work from home (except seeing clients), and contacted my supervisor via telephone and/or email when I needed to, or for more complicated issues I saw my supervisor as soon as I returned to the office. The hours stated here is not an exaggeration, my time at Kabo Lawyers was very demanding, I just had to get the work done (I knew this would reduce my supervised period dramatically, this was my motivation).
[4](164 days employed x 76 additional hours worked per week) /38 hours per week = 328 days.
[5]164 days + 33 days + 328 days +10 days (unused leave) = 535 days.

Annexed to the statutory declaration was a letter from Mr Konfir Kabo, the principal of Kabo Lawyers, dated 6 August 2012. That letter, drafted by the applicant, addressed to the Legal Services Board, stated that the applicant worked at Kabo Lawyers’ Springvale office and its city office on a full time basis ‘as a Solicitor between the dates 24 November 2011 and 10 July 2012’. The letter further stated that the applicant was under Mr Kabo’s supervision during that time, and that Mr Kabo checked the applicant’s work, amended it (if necessary) and gave feedback where required.

The charges

The two charges brought by the Commissioner against the applicant were as follows:

CHARGE 1
You are guilty of professional misconduct within the meaning of s 4.4.3(1) of the Act,[3] namely misconduct at common law, in that on 7 August 2012 you acted in gross breach of your professional duty by executing and then submitting a statutory declaration to the Legal Services Board, in circumstances where you knew, or ought to have known, the contents of the statutory declaration was false.
CHARGE 2
Alternatively, you are guilty of professional misconduct within the meaning of s 4.4.3(1)(b) of the Act, in that on 7 August 2012 you executed and then submitted a statutory declaration to the Legal Services Board, in circumstances where you knew, or ought to have known that, the contents of the statutory declaration was false, which occurred in connection with the practice of law and justifies a finding that you are not a fit and proper person to engage in legal practice.

[3]Legal Profession Act 2004 (footnote added).

Particulars of the content of the Statutory Declaration alleged to be false were contained in the Commissioner’s application to the Tribunal for Orders under Division 4 of the Legal Profession Act 2004. The two facts alleged to be false were that he was employed as a solicitor between November 2011 and July 2012 and that in addition to normal working hours he had worked an extra 76 hours per week during that period.

The proceedings before the Tribunal

The hearing before the Tribunal took place over two days. The applicant represented himself. The Commissioner called two witnesses, Mr Konfir Kabo, and Ms Loan Thanh Hoang, a lawyer employed by Kabo Lawyers. They gave their evidence on the first day of the hearing. On the second day, the applicant gave evidence. Statutory declarations and witness statements, made by each of the witnesses, were tendered in evidence as those witnesses’ evidence in chief. There is a transcript of the first hearing day. However, the Tribunal does not have a recording of the evidence or the proceedings on the second day, and there is no transcript of it. It appears that, at the conclusion of the applicant’s evidence on the second day, the case was adjourned. The parties subsequently filed written submissions relating to the question whether the applicant was guilty of the charges brought against him, and also relating to the issue of penalty. No further hearing took place before the Tribunal, before the Tribunal delivered his decision on 22 December 2014.

At the commencement of the hearing, on the first day, the applicant, by way of preliminary submission, contended that the Tribunal did not have jurisdiction to determine the proceeding brought by the Commissioner. He submitted that the charge against him basically involved an allegation that he had committed the crime of perjury, and that the Tribunal did not have jurisdiction to hear that charge. Rather, it was submitted in such a case, the Tribunal could only proceed on a certificate of conviction produced to it by the Commissioner.

In an ex tempore ruling, the Tribunal rejected that submission. He noted the charge of professional misconduct was quite a separate and distinct charge from that of perjury. The Tribunal held that it had jurisdiction to hear misconduct charges, notwithstanding that the circumstances, which gave rise to those charges, might also give rise to criminal charges. Accordingly, the Tribunal ruled that the charges before it were within its jurisdiction.

The evidence before the Tribunal

In order to address the issues raised on this appeal, it is necessary to set out, in summary, the evidence placed before the Tribunal.

Mr Kabo’s evidence in chief consisted of a statutory declaration and two statements made by him. In those documents, Mr Kabo stated that the applicant was initially engaged by Kabo Lawyers in November 2011 for a probationary period of three months to assist with the opening of the firm’s Springvale office. During that period, the applicant undertook administrative work, which did not involve legal practice, even though he was employed as a lawyer. His work involved administration, marketing and the overall management of the Springvale office. On the grant of his first practising certificate on 16 February 2012, the applicant undertook legal work on a family law file under Mr Kabo’s supervision. Mr Kabo stated that the applicant did not work on any other file until he left Kabo Lawyers on 10 July. The applicant saw a few other prospective clients, but he did not carry out any legal work for them.

Mr Kabo stated that the office hours of the Springvale office were 10:00 am to 6:00 pm Monday to Friday, but he allowed some flexibility, which enabled the applicant to commence later and finish later. He said that the applicant was in the office on a few Saturdays, as Mr Kabo was with him on one Saturday during the Lunar New Year celebration. However, Mr Kabo did not believe that the applicant attended the office most Saturdays and Sundays. He said it was ‘incomprehensible’ that the applicant would have worked on average 17.5 hours per day, seven days per week, particularly as he only worked on one complete file during that time.

Mr Kabo further stated that when he signed the letter dated 6 August 2012 (that was attached to the applicant’s statutory declaration), he had not seen a draft to the applicant’s statutory declaration. He signed the letter on the basis that it might, at a later stage, assist with the applicant’s application to have his supervised practice condition removed. Mr Kabo was not aware that the applicant proposed to apply for the removal of that condition immediately.

Mr Kabo rejected the statement made by the applicant (in his witness statement) that he was asked to prepare three precedents per week. Mr Kabo said that his firm already had its own set of precedents, and that it also had access to the LEAP precedent system. Mr Kabo never saw any precedents prepared by the applicant, and he would not have instructed a person as junior as the applicant to draft them. Mr Kabo could only recall asking the applicant to undertake one piece of legal research, which was connected with drafting an article on drug offences. He said that he did not expect his staff to work on the weekends, and that his offices were not open on Saturdays or Sundays. He also said that the applicant was not required to keep the Springvale office open over the Christmas break.

Mr Kabo was cross-examined, at some length, by the applicant. At the commencement of the cross-examination, the applicant questioned Mr Kabo about a contract of employment forwarded by him to the applicant on 16 December 2011. That contract described the applicant’s position or title as ‘lawyer’, and his duties as to ‘assist in legal matters’. Mr Kabo stated that the document was a draft, and it was intended that the agreement would commence on 24 February 2012, after the completion of the applicant’s three month probationary period. The applicant then cross-examined Mr Kabo about his letter of 6 August 2012 (that the applicant attached to his statutory declaration), which stated that the applicant ‘… worked at our Springvale office and our city office on a full time basis as a solicitor between the dates of 24 November 2011 and 10 July 2012’. The letter set out the legal work which the applicant performed during that time. Mr Kabo agreed that he had signed the letter. He said that he had copied and pasted the content of a letter that the applicant had sent to him. He was a bit ‘hectic’ at the time and when he looked at the letter ‘it looked fine’. Mr Kabo said that he made a mistake in signing the letter.

The applicant cross-examined Mr Kabo about a section in the first witness statement of Mr Kabo, in which he stated:

During his first three months of employment, Mr Pham undertook administrative work at Kabo Lawyers which did not involve any legal practice, even though he was employed as a lawyer.

The applicant put to Mr Kabo that that part of his statement contradicted his evidence. Mr Kabo stated that the applicant had said to him that he was admitted as a lawyer, and if he was to market the Springvale office, he would have to present as a lawyer. Thus (Mr Kabo explained), he agreed to the applicant presenting himself to the Springvale community as a lawyer.

The applicant next cross-examined Mr Kabo about the legal work performed by the applicant at the Springvale office. Mr Kabo stated that he recalled that there were a total of three legal matters on which the applicant worked. The first matter related to a first home owners grant, which involved filling out an application form for a first home owners grant. The second matter was a ‘land matter’ which took some months to complete.

The applicant then cross-examined Mr Kabo about his evidence that he would not get someone as junior as the applicant to draft precedents. The applicant drew to Mr Kabo’s attention some emails in which the applicant, at the request of Mr Kabo, had forwarded a draft pre-nuptial agreement. Mr Kabo stated that that document was not a precedent, but a draft document for one particular matter. He said that his firm had a number of precedents on file, and that the applicant could access the LEAP system for precedents. In the matter in question, he had asked the applicant to use a template to draft the agreement, and by doing so he was not asking him to draft a precedent. Mr Kabo also stated that he understood the applicant did attend the office on a few Saturdays, but that did not work out, and the applicant was not required to work on Saturdays any more. Mr Kabo denied that the applicant worked in the office every Saturday.

Mr Kabo agreed that the computer installed at the Springvale office enabled employees at that office to access data at the firm’s city office. Thus, it was possible for a person at Springvale to do legal work that was located in the city office. Mr Kabo also agreed that the applicant had attended the city office during the period 24 November 2011 to 24 February 2012 on numerous occasions to undertake training. However, Mr Kabo could only recall that the applicant had worked on two Saturdays during that period. Mr Kabo agreed that the applicant had received a Kabo Lawyers email address, a mobile telephone, and business cards describing him as a lawyer.

Mr Kabo said that he was a registered migration agent. The applicant’s role, in the first three months of his engagement, was a marketing role. There was about one inquiry each week relating to the migration work, but none of those inquiries resulted in actual jobs for the firm. Apart from that work, the applicant also did a few errands on behalf of the city office.

