Pham v Legal Services Commissioner
[2015] VSC 671
•27 November 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 00034
| QUAN PHAM | Appellant |
| v | |
| LEGAL SERVICES COMMISSIONER | Respondent |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2015 |
DATE OF JUDGMENT: | 27 November 2015 |
CASE MAY BE CITED AS: | Pham v Legal Services Commissioner |
MEDIUM NEUTRAL CITATION: | [2015] VSC 671 |
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LEGAL PRACTITIONERS – appeal – orders of Victorian Civil and Administrative Tribunal suspending practising certificate and imposing penalty conditions – whether leave to appeal should be granted – whether error of law – finding that practitioner had knowingly made statutory declaration containing false statements – whether open on the evidence – application of principle that findings must be supported by ‘some’ evidence and be ‘reasonably’ open – professional misconduct at common law – whether extends to conduct of practitioner in that capacity but outside the course of legal work – whether charge of knowingly making a statutory declaration with false contents was a charge of criminal perjury – whether VCAT had jurisdiction to determine that charge – whether dishonesty is an essential element thereof or knowledge of falsity is sufficient – whether VCAT’s reasons for decision were adequate – whether every matter in issue had to be addressed – whether procedural fairness breached – whether penalty disproportionate to findings and contrary to parity principle – ‘professional misconduct’ - Victorian Civil and Administrative Act 1998 (Vic) s 148(1), LegalProfession Act 2004 (Vic) ss 4.4.3(1), 4.4.16, 4.4.17
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APPEARANCES: | Counsel | Solicitors |
| For the appellant | In person | |
| For the respondent | Ms R Sharp | Legal Services Commissioner |
HIS HONOUR:
Quan Pham, a young and inexperienced lawyer, made a statutory declaration in support of his application to the Legal Services Board for a variation of the conditions of his practising certificate. Alleging that Mr Pham made the declaration when he knew or ought to have known that its contents were false, the Legal Services Commissioner brought charges against him under the Legal Profession Act 2004 (Vic). After hearing the evidence, the Victorian Civil and Administrative Tribunal (‘VCAT’) determined that Mr Pham was guilty of professional misconduct at common law in that he had knowingly made a statutory declaration containing false statements. It suspended his practising certificate for a period and imposed other penalties. From that finding and those penalties, Mr Pham appeals to this court on grounds of error of law.
Charges brought against Mr Pham
Mr Pham had a practising certificate with a supervised legal practice condition. He was not eligible for a full practising certificate under which he could practice without supervision until he had completed two years of supervised legal practice.[1] His application for variation was for a full practising certificate. His supporting statutory declaration stated (among other things) that, in about seven months, he had completed legal work constituting two years’ worth of supervised practice.
[1]Legal Profession Act 2004 (Vic) s 2.4.18(1)(b); Legal Profession Regulations 2005 (Vic) r 2.4.2.
The Commission brought two charges against Mr Pham. They were specified in its application to VCAT in the following terms:
CHARGE 1
You are guilty of professional misconduct within the meaning of section 4.4.3(1) of the Act, 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 section 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.
…
Particulars of these charges were given in the application. Neither the charges nor the particulars alleged dishonesty.
As material, Mr Pham’s statutory declaration, including the footnotes, stated:
6.I was employed at Kabo Lawyers as a Solicitor between the dates 24 November 2011 and 10 July 2012.[2] During this period:
[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.
(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]
[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.
(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.
7.Based on Paragraph 6(a) I believe I have completed my supervised period (520) days), in total I have completed 535 days.[5] I ask that the supervised legal practice condition be removed from my Practising Certificate.
[5]164 days + 33 days + 328 days +10 days (unused leave) = 535 days.
As can be seen, upon the basis that he had performed legal work as an employee solicitor with Kabo Lawyers for 17.5 hours per week and for seven days per week for some seven months, Mr Pham contended that he had satisfied the statutory requirement of supervised legal practice for two years. It was a contention that positively invited scrutiny.
The Board rejected Mr Pham’s application and referred the matter to the Commissioner. After carrying out an investigation, the Commissioner brought an application in VCAT under s 4.4.13(2) of the Legal Profession Act for disciplinary orders alleging that he had been guilty of professional misconduct as specified in the two charges.
Professional misconduct
Section 4.4.3(1) of the Legal Profession Act defines ‘professional misconduct’ to include:
(a) unsatisfactory professional conduct[6] of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
[6]The expression ‘unsatisfactory professional conduct’ is defined in s 4.4.2 to include:
Because it is inclusive, the definition of professional misconduct in s 4.4.3(1) preserves the applicability under the Legal Profession Act of professional misconduct at common law, whether in connection with the practice of law or otherwise than in that connection.