Mr Kabo stated that all of the applicant’s work had to be approved by him. The only substantial legal work carried out by the applicant was the pre-nuptial agreement, which Mr Kabo had asked him to draft.

The other witness, who gave evidence on behalf of the Commissioner, was Ms Hoang. Her evidence-in-chief was contained in a statutory declaration and two witness statements. In those documents, she stated that as the Springvale office was new, the applicant was originally employed for a probationary period of three months to assist with the administration, marketing and general management of that office. When the applicant sent his curriculum vitae to Mr Kabo, the firm was then advertising for an administrative person to work at the Springvale office. Most of the other applicants for the position had administrative or accounting backgrounds. Ms Hoang stated that the official opening hours of the office were from Monday to Friday between 10:00 am and 6:00 pm, and the applicant worked there during those hours. Ms Hoang stated that the applicant was not required to work on Saturdays. She understood that the applicant did attend the office on a few Saturdays, as he had suggested that that might bring the firm to the attention of potential customers who were attending the shopping precinct there. However, as time went on, there were insufficient clients attending the Springvale office to sustain it as a full time satellite office. At the commencement of the applicant’s employment, there were minimal inquiries, and the applicant’s tasks were mostly administrative and marketing. If a potential client came to the office, the applicant collected information from the client, and booked the client for a consultation with either Mr Kabo or Ms Hoang herself. The applicant was supervised by telephone calls and by email from the city office.

Ms Hoang stated she did not recall requesting the applicant to draft precedent documents. She denied that there was any requirement for the applicant to draft such documents. Kabo Lawyers used the LEAP precedent system, and it also had an extensive precedent library that had been developed over the life of the firm. During the period of the applicant’s engagement, Ms Hoang had no need for new precedents to be drafted. On one occasion, in January 2012, she requested the applicant type up a contract in relation to a development property. That task did not involve legal work, but was simply a matter of copying the words that were on an existing document.

In cross-examination, Ms Hoang reiterated that at the initial interview, the firm was not seeking to employ a lawyer. Rather, the applicant was interviewed for a position that had been advertised as an administrative assistant. All the other people, who were interviewed for the position, were of an administrative, accounting or financial background. Although the applicant was subsequently engaged as a lawyer, initially he was not employed in that capacity, but rather in a marketing or administrative role.

Ms Hoang agreed that the applicant had worked a few Saturdays at the Springvale office. At the beginning of the period, Ms Hoang attended the Springvale office on one or two days per week. On those occasions, the applicant was not doing much work, because the office was very quiet. She agreed that the applicant was provided with a Kabo Lawyers email address, a mobile telephone, and a business card denoting him as a lawyer.

Ms Hoang did not agree that the applicant always had internet access to the city office of Kabo Lawyers. The computer system that was introduced was unreliable, and as a result it only provided the Springvale office with intermittent access to the city office. During the period of his engagement with Kabo Lawyers, the applicant provided legal services to a few clients, but at all times under the guidance of Mr Kabo or Ms Hoang. In re-examination, Ms Hoang stated that the applicant did very little legal work during the period he was employed by Kabo Lawyers. He had two or three files, one of them being a family law matter.

The applicant’s evidence in chief consisted of a detailed statement, together with some 53 separate annexures. In his statement, the applicant stated that when he attended the Springvale office of Kabo Lawyers in November 2011, Ms Hoang told him that he was to be employed as a junior lawyer, and that the terms of his employment would be set by the relevant award. He described his first day at the office, where he was introduced to his duties by Ms Hoang. She told him that Mr Kabo and she wished to open an office in Springvale. Ms Hoang said that she would be organising the applicant’s practising certificate, together with business cards, a Kabo Lawyer email account, and a Kabo Lawyer mobile telephone. Ms Hoang told the applicant that since the office was new, it would take time for people to trust it sufficiently to engage it to do work. Accordingly, Ms Hoang told the applicant that a computer system was being installed, that would enable the applicant to assist with work that came to the firm’s city office. In addition, the system would permit the applicant to access precedents and documents, which was important because Ms Hoang wanted the applicant to draft and prepare new precedents (about three per week). Ms Hoang told the applicant that he would be the only lawyer at the Springvale office.

The applicant stated that on the first Saturday after he had commenced, he received a telephone call at his home from Ms Hoang, who asked him why he was not at work. As a result, the applicant understood that he was always required to work on Saturday. He was willing to do so, because that was his first employment in the legal profession.

The applicant stated that Ms Hoang was, for the most part of the first two weeks, at the Springvale office, and he had assisted her with current matters and observed her attending to clients. The applicant had also conducted legal research for her.

After about two months, the applicant had not received his practising certificate. When he raised the matter with Ms Hoang, she said that she had forgotten to attend to it. Accordingly, he applied for the certificate himself, which arrived four days later. The applicant stated that his main duties during working hours included taking potential clients’ inquiries, taking down their personal details and current situation, and compiling a comprehensive file note that he sent to Mr Kabo and Ms Hoang.

The applicant further stated that when the new computer system was installed, he was able to perform his duties of drafting and preparing new precedents. He said that he had to prepare at least three precedents each week, which he would then upload onto the office computer system. The applicant said he had spent about eight hours extra each day, outside his normal working hours, working on the precedents. From Monday to Saturday, he would spend five hours after the end of each work day, and three hours before the start of each work day, on that work. He would also normally spend about 18 hours every Sunday doing his precedent work, legal research, and other work.

The applicant stated that during normal office hours he would be occupied with work coming from the Springvale office and from the city office. As a result, he would have to carry out the work of updating legal documents and precedents outside normal hours. Mr Kabo and Ms Hoang would give him deadlines for completing those tasks, which sometimes required him to work overnight.

As indicated above, there is no transcript or other record of the hearing on the day on which the applicant gave evidence. It is clear from the reasons of the Tribunal that the applicant gave oral evidence[4] and he was cross-examined.[5]
[4]Tribunal Reasons [21].
[5]Ibid [25].

The applicant stated that during the Christmas period from 23 December 2011 to 8 January 2012, the city office was closed, but the Springvale office had remained open as usual.

The applicant stated that he was responsible for three legal matters, conducted under the supervision of Ms Hoang and Mr Kabo. The first was a matter which was resolved quite quickly and only required the client to inform the other party that he was seeing a lawyer. The second matter related to the preparation of a first home owners grant. The third matter was a family law matter that was conducted for about three months. During the period 27 February 2012 to 10 July 2012, the applicant’s duties remained the same as previously.

The decision of the Tribunal

In his decision, the Tribunal noted that the Commissioner was sought to prove four propositions, namely:

(a) The applicant was not employed as a solicitor for the entire period of 24 November 2011 to 10 July 2012.

(b) The applicant knew or ought to have known that he was not employed as a solicitor for the entire period 24 November 2011 to 10 July 2012.

(c) The applicant did not work for 17.5 hours per day, seven days per week during that period.

(d) The applicant knew that he did not work for 17.5 hours per day, seven days per week during that period.[6]

[6]Ibid [6].

The Tribunal noted that, while the civil standard of proof applied, it was necessary to take into account the considerations referred to by the High Court in Briginshaw v Briginshaw.[7]
[7](1938) 60 CLR 336 (‘Briginshaw’).

The Tribunal then stated that he had concluded that he was satisfied, on the evidence, that the applicant had been engaged as a subcontractor to assist with the administration, marketing and overall management of the new office of Kabo Lawyers for the period from 24 November 2011 to 27 February 2012. The Tribunal noted an email from the applicant to Mr Kabo dated 17 December 2011, in which the applicant had stated that his understanding was that he was to be a ‘subcontractor’ for a three month probation period which might then lead to a permanent position as an employee. The Tribunal further noted that the applicant could not have been lawfully engaged in supervised legal practice before 27 February 2012, as he did not, during that period, hold a practising certificate. In any event, the Tribunal was satisfied that, during that period, the applicant was performing administrative work. In that connection, he referred to an email from the applicant to Mr Kabo and Ms Hoang dated 1 February 2012, and an email by Mr Kabo to Ms Helen Hartsias dated 26 September 2012, which described the work of the applicant as administrative. The Tribunal also referred to the evidence of Ms Hoang and Mr Kabo, that the work performed by the applicant was administrative, and that he was engaged by the firm on a subcontract basis. Significantly, the Tribunal found, as the Commissioner had contended, that the applicant ‘knew that he was not permitted to engage in supervised legal practice because he was not an employee and he did not hold a practising certificate’.[8] Further the Tribunal found the applicant’s claim that he thought he held a practising certificate to be ‘inherently incredible’.[9]
[8]Tribunal Reasons [21].
[9]Ibid.

The Tribunal then addressed the issue whether the applicant had worked the hours claimed by him for the period 24 November 2011 to 10 July 2012 on that issue. On that issue, it accepted the evidence of Mr Kabo and Ms Hoang that the volume of work at the Springvale office was very small, and that little work was given to the applicant from the city office. The Tribunal referred to the applicant’s evidence, in which he had admitted that he did not visit clients’ homes, that he did not appear in court, that he did not go to court, and that he did not draw any briefs. It noted the applicant’s evidence that he had only ‘looked over’ some statements of adjustments and assisted with one contract of sale. The applicant had said that he had only one inquiry about a criminal matter but it did not proceed.

The Tribunal rejected the applicant’s evidence that he spent much of his time performing research and precedent development. It noted that that evidence was not supported by the testimony of Mr Kabo and Ms Hoang, and, further, it was completely improbable that the respondent would have been working the hours claimed by him. The Tribunal concluded:

… I am satisfied that the asserted hours are a construct in order to satisfy the two years’ worth of supervised legal practice requirement.
The hours worked by the respondent (the present applicant), and the nature of the work performed by him are both entirely within his own knowledge.[10]

[10]Ibid [26].

The Tribunal’s found, as the Commissioner had primarily contended, that the applicant knew the relevant facts to be false. The Tribunal said:

Conclusion
I prefer the evidence of Mr Kabo and Ms Hoang over that of the respondent.
I am satisfied to the requisite standard that the respondent made statements in his statutory declaration declared on 7 August 2012 which were false and that he knew that they were false. The making of a declaration containing material which the deponent knew to be false is a clear breach of a practitioner’s duty of honesty and candour and diligence in relation to the contents of documents. A false declaration by a legal practitioner can only be seen as constituting professional misconduct. Within the context of misconduct at common law, I am satisfied that the conduct is such as would be reasonably regarded as dishonourable or disgraceful by colleagues of good repute.[11]

[11]Ibid [28]–[29].

Accordingly, the Tribunal found the respondent guilty of professional misconduct at common law as alleged in the first charge. He dismissed charge 2. He then referred to the written submissions in which both parties had addressed the issue of penalty, subject to a finding of liability. The Tribunal noted the submission on behalf of the Commissioner that the applicant’s practising certificate should be suspended for a period of at least 24 months. He then concluded:

There is a need for specific and general deterrence together with a need to protect the reputation of the legal profession. Having regard to the respondent’s inexperience, it is my view that a period of suspension of the magnitude submitted by the Commissioner would be excessive to the point of being punitive. Of far greater value in the case of a practitioner at the very commencement of his legal career is a disposition which focuses upon conditions of supervision and a requirement to complete extra training. Having said that, a period of suspension is warranted having regard to the nature of the offence.[12]

[12]Ibid [33].

The Tribunal ordered that the applicant’s practising certificate be suspended for six months. He directed that, on return to practice, the applicant’s certificate was to be subject to a condition that the applicant was authorised to engage in legal practice as an employee only until the completion of a further 24 month period of supervised legal practice, and that the supervision was to be undertaken by a legal practitioner who was a principal of the firm that employs the applicant, and who works on a full time basis at the same office location. The Tribunal also directed that the applicant complete an extra two CPD points in ethics before the completion of his period of suspension.

Grounds of appeal from the decision of the Tribunal

On his application for leave to appeal to the Supreme Court pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998, the applicant relied on four grounds, namely:

(1)The Tribunal erred in finding that the Tribunal had jurisdiction to conduct the hearing. That ground of appeal was based on three separate propositions to which we shall shortly refer.
(2)The Tribunal failed to provide adequate reasoning for his decision. In his notice of appeal, the applicant relied on five aspects of the reasoning of the Tribunal , that he alleged were inadequate. He then set out, at extensive length, 22 matters which the applicant contended the Tribunal had failed to address in his reasons.
(3)The Tribunal ’s findings were not open on the available evidence. The applicant relied on five separate matters in support of that ground.
(4)The Tribunal failed to comply with requirements of procedural fairness. The applicant relied on a number of different aspects of the hearing in that regard.

As noted by the primary judge, the applicant provided written submissions of 108 pages, containing 194 paragraphs, in support of those grounds. The respondent’s submissions were of some 25 pages, containing 159 paragraphs. The applicant’s reply submissions covered 106 pages, and comprised 251 paragraphs.

The judge’s reasons

The judge addressed each of the four grounds raised by the applicant.

In respect of the first ground — whether the Tribunal had jurisdiction — the judge rejected each of the three submissions on which the ground was based.

First, the judge rejected the applicant’s submission that the charges against him were that he had committed the criminal offence of perjury, and therefore the Tribunal did not have jurisdiction to hear those charges. His Honour stated that alleged misconduct by lawyers may give rise to both criminal consequences and disciplinary consequences. The Commissioner was not required to ensure that any criminal processes against the applicant were exhausted before instituting disciplinary charges in the Tribunal.[13]
[13]Reasons [28].

The judge further noted that the charges against the applicant were not formulated in terms that required the Tribunal to investigate whether the applicant had committed a criminal offence. His Honour rejected the applicant’s submission that the Commissioner could not bring a charge of professional misconduct on the basis of alleged facts that might form the basis of charges of a criminal nature. Further, it was not necessary for the Commissioner to proceed on the basis of an official certificate of conviction as contended by the applicant.[14]
[14]Ibid [29].

Second, the judge then considered, and rejected, a submission by the applicant that the Tribunal lacked jurisdiction because the applicant had made the statutory declaration in his private and personal capacity. The judge noted that, in charge 1, the Commissioner did not contend that the applicant had made the declaration in the course of his legal work. Referring to the decision of the New South Wales Court of Appeal in New South Wales Bar Association v Cummins,[15] the judge stated that private misconduct ‘closely connected with the practice of law’ could amount to professional misconduct.[16] Although, at the time that the applicant made his declaration, he had left the employment of Kabo Lawyers, and was then unemployed, nevertheless he held a practising certificate with a supervised legal practice condition, and he made the declaration, and submitted it to the Board, in support of an application for the removal of that condition. Thus, the judge considered, the applicant made the declaration in his capacity as a legal practitioner relating to his right to practise. Accordingly, the Tribunal was entitled to take that circumstance into account in determining that the applicant was guilty of professional misconduct at common law.[17]
[15](2001) 52 NSWLR 279 (‘Cummins’).
[16]Reasons [32].
[17]Ibid [35]–[38].

Third, the judge also rejected a submission by the applicant that the Tribunal had found him guilty of a charge that had not been brought against him. The applicant had submitted that the Tribunal had committed a jurisdictional error in finding him guilty of dishonesty, in circumstances in which he had not been charged with an offence involving dishonesty. The judge considered that the Commissioner had not sought to establish dishonesty in the framing of the charge brought against the applicant. Thus, his Honour considered, at no stage did the Tribunal address the issue whether the applicant had a dishonest state of mind in relation to the contents of the statutory declaration. In considering the question of penalty, the Tribunal had referred to the applicant’s duty of honesty and candour, but that did not involve a finding of dishonesty by the applicant.[18]
[18]Ibid [42]–[43].

In relation to the second ground of appeal, the judge rejected the applicant’s contention that the Tribunal had failed to provide adequate reasons for its decision. The judge noted that there were only three witnesses in the case. The central issue, according to the judge, was whether the respondent had made a declaration containing statements that he knew or ought to have known were false. Those issues were capable of being dealt with concisely. The Tribunal’s reasons referred to the evidence of the three witnesses. They explained sufficiently why the Tribunal preferred the evidence of Mr Kabo and Ms Hoang. The Tribunal’s reasons, in rejecting the applicant’s submissions concerning jurisdiction, and on the issue of penalty, were adequate.

The third ground of appeal, before the primary judge, was that the Tribunal made findings not open to it on the evidence. In his submissions to the judge, the applicant complained of 11 separate findings made by the Tribunal. Having referred to the relevant authorities,[19] the judge noted that the question was whether the findings of fact complained of, were open on the evidence. The judge concluded that, applying that principle, each of the findings complained of by the applicant were open on the evidence.[20]
[19]Including (inter alia) S v Crimes Compensation Tribunal [1998] 1 VR 83; Love v Roads Corporation [2014] VSCA 129; Hoser v Department of Sustainability & Environment [2014] VSCA 206; Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207.
[20]Reasons [62].

His Honour then dealt individually with each of the Tribunal’s five findings that were the subject of the applicant’s complaint.[21] The judge rejected the applicant’s submission that the witnesses called on behalf of the Commissioner had conceded the correctness of the evidence given by the applicant. The judge considered that that was not a fair reflection of the evidence of the witnesses Mr Kabo and Ms Hoang.[22] His Honour rejected the submission that the findings made by the Tribunal were not in accordance with the Briginshaw standard. His Honour observed that the Tribunal had expressly referred to that standard, and that the applicant had not demonstrated that it was not properly applied.[23] Finally, the judge rejected the submission by the applicant that his actions did not warrant disciplinary action. The decision as to penalty was essentially a discretionary decision. The penalty imposed by the Tribunal was not excessive or disproportionate. The conditions, imposed by the Tribunal, were ‘directly responsive’ to the circumstances of the offending and of the applicant’s lack of experience as a practitioner.[24]
[21]Ibid [63]–[72].
[22]Ibid [73].
[23]Ibid [75].
[24]Ibid [78].

The judge also rejected the fourth ground of appeal, that the Tribunal had breached the rules of procedural fairness. The judge did not accept that those principles were contravened by the Tribunal in dealing with the issue of the jurisdiction of the Tribunal. The Tribunal had considered and dealt with the issue at the commencement of the hearing. Further, the judge did not accept the complaint by the applicant that the Tribunal had failed to inform the applicant that it would make findings in relation to the entire period of 24 November 2011 to 10 July 2012, and not just the limited period of 24 November 2011 to 27 February 2012. The judge described those submissions by the applicant as ‘misconceived’. The judge also rejected the submission by the applicant that the Tribunal was biased in the manner in which he conducted the proceeding.

Accordingly, the judge found that the applicant had not established any of the grounds of appeal relied on, and he therefore dismissed the appeal.