The statement made by Lopes LJ in Allinson v General Council of Medical Education and Registration[7] as to what constitutes ‘infamous conduct in a professional respect’ (a statutory concept applying to medical doctors) has come to be regarded as an inclusive definition of what constitutes professional misconduct at common law. His Lordship stated that such conduct would be established where
[7][1894] 1 QB 750 (‘Allinson’).
it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.[8]
[8]Ibid 763.
In Myers v Elman,[9] Viscount Maugham adopted this concept of misconduct in the context of the inherent jurisdiction of the court to strike off or suspend a solicitor. Viscount Maugham stated that such a penalty could be imposed
on the ground of professional misconduct, words which have been properly defined as conduct which would reasonably be regarded a disgraceful or dishonourable by solicitors of good repute and competency …[10]
Notably, Viscount Maugham did not qualify this statement by including the words ‘in the pursuit of his profession’. As now established by the authorities analysed by VCAT in Legal Services Commission v Piva,[11] the concept of misconduct at common law in relation to the legal profession ‘extends to conduct which does not directly occur in the course of professional practice’.[12]
[9][1940] AC 282.
[10]Ibid 288-9, citing In re a Solicitor; Ex parte The Law Society [1912] 1 KB 302.
[11][2009] VCAT 1200 (22 July 2009) [88]-[93] (Judge IJK Ross, Vice President, Members Page and Shattock agreeing) (‘Piva’).
[12]Ibid [93], citing Re Hodgekiss [1962] SR(NSW) 340, 351 (Hardie J), Re Mayes and the Legal Practitioners Act [1974] 1 NSWLR 19, 24-5 (Reynolds and Hutley JJA) and NSW Bar Association v Cummins (2001) 52 NSWLR 279 (Spigelman CJ, Mason P and Handley JA agreeing) (‘Cummins’).
An important case in this connection is NSW Bar Association v Cummins.[13] In relation to such terminology as ‘professional misconduct’, ‘fit and proper person’, ‘good fame and character’, ‘unprofessional conduct’ and ‘unsatisfactory conduct’, Spigelman CJ (Mason P and Handley JA agreeing) stated that it was ‘not appropriate that the Court should indulge in the splitting of fine hairs’.[14] The Chief Justice was speaking of the inherent jurisdiction of the court which is based on the concept of professional misconduct at common law. Of that concept, his Honour went on to say:
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’.[15]
This statement of the law was approved in A Solicitor v Law Society (NSW),[16] in which Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ said that ‘[t]he dividing line between personal misconduct and professional misconduct if often unclear’.[17]
[13](2001) 52 NSWLR 279.
[14]Ibid 288-9 [50].
[15]Ibid 289 [56].
[16](2004) 216 CLR 253, 267 [20].
[17]Ibid.
By its express terms, the definition of professional misconduct in s 4.4.3(1)(b) creates a statutory concept of professional misconduct, one that also applies in connection with the practice of law or otherwise than in that connection. By this part of the definition, professional misconduct is conduct that, if established, would justify a finding that the practitioner was not a fit and proper person to be engaging in legal practice.
As can be seen, in the present case charge 1 alleged common law professional misconduct within s 4.4.3(1) and charge 2 alleged statutory professional misconduct within s 4.3.3(1)(b).
Determination and reasons for decision of VCAT
After hearing evidence over two days and subsequently receiving submissions from the parties, VCAT found that Mr Pham had been guilty of professional misconduct at common law by knowingly making a statutory declaration with false contents. It determined that charge 1 was established and (in consequence) it dismissed charge 2. These findings were made upon the basis of evidence given by Mr Pham’s employer (Kabo Lawyers) that Mr Pham had not worked for the length of time (as a lawyer) and for the number of hours that he stated in the statutory declaration. In this respect, VCAT preferred the evidence given by the employer to the evidence given by Mr Pham.
VCAT provided written reasons for decision in which it set out the two charges and Mr Pham’s statutory declaration (in full), including the annexed letter of his employer dated 6 August 2012 stating that he had worked full-time as a solicitor from 24 November 2011 until 10 July 2012. After referring to the evidence given at the hearing, VCAT specified certain critical propositions that the Commissioner had to prove to the appropriate standard[18] in order to establish that Mr Pham had been guilty of professional misconduct. Those propositions were:
[18]In this regard, VCAT correctly referred to Briginshaw v Briginshaw (1938) 60 CLR 336, 361-2 (Dixon J).
(a) The respondent was not employed as a solicitor for the entire period 24 November 2011 to 10 July 2012 (Issue 1).
(b) The respondent 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 (Issue 2).