Application for leave to appeal to the Court of Appeal — grounds

The applicant now relies on three proposed grounds of appeal in his application for leave to appeal, namely:

(1)The judge failed to provide adequate reasoning in his reasons for judgment.
(2)The judge made findings that were not open to him. In particular, the applicant contends that the judge made the following findings that were not open to him:
(a)That the Tribunal was correct in finding that it had jurisdiction to conduct a proceeding where an alleged disciplinary offence is also capable of being a criminal offence under s 314 of the Crimes Act 1958 , as well as at common law.
(b)That the Tribunal was correct to find that the applicant’s ‘alleged private or personal misconduct’ amounted to professional misconduct.
(c)That the applicant’s alleged misconduct was ‘dishonourable or disgraceful’ without him being dishonest.
(d)That the applicant ‘acting innocently (ie having the genuine belief)’ could still be found guilty of the offence amounting to professional misconduct.
(e)That the Tribunal provided adequate reasoning.
(f)That the Tribunal was correct to find the offence had been made out ‘despite the respondent conceding there was something he was not charge (sic)’.
(g)That the Tribunal was correct in finding that the applicant knowingly committed the alleged offence despite the respondent producing no evidence supporting that intention.
(h)That the Tribunal was correct in finding the alleged offence could be made out on the evidence despite there being no such evidence.
(i)That the Tribunal did not breach the fair hearing rule.

Under this ground it was also put that the judge erred by not correctly applying legal principles or relevant matters and that therefore his findings were not open.
(3)The judge’s conclusions are unreasonable and no reasonable person could have arrived at them.

The course of the proceedings before VCAT

Before addressing the applicant’s grounds, it is necessary, having regard to the breadth and detail of those grounds, to examine some aspects of the proceedings before the Tribunal, the nature of the case presented by the Commissioner and the applicant’s understanding of that case.

The Commissioner, in his Notice of Decision to the applicant stated that he was satisfied that there was a reasonable likelihood that VCAT would find the applicant guilty of professional misconduct by inter alia executing and submitting a statutory declaration to the Legal Services Board in circumstances where he ‘knew the contents’ were false or alternatively, executed and submitted a statutory declaration to the Board in connection with the practice of law in circumstances where he ‘knew or ought to have known that the declaration was false. Proceedings were then commenced before the Tribunal. The Commissioner then applied to the Tribunal for orders against the applicant under the Legal Profession Act2004.

The applicant filed a witness statement in the Tribunal proceedings in which he joined issue with the evidence of Mr Kabo and Ms Hoang as to critical facts upon which the Commissioner intended to rely. The applicant therefore set out his version of events. In the course of doing so he acknowledged that he was aware that he could not practice as a lawyer without a practising certificate. He claimed that Ms Hoang had said she would apply for the certificate, a matter which she had denied. He acknowledged that in December 2011 he was aware that he did not have a practising certificate and made application for it and received it in February 2012. He set out the nature and hours of his work and continued to maintain that when account was taken of all of the hours worked outside normal working hours, he had satisfied the supervised work requirement. He asserted that the statutory declarations of the witnesses Mr Kabo and Ms Hoang were false as they contradicted facts in his statement and were mostly a ‘fabrication’. He identified various matters contained in their declarations which he said were not true. The applicant took issue with the evidence of Hoang and Kabo as to his conduct and challenged all of their evidence, which, if accepted, would demonstrate that the impugned the fact were false and that he knew them to be so.

Following the completion of the evidence, pursuant to the order of the Tribunal, the parties filed written submissions. The Commissioner set out the four propositions which we have set out above.[25] In the Commissioner’s written case under the heading ‘Mr Pham knew that he was not employed as a solicitor for the entire period 24 November 2011 to 1 July 2012’, the Commissioner submitted that the applicant ‘was aware’ that he was not employed as a solicitor for the entire period. The Commissioner further submitted that the applicant ‘was aware that he did not have a practising certificate’ and that he ‘knew he was not engaged in legal practice for the entire period’. In the alternative the Commissioner submitted that he ought to have been aware of those facts. Under the heading ‘Mr Pham knew that he did not work for 17.5 hours per day, 7 days per week for the period 24 November to 10 July 2012,’ the Commissioner submitted that the applicant was ‘clearly aware’ of the hours he did and did not perform’ being matters ‘entirely within his personal knowledge’. The Commissioner made clear in his submission that his primary case was, as it always had been, that the statements of fact made by the applicant in the statutory declaration were false and that he knew they were false.
[25]See [41] above.

We observe that the evidence upon which the Commissioner relied to establish the falsity of those facts also necessarily established the applicant’s knowledge that those facts were false as they were all facts within the applicant’s personal knowledge. To that effect, the Commissioner submitted in his written reply at the Tribunal, that the applicant ‘could not be mistaken’ about whether or not he worked the hours asserted and whether or not he was performing legal work for that period of time as these matters were within his personal knowledge. The Tribunal’s findings were to that effect. It was always apparent that if the evidence of Ms Hoang and Mr Kabo were accepted, a finding that the applicant did not know the impugned facts were false was not a realistic possibility.

The Commissioner submitted in his written case before the Tribunal that the making of a false declaration was a gross breach of a practitioner’s professional duties and in particular the duty of honesty and candour. He further submitted that as the present case was ‘one of dishonesty’ it was necessary for the penalty to have a punitive effect. The Commissioner further submitted that the applicant’s dishonesty related to his ability to practice as a lawyer noting that the applicant continued to assert the truth of his false declaration despite the evidence to the contrary. Further the Commissioner submitted as part of his case that the fact that the applicant’s dishonesty occurred at an early stage of his practice did not affect his obligation to be honest.

It is convenient to also deal at this point with an assertion made by the applicant before the judge and in this Court that the Commissioner had made a concession that the applicant may have had an honest belief as to the matters in his statutory declaration.

In the applicant’s correspondence in response to the Commissioner’s initial letter setting out the allegations against him, the applicant said that when he prepared the statutory declaration he was in the belief that he met both statutory and policy requirements for two years of supervised legal work. The Commissioner set out that correspondence in his application for orders at the Tribunal. The applicant then repeated that response in his witness statement, again stating that he believed that he had met the statutory and policy requirements of two years supervised legal practice.

In the Commissioner’s written submission at the Tribunal, he referred to these assertions of belief by the applicant. The Commissioner submitted that ‘it may well be that he (the applicant) believes he has completed the two years worth of supervised practice but that is not the relevant question here’. The Commissioner then set out what were the relevant factual issues as particularised in the application to the Tribunal; namely whether the statements as to the nature and volume of the applicant’s work during the stated period were true and whether the applicant knew those facts to be untrue or ought to have known that they were untrue.

In Part E of the applicant’s written submission at the Tribunal, the applicant, under the heading, ‘Honest and reasonable belief,’ then referred to this aspect of the written submission of the Commissioner, described as a ‘concession’ in the proceedings before the judge. The applicant submitted that an honest and arguably reasonable or mistaken belief was relevant because it bore upon whether his acts were ‘ intentional.’ Thus he said it was important to both liability and the question whether there should be any interference with his practising certificate. The contention, amplified before us, was that such a belief precluded a finding of any intentional falsehood and that accordingly no interference with his practising certificate would be justified.

Based upon such a contention, in Part F of his submission to the Tribunal, the applicant addressed the question of penalty and liability. Relying upon the fallacious submission that the Commissioner had made a concession that he had an honest belief as to the facts, the applicant then distinguished various cases which had been cited in which a disciplinary tribunal had made findings that a practitioner knew the falsity of the facts, had been dishonest, and had their practicing certificate removed.

Had the Commissioner charged the applicant with falsely stating that he had performed ‘two years worth of supervised practice,’ a belief as to that fact may have become relevant. But even if such an allegation had been made, given the falsity of the facts, it is difficult to see how the applicant could have held such a belief. The charges laid by the Commissioner were not, however, directed to the applicant’s belief that he had done two years’ worth of supervised legal work. The issue to which the applicant’s state of mind was relevant, was further set out by the Commissioner in his written submission immediately following the statement that the belief asserted by the applicant was irrelevant. Further, the Commissioner in his written reply before the Tribunal, again addressed the manner in which the applicant had sought to use the Commissioner’s so called ‘concession’ as to the applicant’s belief. The Commissioner submitted:

Assuming that the respondent believes he has completed the 2 years worth of legal practice, that belief is based on a certain factual premise: that he worked for 17.5 hours a day, 7 days per week for 7 months and during that time that he was doing ‘legal work’. It is the veracity of the factual premise contained in the Statutory Declaration — not the respondent’s belief about whether or not he has completed 2 years worth of legal practice that is the subject of the Charges before the Tribunal.

It is implicit from the Tribunal’s findings that it accepted the correctness of that submission and did not treat the applicant’s asserted belief as relevant to the questions of fact raised by the charges.

Legal principles

As indicated above, the first charge, which the Tribunal upheld, alleged that the applicant was guilty of professional misconduct, within the meaning of s 4.4.3(1) of the Legal Profession Act 2004, namely, misconduct at common law. That section contains an inclusive definition of that phrase which does not exclude its meaning at common law.

The common law meaning of the term ‘misconduct’, in the context of behaviour alleged against a professional person, has been well settled for more than one century. Its origins are in the judgment of Lopes LJ in Allinson v General Council of Medical Education and Registration.[26] In that case, the Court of Appeal was concerned with a statutory phrase ‘infamous conduct in any professional respect’ in the context of disciplinary proceedings against a medical practitioner. Lopes LJ held that that phrase denoted conduct by a professional person ‘… which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency’.[27] Subsequently, in Re a Solicitor; ex parte Law Society,[28] the Court of King’s Bench Division applied that definition to a solicitor in a case involving the meaning of the phrase ‘professional misconduct’ in the Solicitors Act 1888 (UK).[29] Subsequently, that meaning has gained currency in a number of Australian decisions.[30]
[26][1894] 1 QB 750.
[27]Ibid 763.
[28][1912] 1 KB 302.
[29]See Myers v Elman [1940] AC 282, 288–9 (Viscount Maugham).
[30]See, eg, In re A Solicitor [1933] VLR 103, 105 (Mann J); Re A Solicitor [1960] VR 617, 620, 622 (Dean J); Re Mayes v the Legal Practitioners Act [1974] 1 NSWLR 19, 24–25; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201, 203 (Glass JA and Samuels JA), 207 (Priestley JA).

The present case involves the meaning of the phrase ‘professional misconduct’. In Cummins,[31] the New South Wales Bar Association issued a summons in the Court of Appeal seeking an order that the name of the respondent, an experienced member of senior counsel, be removed from the roll of legal practitioners, on the ground that the respondent had failed to lodge a taxation return for 38 years. Spigelman CJ (with whom Mason P and Handley JA agreed) held that the court should declare that the respondent was not a fit and proper person to remain on the roll of legal practitioners. His Honour was satisfied that the respondent’s complete disregard of his legal and civic obligations, relating to the payment of income tax, was of such magnitude that he must be regarded as permanently unfit to practise.[32] The Bar Association also sought declarations that the respondent had been guilty of professional misconduct, and that he was not a fit and proper person to be on the roll of legal practitioners. The Chief Justice held that it was appropriate in the case to make both declarations.
[31](2001) 52 NSWLR 279.
[32]Ibid [28].

In reaching that decision, Spigelman CJ considered, at some length, the meaning of the term ‘professional misconduct’. His Honour noted:

There is authority in favour of extending the terminology ‘professional misconduct’ to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of ‘professional misconduct’ overlaps with, and usually it is not necessary to distinguish it from, the terminology of ‘good fame and character’ or ‘fit and proper person’.[33]

[33]Ibid 289 [56].

Spigelman CJ then examined a number of cases in which conduct by a professional, while not occurring directly in the course of professional practice, was considered to be sufficiently closely connected with practice to be characterised as professional misconduct. His Honour concluded:

The preparation and filing of tax returns is closely related to the earning of income, including professional income. The link is ‘sufficiently close’ to justify a finding of professional misconduct on the basis of Mr Cummins’ failure to lodge returns for 38 years.[34]

[34]Ibid 291 [66].

That passage, from the judgment of Spigelman CJ in Cummins, was cited with approval by the High Court in its decision in A Solicitor v Council of the Law Society of New South Wales.[35] In that case, a solicitor had pleaded guilty to four counts of aggravated indecent assault on persons under the age of 16 years. He was convicted and sentenced to three months’ imprisonment. Subsequently, following a further complaint by one of the victims, further similar charges were laid against the solicitor. While those charges were pending, the Law Society of New South Wales notified the solicitor it was considering disciplinary action in respect of the four offences the solicitor had admitted to committing. Subsequently, the solicitor was convicted of the further charges, but did not inform the society of the convictions.
[35](2004) 216 CLR 253.

The Law Society commenced proceedings in the inherent jurisdiction of the Court of Appeal of the Supreme Court for an order that the solicitor be removed from the roll of legal practitioners, on the ground that he had been involved in professional misconduct. The Law Society alleged that the conduct, constituted by the four admitted offences, was professional misconduct. It also alleged that the subsequent failure of the solicitor to disclose the later convictions was a breach of his duty of candour that amounted to professional misconduct. The New South Wales Court of Appeal found that both matters, relied on by the Law Society, constituted professional misconduct by the solicitor, and that accordingly the solicitor was not a fit and proper person to be a legal practitioner.

On appeal, the High Court held that the conduct of the solicitor, in committing the criminal offences, was not sufficiently connected to his practise as a solicitor to amount to professional misconduct. On the other hand, it held that the solicitor’s conduct, in failing to disclose his subsequent convictions to the Law Society, constituted professional misconduct. In reaching those conclusions, the Court[36] stated:

The dividing line between personal misconduct and professional misconduct is often unclear. Professional misconduct does not simply mean misconduct by a professional person. At the same time, even though conduct is not engaged indirectly in the course of professional practice, it may be so connected to such practice as to amount to professional misconduct.[37]

[36]Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.

[37]Ibid 267 [20], citing New South Wales Bar Association v Cummins (2001) 52 NSWLR 279, 291 [66].

Their Honours noted that the solicitor’s duty of candour in his dealings with the Law Society was a professional duty, so that breach of that duty, by the solicitor failing to inform the Law Society of the further convictions, constituted professional misconduct by him.[38] On the other hand, the conduct of the solicitor, in committing the acts of indecency upon the two victims, did not occur in the course of the practice of his profession, and had no connection with that practice. Accordingly it did not amount to professional misconduct.[39] Their Honours concluded:

It is true that the conduct involved a form of breach of trust, being the trust reposed in the appellant by the mother of the children … and the children themselves. However, the nature of the trust, and the circumstances of the breach, were so remote from anything to do with professional practice that the characterisation of the appellant’s personal misconduct as professional misconduct was erroneous.[40]

[38]Ibid 272–3 [30].

[39]Ibid 273–4 [32]–[34].

[40]Ibid 274 [34].

The principles, discussed in the foregoing cases, can be summarised shortly for the purposes of the issues arising in this application. First, in order that the conduct, alleged against the applicant, constitute ‘misconduct’, it must be conduct that would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency. Secondly, to constitute ‘professional misconduct’, as alleged in the first charge brought by the Commissioner, the conduct of the applicant, as found by the Tribunal, must have been sufficiently closely connected with legal practice by the applicant, notwithstanding that it did not take place in the course of that practice.

Bearing those principles in mind, we turn to the grounds of appeal that the applicant seeks to rely on.

Ground 1

Ground 1 alleges that the judge erred by not providing adequate reasons in his judgment. In support of that ground, the applicant has contended that the judge’s reasons were deficient in a number of different respects.

The principles relating to the obligation of a judge, or judicial officer, to provide adequate reasons for a decision, are well established and are not in dispute. In essence, the reasons must be sufficient to enable the parties to understand the extent to which their arguments have been understood, and either accepted or rejected, and to understand the basis of the judge’s decision. In addition the reasons must be sufficient to enable an appeal court to ascertain the reasoning upon which the decision has been made.[41] However, that obligation does not require the judge to expressly deal with each and every argument that might have arisen in the course of the case. In Hunter v Transport Accident Commission & Anor,[42] Nettle JA (in an appeal arising out of an application under s 93(4)(d) of the Transport Accident Act 1986), stated:

… Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; … while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue.[43]

[41]See, eg, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279–80 (McHugh JA); Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18–19 (Gray J); Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639, 647 (Meagher JA).

[42][2005] VSCA 1.

[43]Ibid [21] (citations omitted).

The adequacy of the reasons must depend upon the issues, and the nature of the proceeding, in any particular case. In an appropriate case, the reasons may be adequate by a combination of what is expressly stated, in conjunction with the inferences that necessarily arise from what is expressly stated.[44] In Murray Goulburn Co-op Co Ltd v Fillipino,[45] Neave JA and Beach AJA stated:

In some cases, the path of reasoning which led to the ultimate conclusion is necessarily implicit in a sufficiently detailed recitation of the relevant material upon which the decision was based.[46]

[44]ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 [81].

[45][2012] VSCA 230.

[46]Ibid [28] (citations omitted).

In his written case, the applicant contends that the judge’s reasons were deficient in eight particular respects. It is necessary to deal with each of those points seriatim.

Before considering those points individually, it is important not to lose sight of the nature of the case sought to be made by the applicant before the judge. As we have already noted, he filed extensive and lengthy written submissions, raising a multiplicity of variegated points about the proceeding in the Tribunal. While, in such a case, a judge is not relieved from the obligation to provide adequate reasons for the decision, nevertheless the content of that obligation is necessarily shaped by the manner in which the case has been put to the judge.

The first point, relied on by the applicant, is that the judge in his reasons[47] stated that the Tribunal did not ignore the test of professional misconduct postulated by the Tribunal in its previous decision in Legal Services Commissioner v Piva,[48] but (according to the applicant) his Honour failed to explain how that test was satisfied by the Tribunal.
[47]Reasons [63].
[48][2009] VCAT 1200 (‘Piva’).

A proper reading of his Honour’s reasons reveals that there is no substance to that point. In his reasons, the judge referred, specifically, to Piva, and also to the decision of the New South Wales Court of Appeal in Cummins and the decision of the High Court in A Solicitor v Council of Law Society of New South Wales,[49] to which we have referred.[50] His Honour then dealt with the submission by the applicant that the Tribunal lacked jurisdiction, because (the applicant claimed) he had made the statutory declaration in his private and personal capacity. The judge referred to the submission, that the applicant had made to the Tribunal, that he should be found not guilty of professional misconduct, because the conduct alleged against him was not connected with legal practice, and therefore it did not fall within any of the three categories of cases identified by the Tribunal in its earlier decision in Piva.[51] The judge considered that the Tribunal’s finding against the applicant was plainly open to it, because the unchallenged evidence was that the applicant had made the statutory declaration in his capacity as a legal practitioner seeking the removal of the supervised legal practice condition from his practising certificate. Accordingly, the judge concluded that the conduct, alleged against the applicant, was capable of constituting professional misconduct by him.[52] It was on that basis that the judge, later in his reasons, concluded that the Tribunal had not ignored the test stated in Piva, and his Honour also concluded that the findings by the Tribunal were open to it on the evidence.[53]
[49](2004) 216 CLR 253.
[50]Reasons [9]–[11].
[51]Ibid [33].
[52]Ibid [36]–[38].
[53]Ibid [63].