(c) The respondent did not work for 17.5 hours per day, seven days per week for the period 24 November 2011 to 10 July 2012 (Issue 3).
(d) The respondent knew that he did not work for 17.5 hours per day, seven days per week for the period 24 November 2011 to 10 July 2012 (Issue 4).
VCAT also set out certain factual matters that were not in dispute. Those matters were:
(a) On 24 November 2011, the respondent began an association with Kabo Lawyers.
(b) When he began at Kabo Lawyers, the respondent did not hold a practising certificate.
(c) On 16 February 2012, the respondent was issued with his first practising certificate. It authorised him to engage in legal practice as an employee solicitor, and included a condition that he perform two years’ worth of supervised legal practice.
(d) On 10 July 2012, the respondent ceased his association with Kabo Lawyers.
(e) On 6 August 2012, Mr Kabo signed [a letter stating that Mr Pham had worked as a full-time solicitor from 24 November 2011 to 10 July 2012].
(f) On 7 August 2012, the respondent made [the] statutory declaration …
(g) On 7 August 2012, the respondent submitted an application to the Legal Services Board to have the supervised legal practice condition removed from his practising certificate, relying on the statutory declaration as evidence of two years’ worth of supervised legal practice.
(h) On 1 October 2012, the Law Institute of Victoria formally refused the respondent’s application to have the supervised legal practice condition removed from his practising certificate.
In the reasons for decision, VCAT addressed each of the critical propositions. In doing so, it referred to the relevant evidence.
In relation to proposition (a), VCAT referred to the statement in para 6 of the statutory declaration that ‘I was employed at Kabo Lawyers as a solicitor between the dates 24 November 2011 and 10 July 2012’. On the evidence, VCAT found this statement to be false. It noted that Mr Pham was not issued with a practising certificate until 16 February 2012 and found that, up to 27 February 2012, he had been employed as a sub-contractor to assist with administrative duties. Therefore he was not employed as a solicitor and did not perform legal work. In this connection, VCAT referred to Mr Pham’s contract of employment as a solicitor, which was dated 27 February 2012 and nominated that as the commencement date, and the evidence of Mr Kabo, which explained why he had incorrectly stated in the letter of 6 August 2012 that Mr Pham had been employed as a solicitor from 24 November 2011 until 10 July 2012. VCAT concluded that Mr Pham was not employed as a solicitor during the ‘entire period 24 November 2011 to 10 July 2012’. It based this conclusion on the ‘nature of the work’ that he performed during this period and his lack of a practicing certificate for the first three months.
In relation to proposition (b), VCAT found that Mr Pham knew that he was not permitted to engage in supervised legal practice prior to 27 February 2012 because he was not an employee solicitor (but rather was a sub-contractor administrative assistant) and did not hold a practising certificate.
In relation to proposition (c), VCAT referred to the evidence of Mr Pham’s employer, which was that the volume of work at the Springvale office of the firm (where Mr Pham was employed) was very small. It referred to the evidence that no substantial overflow work came from the city office. It also referred to Mr Pham’s evidence about the nature of the work and the hours of work that he performed and noted that this evidence was not supported by the evidence of his employer. It found the statement that Mr Pham had worked such long hours to be a ‘complete improbability’ and that he did not do so.
In relation to propostion (d), VCAT found that the hours that Mr Pham worked, and the nature of that work, were entirely within his knowledge. It found that the statements made in the statutory declaration about the hours of his work as a solicitor were ‘a construct in order to satisfy the two years worth of supervised legal practice requirement’. It went on to make an express finding that Mr Pham had made a statutory declaration that he ‘knew to be false’ and that he was guilty of ‘professional misconduct at common law’. In full, VCAT’s finding in this regard was:
29I 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 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.
30The respondent is found guilty of professional misconduct at common law as alleged in charge 1.
By way of penalty, VCAT made the following orders (on 22 December 2014):
1The respondent’s practising certificate is suspended until 30 June 2015.
2Upon return to practise, the respondent’s practising certificate is to be subject to the following conditions:
(a)The respondent is authorised to engage in legal practice as an employee only until the completion of a further 24 calendar month of supervised legal practice.
(b)The supervision of the respondent’s work during the period of supervised legal practice is to be undertaken by a legal practitioner who:
(i)is a principal of the firm which employs the respondent; and
(ii)works on a full time basis in the same office location as the respondent.
3The respondent is to complete an extra two CPD points in ethics prior to 30 June 2015 and is to provide the Legal Services Board with evidence of completion.
4The respondent is to pay the applicant’s costs of this proceeding on County Court Scale, failing agreement to be assessed by the Costs Court.