In that way, the judge explained, in clear terms, how the Tribunal did conclude, and was entitled to conclude, that the conduct of the applicant was sufficiently connected with legal practice so as to constitute professional misconduct, in accordance with the principles stated in the cases, and the decision of the Tribunal in Piva.

In that respect, not only did the judge provide adequate reasons for his decision, but, those reasons were, in our view, unassailable. As correctly observed by the judge, the applicant had made the statutory declaration, in his capacity as a legal practitioner, in support of an application by him to remove a condition under which he was entitled, by his practising certificate, to practise as a solicitor in the State of Victoria. In accordance with the principles to which we have referred, it is beyond argument that those facts compelled the conclusion that the applicant’s conduct was sufficiently closely connected with legal practice by the applicant so as to constitute professional misconduct by him.

The second point, relied on by the applicant in support of ground 1, is that the judge rejected the applicant’s submission that his evidence, before the Tribunal, was ‘conceded’ by the witnesses called on behalf of the Commissioner, and accordingly his evidence was unchallenged. In his reasons, the judge did not accept that submission as a ‘fair reading of the evidence of the witnesses from Kabo Lawyers’.[54] His Honour noted that while some aspects of the applicant’s evidence were conceded by Mr Kabo and Ms Hoang, the burden of the evidence of those witnesses was directly contrary to that of the applicant in fundamental respects.
[54]Ibid [73].

The applicant submitted that the judge did not support that conclusion with any reasons. That is not correct. In fact, the passage in the reasons of the judgment, relied on by the applicant, was the concluding paragraph of that aspect of his Honour’s consideration of the point in issue. Earlier in his reasons, the judge had noted that the Tribunal had expressed preference for the evidence of Mr Kabo and Ms Hoang over the evidence of the applicant where it was in conflict, and that the Tribunal had made clear the reasons for that preference. The judge noted that the Tribunal had referred to the fact that the consistent evidence of Mr Kabo and Ms Hoang was supported by documentary evidence, whereas the applicant’s evidence was not supported by, but rather was undermined by, the evidence of other witnesses. The judge noted that the Tribunal took into account that the applicant did not obtain a practising certificate until February 2012, in determining the period during which the applicant performed his legal work. His Honour also noted that the Tribunal took into account the evidence of the witnesses from Kabo Lawyers about the nature of the work performed by the applicant. Finally, the judge noted that the Tribunal also relied on the ‘complete improbability’ of the applicant’s evidence about the hours that he worked. It was for those reasons that his Honour concluded that the Tribunal’s reasons provided adequate explanation for its findings.[55]
[55]Ibid [51].

In subsequent passages in his reasons, the judge noted that the evidence of Mr Kabo and Ms Hoang was ‘devastating’ to the applicant’s case as to the nature of the work that the applicant performed between 24 November 2011 and 24 February 2012, and as to the hours of supervised legal work undertaken by the applicant from 24 November 2011 to 10 July 2012.[56] It was in that context that the judge concluded that a ‘fair reading’ of the evidence of Mr Kabo and Ms Hoang contradicted the submission by the applicant that those witnesses had conceded the correctness of the evidence to be given by the applicant before the Tribunal.
[56]Ibid [70]–[71].

Further, the judge was perfectly correct in concluding that the evidence of Mr Kabo and Ms Hoang contradicted the critical aspects of the evidence of the applicant. In particular, both witnesses gave evidence that conflicted, entirely, with the evidence of the applicant that he had worked as a lawyer during the period 24 November 2011 to 24 February 2012, his evidence as to the hours of supervised legal work undertaken by him between 24 November 2011 and 10 July 2012, and his evidence that a substantial part of his work during that period had been involved in the development of precedents for Kabo Lawyers. Neither Mr Kabo nor Ms Hoang made any concession of the correctness of the applicant’s evidence in those critical respects. Rather, their evidence stood in complete contrast to the claims made by the applicant in those respects in his witness statement.

The third aspect of the judge’s reasons, complained of by the applicant, relates to the judge’s conclusion as to the penalty imposed by the Tribunal. The applicant contends that the judge failed to explain three matters, namely: the link between the offending and the conditions imposed by the Tribunal; how the penalty was not excessive or disproportionate in comparison with other ‘similar’ cases; or what the Tribunal did or did not take into account in mitigation of penalty.

There is no substance in any of those points. The judge noted that the conditions, imposed by the Tribunal, were ‘directly responsive’ to the circumstances of the offending, and to the applicant’s position as a young and inexperienced practitioner.[57] That explanation was sufficient to account for the conditions stipulated by the Tribunal. It is trite law that the question, whether a penalty is ‘manifestly excessive’, does not admit of detailed submission or analysis.[58] It was sufficient for the judge to point out that, bearing in mind that the applicant had made the statutory declaration to the Board in relation to his application for variation of the conditions contained in his practising certificate,[59] the penalty imposed by the Tribunal was not excessive or disproportionate. We should add that, in our view, his Honour’s conclusion in that regard is entirely correct. The offending, by the applicant, was serious. The penalty imposed by the Tribunal was, in all the circumstances, moderate, and by no means excessive. The conditions imposed were entirely appropriate for a lawyer who had not performed the required period of supervision and whose conduct and lack of insight demonstrated the need for guidance by an experienced principal.
[57]Ibid [78].
[58]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6], (Gleeson CJ, Hayne J).
[59]Reasons [78].

Further, contrary to the applicant’s submissions, the judge did address the matters that he contended the Tribunal had failed to take into account in mitigation of penalty. The judge specifically referred to the applicant’s inexperience. It was for that reason that the Tribunal had rejected the submission by the Commissioner that he should suspend the applicant’s practising certificate for a period of two years.[60] The judge also observed that the Tribunal’s reasons took that matter into account in mitigation. A plain reading of the Tribunal’s reasons supports that observation by the judge. The judge accepted the submission by the Commissioner that the cases, relied on by the applicant in relation to the principle of ‘parity’, turned on their own facts and are distinguishable. It was not necessary for the judge to rehearse the facts and circumstances of each of those ‘comparable’ decisions, and to distinguish them. In the context of disciplinary proceedings, in which issues of protection of the public and maintenance of the reputation of the legal profession are of foremost consideration, the circumstances of each case must necessarily differ. In that respect, it is significant that, in each of the cases relied on by the applicant, the practitioner in question had pleaded guilty to the charges. Such a plea is of some significance as it ordinarily connotes a degree of insight and recourse by the practitioner. By contrast, in this case, the applicant vigorously contested the charges and demonstrated a lack of insight as to his conduct. Thus, it is not surprising that the judge concluded that the cases relied on by the applicant were of little assistance in the instant case.
[60]Ibid [54].

The fourth point, relied on by the applicant in support of ground 1, is that the judge erred by ‘completely ignoring’ the decision of the Full Court of the Federal Court in Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority.[61] The applicant contended that that decision was fundamental to his submissions that the Tribunal lacked jurisdiction to hear the charges, and that it had failed to adhere to the principles of procedural fairness.
[61](2014) 218 FCR 461 (‘Today’).

That submission is without substance. The decision of the Full Court of the Federal Court in Today was not only distinguishable, it had also been overruled by the High Court.

The decision of the Full Court, in Today, concerned the jurisdiction of the Australian Communications and Media Authority (’the Authority’) to investigate whether, and to make a determination that, the appellant had breached a condition of its commercial radio broadcasting licence by committing a criminal offence for the purposes of cl 8(1)(g) of pt 4 of sch 2 of the Broadcasting Services Act 1992 (Cth). That clause provided that each commercial radio broadcasting licence was subject to a condition that the licensee would not use the broadcasting service or services ‘… in the commission of an offence against any other Act or a law of a State or Territory’. As a matter of statutory construction, the Full Court of the Federal Court held that pursuant to that provision, the authority was not authorised to investigate whether, or determine that, a licensee had used its broadcasting service or services in the commission of such an offence. In particular, the court held that the statutory provision did not confer on the authority a power to make an administrative determination or finding that a licensee had committed a criminal offence.[62] Pausing there, by contrast, s 4.4.3 of the Legal Profession Act was concerned with the phrase ‘professional misconduct’. It did not, by its terms, require the establishment of a criminal offence. In that way, the statutory provision under consideration in the present case was clearly distinguishable from the provision that was under consideration in the Today case.
[62]Ibid 477 [72], 478 [76], 486 [106] (Allsop CJ, Robertson and Griffiths JJ).

In my opinion, given the stance taken by the Commissioner and the principles stated by the High Court in Walsh, it is not open to this Court to proceed on the basis that the allegations made against Mr Pham by the Commissioner in the Tribunal included any allegation of dishonesty. In those circumstances, this Court is compelled to hold, in my opinion, that the Tribunal exceeded its jurisdiction in finding dishonesty against Mr Pham. For similar reasons, I consider that the Tribunal denied Mr Pham procedural fairness in that regard.

Hearing on penalty

In my view, Mr Pham is also entitled to succeed on the ground that the Tribunal wrongly required submissions on penalty to be made before the issues relating to liability had been determined.

I do not accept the Commissioner’s submission that, before the trial judge, Mr Pham abandoned his contention that he was not provided with a fair hearing as to penalty. The relevant part of the transcript of the hearing before the trial judge shows only that Mr Pham declined an opportunity offered to him by the trial judge to file an affidavit in support of a much narrower contention that Mr Pham had advanced. That contention was that the Tribunal member had said, at the conclusion of the hearing on the second day (for which there is no recording or transcript), that the parties would be returning on another day, on a date to be fixed. On that basis, Mr Pham told Bell J that he had believed that there would be a further hearing on penalty.[202] There were circumstances consistent with the reasonableness of Mr Pham’s asserted belief. Near the end of the first hearing day before the Tribunal, counsel for the Commissioner had suggested that the parties later file written submissions ‘in terms of the liability’.[203] Further, the authenticated form of the interlocutory order made by the Tribunal at the end of the second day (21 July 2014, wrongly dated as 17 July 2014) merely provided for the filing of ‘written submissions’, with no express mention of penalty. The order did not indicate that the decision had been reserved. To the contrary, it included, as paragraph 4: ‘Adjourned to a date to be fixed’. However, Bell J pointed out to Mr Pham (who, as mentioned above, was unrepresented) that the Commissioner disputed his contention as to what the Tribunal member had said at the end of the second day; and his Honour told Mr Pham that, if Mr Pham wished to pursue his contention, he would need to provide evidence, by affidavit, of the facts. After discussion, Mr Pham said to Bell J that he did not think that ‘that’ would bear on the ultimate outcome, and did not think it was ‘even necessary’.[204] Consistently, Bell J said, in this regard, only that a ‘contention that VCAT failed to provide Mr Pham with a promised opportunity to make submissions in relation to penalty was abandoned at the hearing of the application for judicial review’.[205] In any event, it has not been said, and could not be said, that, at VCAT, Mr Pham sought, or consented to, any arrangement for the delivery of submissions on penalty prior to the making of findings on liability.
[202]Transcript of hearing before Bell J on 17 September 2015, 8.
[203]Transcript of hearing before VCAT on 17 July 2014, 126:24.
[204]Transcript of Proceeding before Bell J, 17 September 2015, 10.
[205]Reasons [81] n 75.

Before the Trial Division, Mr Pham filed extensive submissions complaining about the omission of the Tribunal to make and publish liability findings before hearing submissions on penalty.[206] Those submissions relied principally on Battle v Bundagen Co-operative Ltd [No 2][207] and Smith v New South Wales Bar Association.[208]
[206]Mr Pham’s outline of submissions in the Trial Division dated 13 April 2015, at [159] and at [170]–[177], esp at [174](sub-paragraph (4))–[177].
[207][2011] NSWCA 38 (‘Battle’), esp at [64]–[66], where several other relevant cases are referred to.
[208](1992) 176 CLR 256.

As Mr Pham points out, the trial judge did not deal with this particular point, except by referring to what Mr Pham had said at the oral hearing before his Honour (in relation to the offer of time to file an affidavit). In fairness to his Honour, he was confronted with a very large and very confusing array of submissions and other documentary material put in by Mr Pham; and the present point was barely touched on in Mr Pham’s (ultimate) written submissions in reply, which themselves occupied, in total, 106 pages.[209]
[209]See Mr Pham’s written submissions to the Trial Division in reply dated 10 September 2015, [202]–[206], esp at [206]. The point was made only by cross-reference to Mr Pham’s earlier principal written submissions.

In Battle,[210] in the three paragraphs on which Mr Pham principally relied, Hodgson JA (with whom Campbell JA relevantly agreed) said:
[210][2011] NSWCA 38.

[64]The most substantial ground supporting denial of natural justice is that there was no separate finding of guilt, and thus that Mr Battle had no reasonable opportunity to address the meeting on penalty. Mr Doyle for Mr Battle submitted that it was established by Hall v New South Wales Trotting Club Ltd[211] that there must be a two-stage process, in which first the question of guilt is decided, and then there is a consideration of penalty in which the person found guilty has an opportunity to be heard; and that this principle had been applied in Forge v Australian Securities and Investment Commission.[212] In Malone v Marr,[213] Holland J applied Hall to a domestic tribunal, namely a committee of the North Sydney District Rugby League Football Club.
[211][1977] 1 NSWLR 378.
[212](2004) 52 ACSR 1 [418]–[425].
[213][1981] 2 NSWLR 894.
[65]However, I note that in McClelland v Burning Palms Surf Life Saving Club,[214] decided before Forge , Campbell J at [125] considered there was ‘no rule of law to the effect that it is not possible for there to be a single hearing which addresses both questions of guilt, and on a contingent basis, questions of penalty’, referring to Barnes v Australian Telecommunications Commission,[215] a decision of Spender J.
[66]I agree with Campbell J that there is no rule of law mandating a two-stage process in all circumstances. In cases like Hall and Forge , where there are both a substantial number of different findings on guilt that could be made, and also a considerable range of consequential penalties that could be imposed, it is generally the case that natural justice does require first a determination of what findings are made on guilt, and second an opportunity to be heard concerning the range of possible penalties. Otherwise, it is not possible for submissions concerning penalty to be appropriately focussed. However, in my opinion, if for example there were only two possibilities on guilt, that is, either guilty or not guilty on one charge, then it could be that submissions concerning penalty could be appropriately focussed in a single-stage hearing. And where, as in this case, there are only two possible results on ‘penalty’, that is, expulsion or non-expulsion, again it may be that submissions concerning penalty could be sufficiently focussed in a single-stage hearing.

In the same case, Sackville AJA detected in the rules of the Co-operative an obligation to conduct a two stage hearing process. However, his Honour went on to say that, if that were not the correct construction of the rules, then he would have accepted Mr Battle’s argument that he was denied a reasonable opportunity to be heard in the circumstances of the particular case. Sackville AJA said:[216]

It is difficult to understand, in a case where the allegations involve a large number of possible combinations and permutations of detrimental conduct, how Mr Battle could have had a reasonable opportunity to argue against expulsion when he never knew the precise case he had to meet on that issue.

[214][2002] NSWSC 470.

[215](1989) 25 FCR 283, 290–291.

[216]Battle [2011] NSWCA 38 [95].

Relying in part on the cases and judicial observations referred to in paragraph 65 of the judgment of Hodgson JA in Battle, the Commissioner submits that there is no absolute rule of law to the effect that it is not possible to have a single hearing which addresses both questions of guilt, and on a contingent basis, questions of penalty. Words to that effect were used by Campbell J in McClelland v Burning Palms Surf Life Saving Club.[217] However, by the time of Battle, Campbell J had become Campbell JA and, as mentioned above, he expressed agreement with the judgment of Hodgson JA in relevant respects. Hodgson JA, in turn, said that where there are both a substantial number of different findings on guilt that could be made, and also a considerable range of consequential penalties that could be imposed, it is ‘generally’ the case that natural justice does require first a determination of what findings are made on guilt, and second an opportunity to be heard concerning the range of possible penalties. In my view, the present is a case of that kind.
[217](2002) 191 ALR 759 [125] (‘McClelland’).

As to Barnes v Australian Telecommunications Commission,[218] what was said by Spender J in this regard was not necessary to the decision. His Honour set aside the decision objected to by Mr Barnes on the basis of a separate denial of natural justice.
[218](1989) 25 FCR 283, 290–291 (‘Barnes’).

The Commissioner also relies on Rush v WA Amateur Football League (Inc).[219] That was a case relating to a domestic tribunal. It was a tribunal with power to deal with participants in the WA Amateur Football League. The plaintiff was unsuccessful in challenging a certain decision made by an investigation tribunal of the football league. The principal ground for refusing relief to the plaintiff was that the arrangements between the parties were held not to give rise to legally enforceable contractual relations. Pullin JA also expressed the view that it is not always necessary for a domestic tribunal to have a separate hearing to deal with issues of penalty. His Honour preferred to say that there must be adequate opportunity to address the question of penalty. His Honour considered that there had been adequate opportunity in the instant case. Buss JA agreed with Pullin JA on this point. He emphasised that the requirements of procedural fairness depend upon the circumstances of the particular case.[220] His Honour followed Barnes in this regard. Wheeler JA expressed her agreement with Pullin JA. In my view, Rush, being a case relating to a domestic tribunal, may be of less assistance than Battle and certain other cases to which I shall shortly refer in relation to what may be required in the context of statutory tribunals with jurisdiction to discipline professionals. On the other hand, I recognise that Barnes, McClelland and Rush were followed in the context of a discipline application under the Legal Profession Act 2007 (Qld) in Puryer v Legal Services Commissioner.[221] However, with respect, I consider that in Puryer[222] the Court misinterpreted and misapplied what had been said in Legal Services Commissioner v Madden.[223] In Madden, a case in which, before the Tribunal, professional misconduct had been conceded by the practitioner but dishonesty had not been alleged by the Commissioner as to liability or penalty, the Court of Appeal rejected an argument put by the Commissioner on the appeal to the effect that it had been open to the Tribunal to reject the Commissioner’s stance and to make a finding of dishonesty of its own. The Commissioner had tried to support this argument by an analogy with criminal cases, in which, for sentencing purposes, the Court may make its own findings of fact at the sentencing stage. The Court of Appeal rejected this analogy, saying that the Queensland equivalent of s 4.4.16 of the (Victorian) Act does not envisage the ‘two-step process’ contemplated by the argument. In my view, given that context, the Court of Appeal in Madden should not be taken to have meant that the effect of the relevant section was that a separate hearing on penalty was not required even when fairness would call for one, whereas Puryer seems to have proceeded on just such a reading of Madden.
[219](2007) 35 WAR 101 (‘Rush’).
[220]Ibid [123].
[221][2012] QCA 300 (‘Puryer’).
[222]Ibid [35].
[223][2009] 1 Qd R 149, 180 [89]–[91].