It is from these orders that Mr Pham has appealed. By order of this court (dated 19 January 2015), the orders of VCAT were stayed pending the hearing and determination of the application for leave to appeal. A practical effect of this stay is that Mr Pham has served about one month, but no more, of the period of suspension specified in para 1 of VCAT’s order.
Grounds of appeal
Under s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), appeals may be brought on questions of law where the court gives leave to appeal. [19] Mr Pham has made application for that leave. Pursuant to r 4.14(3) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic), the court has ordered that the application for leave to appeal should be heard and determined at the same time as the appeal. In this judgment, I will therefore determine both the application for leave to appeal and the appeal.
[19]The approach taken to considering applications for leave was set out in Secretary to Department of Premier and Cabinet v Hulls [1993] 3 VR 331, 335-6 (Phillips JA, Tadgell and Batt JJA agreeing) and summarised in Myers v Medical Practitioners’ Board (2007) 18 VR 48, 55-6 [28] (Warren CJ, Chernov JA and Bell AJA agreeing).
The questions of law are specified in the notice of appeal (dated 10 September 2015) as follows:
1.The Member was wrong in finding that the Tribunal had jurisdiction to conduct the VCAT proceeding …
2.The Member provided inadequate reasoning (and for the most part, not at all) in his decision of 22 December 2014.
3.The Member’s findings were not open to him from the available evidence and at law.
4.In conducting the VCAT proceeding … the Member breached procedural fairness requirements.
The notice of appeal goes on the specify the grounds of appeal by reference to those questions, under these headings:
(1) no jurisdiction
(2) inadequate reasoning
(3) finding not open
(4) breach of procedural fairness
The particular grounds of appeal are developed, in some cases in great detail, under those headings.
Pursuant to orders of the court, the parties have provided written submissions in relation to the issues raised in the appeal. Mr Pham’s submissions number 108 pages and 194 paragraphs. The Commission’s submissions number 25 pages and 159 paragraphs. Mr Pham’s submissions in reply number 106 pages and 251 paragraphs. Under the heading of the specific grounds of appeal, Mr Pham’s submissions raise, and the Commissioner’s submissions reply to, a number of other matters. At the hearing of the appeal, the parties adopted their written submissions without making any significant supplementary submissions.
Mr Pham represented himself, both in the proceedings in VCAT and in this court. Persons who represent themselves in legal proceedings typically have two disadvantages: lack of legal expertise and lack of objectivity.[20] Mr Pham is a qualified lawyer. Therefore he does not lack legal expertise, although he is young and inexperienced. His personal interests are greatly engaged by the proceeding in the court, as they were in the proceeding before VCAT. I take this into account when assessing his submissions, many of which lacked objectivity and were quite unrealistic.
[20]Tomasevic v Travaglini (2007) 17 VR 100, 116 [81]-[82] (Bell J).
I need specifically to refer to his primary and reply submissions in this court alleging intentional improper conduct or decision-making on the part of the Commissioner and VCAT. There is not a scintilla of evidence supporting these allegations. Even taking Mr Pham’s inexperience into account, these allegations are scandalous and ought never to have been made and, further, should have been struck out. I reject these allegations entirely. I also reject any suggestion that the Commissioner has not participated in the proceeding as a Model Litigant should. I will focus hereafter on the grounds of appeal excluding those allegations.
(1) Did VCAT have jurisdiction?
The first ground of appeal (paras 1(A)-(B) and 1.1) is that VCAT did not have jurisdiction to hear and determine the charges.
It was submitted by Mr Pham that the disciplinary charges were based on allegations that he had knowingly made a false statutory declaration. Therefore the charges were that he had committed the criminal offence of perjury contrary to s 314(3) of the Crimes Act 1958 (Vic) or the common law. Relying upon certain authorities, he contended that VCAT had no jurisdiction to enquire into and determine whether or not a person had committed a criminal offence. There was no foundation in the provisions of the Legal Profession Act for such an inquiry and determination. To find him guilty of professional misconduct on the basis of the commission of a crime, an authorised certificate of conviction from a court of competent jurisdiction was required. Mr Pham made the same submissions to VCAT which, in a preliminary ruling at the commencement of the hearing, were rejected.
This ground of appeal must be rejected. The alleged conduct of lawyers may give rise to both criminal consequences and disciplinary consequences. Any criminal charges are for the courts to determine and any disciplinary charges are for VCAT to determine. Where the alleged conduct may amount both to a criminal offence and professional misconduct, it is for the prosecuting authority to determine whether to bring any criminal charges in a court and it is for the Commissioner to determine whether to bring disciplinary charges in VCAT. As was held in Law Institute of Victoria v Frugtniet,[21] the Commissioner does not have to see to the exhaustion of any criminal processes in the courts before bringing disciplinary charges in VCAT.[22]
[21][2011] VCAT 596 (8 April 2011) [18] (Judge Jenkins, Vice President).
[22]Where both disciplinary charges and criminal charges are laid, the disciplinary proceeding in VCAT will have to be managed so as not to prejudice the criminal proceeding in the court and may have to be adjourned pending the outcome of that proceeding.
But, disciplinary charges in VCAT must be properly formulated.[23] In the present case, appropriately, the charges were not formulated in terms that required VCAT to investigate whether Mr Pham had committed a criminal offence. It conducted no such investigation. Under s 4.4.13(2) of Legal Profession Act, Mr Pham was charged with two counts of professional misconduct upon the basis that he had made a statutory declaration that he knew or ought to have known was false. Under s 4.4.15, VCAT was obliged to hear and determine those charges, which it did. Under s 4.4.16, it had jurisdiction to impose orders by way of penalty, which it also did. I reject Mr Pham’s submission that the Commissioner cannot bring a charge of professional misconduct in VCAT upon the basis of alleged facts that might form the basis of charges of a criminal nature brought in a court. VCAT correctly so decided in the preliminary ruling. I also reject Mr Pham’s submission that, because the alleged conduct was capable of being characterised as criminal, it was incapable of being characterised as professional misconduct. It was not necessary for the Commission to proceed on the basis of an official certificate of conviction. That was not the nature of the charges brought.
[23]See Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 (16 December 2005) [30] (Petty ACJ, Duggan and Anderson JJ agreeing).
Mr Pham also submitted that VCAT lacked jurisdiction because he made the statutory declaration in his private and personal capacity and not in his public and professional capacity as a lawyer. In his submission, it was not open to VCAT to find that this conduct amounted to professional misconduct. This submission must also be rejected.
On this subject, the submission of the Commissioner to VCAT was that Mr Pham should be found guilty of professional misconduct because he had knowingly made a false declaration, which was a breach of his professional duties in relation to the content of declarations. He relied upon a number of authorities, including Legal Services Commissioner v Adamakis.[24] That too was a case involving a legal practitioner making a false affidavit in relation to a request for the removal of a supervised legal practice condition from a practising certificate. In relation to charge 1, the Commissioner did not contend that Mr Pham made the declaration in the course of his legal work.
[24][2013] VCAT 1736 (16 September 2013) (Member E Wentworth).
The Commissioner also contended that Mr Pham should be found guilty of charge 2. He submitted that Mr Pham made the statutory declaration in connection with the practice of law. He relied upon a number of authorities, including Cummins[25] which, as we have seen, established that private misconduct closely connected with the practice of law could be professional misconduct.
[25](2002) 52 NSWLR 279, 289 [56] (Spigelman CJ, Mason P and Handley JA agreeing).
Mr Pham submitted to VCAT that he should not be found guilty of professional misconduct because the alleged conduct was ‘not connected with legal practice in any way or form’. He prepared the statutory declaration and submitted it to the Board in a wholly private capacity. The present case came within none of the three categories identified in Piva[26] relating to when private misconduct might constitute professional misconduct.
[26][2009] VCAT 1200 (22 July 2009) [98] ff (Judge IJK Ross, Vice President, Members Page and Shattock agreeing).
In the passage I have already set out, VCAT concluded that Mr Pham made the statutory declaration knowing the statements in it to be false. It found that Mr Pham had thereby breached the duty of honesty, candour and diligence expected of practitioners in relation to documents. It said that a false declaration by a ‘legal practitioner’ was professional misconduct and misconduct at common law because it ‘would be reasonably regarded as disgraceful or dishonourable by colleagues of good repute’.[27] VCAT found charge 1 proven and dismissed charge 2, which had been brought in the alternative.
[27]VCAT was here clearly applying the test stated in Allinson [1894] 1 QB 750, 763 (Lopes LJ).
These findings need to be understood in the context of the evidence before VCAT and the submissions of the parties. As I have already noted, the Commissioner did not contend that Mr Pham had made the statutory declaration in the course of legal work. By the time that Mr Pham made the declaration, he had left the employ of Kabo Lawyers and, on the unchallenged evidence, was unemployed. But he did hold a practicing 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.
I think it is clear from that context and the terms of VCAT’s reasons for decision that it did not find that Mr Pham was guilty of professional misconduct at common law in relation to the performance of legal work. It found him guilty of that charge upon the basis that, as a legal practitioner, he had knowingly made a statutory declaration containing false statements. It was plainly open on the evidence for VCAT to find that Mr Pham had made the declaration in that capacity. The unchallenged evidence was that Mr Pham was a legal practitioner seeking the removal of the supervised legal practice condition from his practicing certificate.