In any event, in my opinion, the weight of authority at intermediate appellate level — especially recent authority — favours the statement made by Murrell CJ in 2014 in Legal Practitioner v Council of the Law Society of the ACT [No 2],[224] namely:
[224][2014] ACTSC 352 [130].

In any event, as a general proposition, a professional person should not be required to formulate submissions about appropriate penalty orders until the disciplinary tribunal has determined whether and in what respects the person’s conduct constituted professional misconduct: Lucire v Health Care Complaints Commission;[225] King v Health Care Complaints Commission.[226]
[225][2011] NSWCA 99 [65] (Basten JA) (‘Lucire’).
[226][2011] NSWCA 353 (‘King’).

In my view, the decisions of the Court of Appeal of New South Wales in Lucire and King, to which Murrell CJ referred, amply bear out her Honour’s general proposition. In King, an appeal against a decision of a medical tribunal on a point of law, Handley JA (with whom McColl JA agreed) said:[227]
[227]Ibid [203]–[205].

[203]The need for a second sentencing stage is an accepted feature of the criminal process. In Forge v ASIC[228] this court applied the principle to proceedings for civil penalties against directors which could involve disqualification. In Hall v New South Wales Trotting Club Ltd[229] the principle was applied to proceedings in a domestic tribunal involving possible expulsion from a voluntary association. In that case Hutley JA said at p 382:
[228](2004) 213 ALR 514 [417]–[427].
[229][1977] 1 NSWLR 378.
…a person found guilty cannot really address until he knows of what he has been found guilty.

[204]In Lucire[230] Basten JA, giving the principal judgment, said that the practitioner:
…should not have been required to address submissions to the Tribunal on the appropriate orders until the Tribunal had determined whether and in what respects her conduct constituted professional misconduct.

[205]In my judgment this ground of appeal succeeds, and the orders of the Tribunal should be set aside. …

[230][2011] NSWCA 99 [65].

In another case decided in 2014, Bryant v Hawkesbury Radio Communication Co-operative Society Ltd,[231] Sackar J of the New South Wales Supreme Court said:

In cases like Hall and Forge v ASIC,[232] where different results on penalty might flow from which particular charges are made out, it may well be that a two stage process is mandatory. If there is a range of allegations (some of which may involve say dishonesty, others raising no higher than reckless behaviour), it is obvious that very different penalties may flow.

[231][2014] NSWSC 848 [65] (emphasis added). See also Council of the Law Society of New South Wales v Liepins [No 2] [2015] NSWCATOD 133 [42]–[47] (M Chesterman, Principal Member).

[232](2004) 52 ACSR 1.

It is true that Mr Pham had included some submissions relating to penalty in his undated post-hearing written submission to VCAT. However, in the introduction to that submission, Mr Pham indicated that, in the relevant section (Part F), he would ‘briefly’ make submissions regarding the penalty sought by the Commissioner. He continued: ‘These will only be brief submissions, further and more detailed submissions regarding penalty can be prepared and submitted at a later time (if required)’.[233]
[233]Again, this reservation is consistent with Mr Pham having actually held the belief that there would be a further hearing as to penalty, whatever may have been said orally by the Tribunal at the end of the hearing. I note that English is not Mr Pham’s first language.

Whatever other submissions Mr Pham might have been minded to add at a later stage, Part F of his actual submission to VCAT was fairly detailed. It occupied five pages (12 paragraphs). However, the submissions involved acute awkwardness of the very kind which, as the authorities recognise,[234] will generally be involved where the person concerned is making a submission on penalty before liability has been decided. For example, the submissions commence with an express assumption that the Commissioner’s charges will be made out. But then follows speculation that, in those circumstances, the Tribunal would be likely to have found, merely, that Mr Pham ‘ought to have known’ that the contents of the statutory declaration was false. The submission eschews a scenario involving a finding that Mr Pham intentionally (with actual knowledge) made a false statement (‘given the fact that the [Commissioner] also accepts that [Mr Pham] may well have had an honest belief’). The remaining parts of the submission are made on that basis, exclusively. Various decided cases are distinguished on the ground that they involved intentionally swearing false affidavits. It is submitted by Mr Pham that the relevant conduct, on the assumptions made, would not amount to misconduct at all, much less professional misconduct as defined.
[234]See above.

Mr Pham can hardly be blamed for taking that approach. He had been put in a most invidious position by the inclusion of submissions on penalty in the Commissioner’s written submission. He should not have been called upon to address the topic of mitigation with respect to an assumed finding that he had intentionally or deliberately made a false statutory declaration. Such a finding would have been a finding of dishonesty, devastating for a legal practitioner. Yet the Commissioner has maintained at all times that no allegation of dishonesty was involved. The injustice to Mr Pham is manifest.

I do not consider that the case against Mr Pham was so confined that Battle (and cognate cases) may be distinguished on that basis. I have already dealt with the fraught issue of how the case against Mr Pham should be characterised. Whether or not dishonesty should be taken to have been alleged by the Commissioner, there were several possible permutations and combinations of findings on liability that might have emerged. Moreover, the Act provides (non-exhaustively) for a number of different types of order that might be appropriate after a finding of guilt is made.

Accordingly, I would uphold Mr Pham’s contention that he was denied procedural fairness as a result of the omission on the part of the Tribunal to hold separate hearings as to liability and penalty.

Other grounds

Since, in my view, it is necessary for the Commissioner’s application against Mr Pham to be reheard and redetermined in accordance with law, it is undesirable that I express any views on the contention by Mr Pham that the decision of the Tribunal was not reasonably open on the facts and the evidence before the Tribunal.[235] Otherwise, I am in substantial agreement with the reasons for judgment of the majority. I agree with the majority that none of the other grounds or arguments raised by Mr Pham would warrant a grant of leave to appeal.
[235]See King [2011] NSWCA 353 [107] (Macfarlan JA, dissenting, but not this point).

Relief

I have considered whether, notwithstanding that I would uphold two of the points raised by Mr Pham as indicated above, relief should nevertheless be refused in all the circumstances. However, in the end, I have come to the view that it would not be appropriate to withhold relief. It is not for this Court to concern itself with what might have occurred before the Tribunal if the Commissioner’s case had been put in a different way and if procedural fairness had been observed. In Minister for Immigration and Border Protection v WZARH,[236] Gageler and Gordon JJ said:

Where…the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.[237]

In my view, those observations are applicable in this case.[238] The Commissioner made no submission to the contrary. Indeed, the Commissioner impliedly conceded in several places in his various written submissions that Mr Pham had had no real opportunity at all to make submissions on penalty on the footing that dishonesty had been alleged and found.

[236](2015) 256 CLR 326, 342–343 [60]. See also Stead v State Government Insurance Commission (1986) 161 CLR 141.

[237]Citing WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511, 525 [58].

[238]See also Walsh (1999) 198 CLR 73, 101 [76]; Legal Services Commissioner v Madden [2009] 1 Qd R 149, 178 [82].

The Tribunal expressed firm views about facts that would need to be reconsidered on a rehearing. In those circumstances, it would be inappropriate for the same Tribunal member to reassess de novo the practitioner’s truthfulness.[239]
[239]Smith v New South Wales Bar Association (1992) 176 CLR 256 269 (Brennan, Dawson, Toohey and Gaudron JJ); Legal Practitioner v Council of the Law Society of the ACT [No 2] [2014] ACTSC 352 [152] (Murrell CJ); Kapoor v Monash University (2011) 4 VR 483 [51].

Of course, on a rehearing or any fresh hearing, the Tribunal would not be constrained legally by the order it made originally. Thus, success for Mr Pham on the grounds which I would uphold would involve a risk of double jeopardy.[240] On the other hand, it would be a matter for the Commissioner to determine in the exercise of his discretion whether to seek to present a different case in future; and the fate of any application to amend would be a matter for the Tribunal.[241] On any rehearing or fresh hearing, it would be highly desirable, in my view, if Mr Pham were able to be legally represented.[242]
[240]King [2011] NSWCA 353 [208] (Handley AJA, with whom McColl JA agreed).
[241]Legal Services Commissioner v Madden [2009] 1 Qd R 149, 184 [113] and 178–180 [83]–[88]; Walsh (1999) 198 CLR 73, 98–99 [70] (McHugh, Kirby and Callinan JJ).
[242]See the observations of the trial judge (Bell J) in this connection: Reasons [20].

Costs

If my views had prevailed in this matter, I would have invited further submissions from the parties as to the costs of the proceeding below and as to the costs of the proceeding in this Court.

Form of order

For the reasons set out above, I would order that:

(1) The application for leave to appeal be granted.

(2) The appeal be heard instanter and allowed.

(3) The decision made by the Victorian Civil and Administrative Tribunal on 22 December 2014 be set aside.

(4) The application dated 18 December 2013 made by the respondent, the Legal Services Commissioner, be remitted to the Tribunal, differently constituted, for rehearing and redetermination according to law.

(5) The costs of the proceeding below, and of the application and appeal, be reserved for further submissions.

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[2016] VSCA 256

25 October 2016