Mr Pham’s contention that he made the statutory declaration in a ‘private’ capacity was not ignored by VCAT but, in the end, was not to the point. Making the declaration may have been ‘private’ in the rather narrow sense that it was not done in the course of legal work and it concerned Mr Pham personally. But he made the declaration in his capacity as a legal practitioner and to the Board in support of an application for the removal of the supervised legal practice condition from his practising certificate. Consistently with authority, VCAT was entitled to take that fact into account when determining that Mr Pham was guilty of professional misconduct at common law.
I do not accept that there was a strict separation between the matters alleged in charges 1 and 2, with charge 1 covering matters ‘unconnected’ to legal practice and not matters ‘connected’ to legal practice, those latter matters being covered by charge 2 alone. The authorities emphasise and the present case demonstrates that such distinctions can be artificial. As a matter of drafting, the terms of charge 2 alleged misconduct in connection with the practice of law.[28] But charge 1 was not so drafted and its terms did not preclude consideration of the capacity in which Mr Pham made the statutory declaration. In my view, charge 1 was applicable to the Mr Pham’s conduct as a solicitor who, in that capacity, knowingly made a statutory declaration containing false statements, as VCAT found.
[28]The definition of ‘professional misconduct’ in s 4.4.3(1)(b) of the Legal Profession Act included but is not confined to misconduct in that connection.
Mr Pham also submitted that VCAT had found him guilty of a charge that had not been brought against him and had thereby fallen into jurisdictional error, asked itself the wrong question and made a finding that was not open on the evidence. The gravamen of this submission was that VCAT made its findings in relation to whether Mr Pham was employed as a solicitor and was engaged in the performance of legal work by reference to the ‘entire period’ from 24 November 2011 to 10 July 2012 and not the limited period of 24 November 2011 up to 27 February 2012.
I reject this submission. VCAT could legitimately have organised its consideration of these issues (Issues 1 and 2) in a number of ways. It chose to state and consider the issues in terms of the ‘entire period’. It obviously did so because the statement made in Mr Pham’s statutory declaration was made by reference to that period. VCAT’s reasons for decision show that it understood and analysed those issues by reference to the evidence relating to Mr Pham’s work and employment status in the limited period that was in actual factual contention. VCAT’s determination of the issues expressed in terms of the ‘entire period’ logically followed from its determination of the issues in relation to the limited period. By determining the issues in this way, VCAT did not commit any jurisdictional error, ask itself the wrong question or make a finding that was not open on the evidenc.
Mr Pham also submitted that VCAT erred in finding him ‘guilty [of] an offence (i.e. dishonesty) [with] which he was not charged’. Relying upon Simon v Legal Services Commissioner[29] and other authorities, Mr Pham submitted that there was a ‘major disconnect’[30] between the charges laid and those found proven. He submitted that, in finding him guilty of dishonesty, VCAT had committed a jurisdictional error, failed to act fairly and in accordance with the substantial merits of the case,[31] asked itself the wrong question, relied upon irrelevant material and breached the rules of procedural fairness, among other things.
[29][2014] VSC 185 (29 April 2014) [18], [22]-[24] (Emerton J).
[30]Ibid [22].
[31]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98.
As I have pointed out, the charges against Mr Pham did not allege that he was guilty of professional misconduct by dishonestly making a false statutory declaration. The charges alleged that he was so guilty by making a declaration with contents that he knew or ought to have known were false. The charges were valid charges of professional misconduct and could be, and in the case of charge 1 was, proved without attempting to establish, or establishing, dishonesty. The Commissioner did not seek to establish dishonesty and made no submission that it had done so. I reject the submission that the Commission submitted that Mr Pham had acted dishonestly. I accept that the Commissioner conceded that ‘[i]t may well be that [Mr Pham] believes he’s completed two years’ worth of supervised legal practice’. But, as indicated above, the Commissioner submitted (in relation to charge 1) that, in knowingly making false statements in a statutory declaration, Mr Pham had breached his professional duties in relation to the contents of declarations.
The reasons for decision of VCAT must be understood in that context. At no point in the reasons did VCAT address the issue of whether Mr Pham had a dishonest state of mind in relation to the contents of the statutory declaration. In relation to the charges, knowledge, not dishonesty, was the relevant element. In relation to Mr Pham, the state of mind that VCAT had address was knowledge, not dishonesty. Therefore it was correct of VCAT to address itself to whether the Commissioner had established that Mr Pham had made the declaration knowing its contents to be false. The finding that the asserted hours were a ‘construct’ was a finding of knowledge, not dishonesty. The statement that knowingly making a false declaration with false contents was a breach of a ‘practitioner’s duty of honesty and candour and diligence in relation to the contents of documents’ represented a finding of breach of practitioner’s duty, not a finding of dishonesty. ‘Honesty’ was included in the statement by way of general description of the scope of the duty not by way of finding that that part of the duty had been breached.
This ground of appeal has not been established.
(2) Were VCAT’s reasons for decision adequate?
Mr Pham contended that VCAT committed an error of law by providing inadequate reasons for decision. This contention was particularised in detail in para 2(A)-(F) of the grounds of appeal.
In support of this ground of appeal, Mr Pham submitted (among other things) that:
·VCAT referred to only one authority and did not refer to authorities relied upon by Mr Pham
·it failed to give any reasons for decisions it made in relation to key legal and factual issues and the reasons that it did give consisted of vague and sweeping statements
·it failed to explain why it preferred particular evidence and did not consider opposing evidence
·there was no reasoning in relation to liability and penalty
·it did not refer to its earlier ruling on jurisdiction
·it ought to have, but did not, provide reasoning in relation to a number matters
As submitted by Mr Pham and accepted by the Commissioner, VCAT is statutorily obliged to give reasons for any order that it makes in the proceeding.[32] The scope of this obligation was explained in a related context by Nettle JA (Batt and Vincent JJA agreeing) in Hunter v Transport Accident Commission[33] in the following terms:
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; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion.[34] It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case,[35] 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.[36] Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.[37]
This explanation of the scope of the obligation to give reasons for decision was approved by the Court of Appeal in Franklin v Ubaldi Foods Pty Ltd.[38] It is an error of law for VCAT to fail to comply with this obligation.[39]
[32]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 117(1).
[33](2005) 43 MVR 130, 136-7 [21] (‘Hunter’).
[34]Cropp v TAC [1998] 3 VR 357, 376 (Charles JA); Giannakopoulos v Melwire Pty Ltd and MMI Workers’ Compensation (Victoria) Ltd [2000] VSCA 153 (14 August 2000) [23] et seq (Tadgell JA); Dodoro v Knighting [2004] VSCA 217 (3 December 2004) [39] (Buchanan JA) and [45] and [58] (Eames JA in diss).
[35]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 463 [62] (Gleeson CJ, McHugh and GummowJJ).
[36]Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18 (Gray J, Fullagar and Tadgell JJ agreeing).
[37]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279-80 and 282 (McHugh J); Fletcher Constructions Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28, 35 [18] (Chernov JA).
[38][2005] VSCA 317 (21 December 2005) [37] (Ashley JA, Warren CJ and Nettle JA agreeing) (‘Franklin’).
[39]Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 (13 February 2007) [23] (Buchanan JA, Ashley JA and Smith AJA agreeing); Franklin [2005] VSCA 317 (21 December 2005) [38] (Ashley JA, Warren CJ and Nettle JA agreeing).
In my view, in the present case VCAT complied with its obligation to provide reasons for decision. Consistently with the judgment of Nettle JA in Hunter, the reasons deal with the substantial points that were raised, explain the findings on the material questions of fact (and refer to the evidence on which those findings were made) and provide an intelligible explanation of the process of reasoning that led VCAT from the evidence to the findings and from the findings to the ultimate conclusion.
No doubt VCAT is required to determine and provide reasons for determining the substantial matters that are in issue. However, I do not accept that it is legitimate to attack reasons for decision by listing all of the matters that were in issue, or conceivably in issue, and then seizing upon any failure to deal expressly or at length with any particular one or all of those matters. This approach was adopted by Mr Pham, especially in a para 2(F)(a)-(v) of the grounds of appeal. Listing attacks of this nature offend the principle that reasons for decision must not be read ‘minutely and finely with an eye keenly attuned to the perception of error’,[40] must be read fairly, as a whole and in context[41] and must be considered taking into account that ‘[i]t is plainly not necessary for a tribunal to refer to every piece of evidence and every contention made by the applicant in its written reasons’.[42] Applying this principle, VCAT’s decision provides adequate reasons in relation to the substantial issues in dispute and its determination of all of the issues in dispute can be logically inferred from those reasons.
[40]Collector of Customs v Pozzolanic (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ), approved in Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[41]Shock Records v Jones [2006] VSCA 180 (7 September 2006) [85] (Bell AJA, Callaway and Ashley JJA agreeing), approved in Transport Accident Commission v Florrimell [2013] VSCA 247 (13 September 2013) [51] (Tate JA, Hansen JA agreeing) and R&P Boland Nominees v Hobbs [2013] VSCA 66 (27 March 2013) [62] (Kyrou AJA, Neave JA and Redlich JA agreeing).
[42]WAEE v Minister for Immigration & Indigenous Affairs (2003) 75 ALD 630, 641 [46] (French, Sackville and Hely JJ); see also Turner v Minister for Immigration & Ethnic Affairs (1981) 55 FLR 180, 184 (Toohey J).
In coming to this conclusion, I take into account that there were only three witnesses in the case: Mr Kabo and Loan (Shanice) Hoang from Kabo Lawyers on the Commissioner’s side and Mr Pham on his side. The central issue was whether Mr Pham had made a statutory declaration containing statements that he knew or ought to have known was false. The resolution of that issue turned on whether Mr Pham had worked as a solicitor for the entire period of 24 November 2011 to 10 July 2012 (the limited period of 24 November 2011 up to 27 February 2012 being the one in contention), whether he had worked the very great number of daily and weekly hours that he declared and, if these issues were resolved against him, whether he knew or ought to have known that the declaration was false. These issues were capable of being dealt with concisely, and VCAT dealt with them in that way. I do not accept that VCAT’s reasons consist of vague and sweeping statements.
VCAT’s reasons refer to the evidence of Mr Kabo and Ms Hoang and that of Mr Pham. It is clear from its reasons that, where there was a conflict of evidence between that of Mr Kabo and Ms Hoang on the one side and Mr Pham on the other, the evidence of the former was to be preferred. The reasons for this preference were made clear in the reasons. In that connection, VCAT makes reference to the consistent evidence of Mr Kabo and Ms Hoang, as supported by documentary evidence. Mr Pham’s evidence was not supported (in key respects) by the evidence of the other witnesses, indeed their evidence fundamentally undermines his evidence. In relation to the period during which Mr Pham did legal work, as explained in the reasons VCAT took into account when Mr Pham obtained a practising certificate and the evidence given by the witnesses from Kabo Lawyers about the nature of that work. In relation to the hours worked by Mr Pham as a solicitor, it took into account the ‘complete improbability’ of his evidence and the evidence given by the witnesses from Kabo Lawyers about the amount and hours of that work. These and other aspects of VCAT’s reasons well explain why it made the findings and reached the conclusions that it did.
In the circumstances of the case, it was not necessary for VCAT to refer to the authorities relied upon by the parties. There was no real legal issue to resolve (the jurisdictional issue had been resolved earlier). The outcome of the case was always going to turn on the found facts. VCAT correctly stated the test for determining whether the conduct of a solicitor would constitute professional misconduct at common law. It then applied that test to those facts. In the end, VCAT determined that, in making and submitting to the Board a statutory declaration in relation to the conditions of his practising certificate containing statements that he knew to be false, Mr Pham was guilty of professional misconduct at common law. That conclusion was based upon findings of fact that were open and followed logically from the application of the correct legal standard, as VCAT explained.
As I have already noted, the issue of jurisdiction was raised by Mr Pham at the start of the hearing. After receiving submissions from Mr Pham, VCAT ruled that it had jurisdiction. It gave reasons for decision, which were recorded on transcript. I have examined those reasons and they very adequately explain why the ruling was given. In essence, Mr Pham submitted that VCAT did not have jurisdiction because he had really been charged with the criminal offence of perjury. VCAT’s reasons explain, consistently with the legal principles that I discuss above, that Mr Pham was not charged with perjury but with professional misconduct. That ruling was correct in law and, I repeat, adequately explained. There was no need for VCAT to go into the matter further in the reasons for decision.
In relation to the findings on penalty, VCAT explained its decision by reference to the need for specific and general deterrence. Referring to Mr Pham’s inexperience, it rejected the Commissioner’s submission in favour of a long period of suspension. It expressly referred to the need to avoid a penalty that was so excessive as to be punitive. It emphasised the greater value in educating a young practitioner at the commencement of his career, and also of further supervision and training. These reasons very adequately explain why VCAT imposed the penalty that it did. The penalty imposed and the reasons given also demonstrate that it took into account the matters that arose by way of mitigation on Mr Pham’s side.
This ground of appeal has not been established.
(3) Did VCAT make findings not open?
This ground of appeal was that VCAT made findings that were not open on the evidence (paras 3(A)-(E) of the grounds of appeal). In Mr Pham’s submission, those findings were:
·Mr Pham’s ‘personal misconduct’ amounted to professional misconduct (given that the test in Piva was applicable and not satisfied)
·he worked as a sub-contractor for the entire period of 24 November 2011 to 10 July 2012 when, after 27 February 2012, it was not in dispute that he worked as a solicitor
· he committed an offence in ‘judicial proceedings’
· his alleged misconduct was ‘dishonourable and disgraceful’ (given that ‘dishonesty’ had to be, was not and could not be established)
· he was not employed as a lawyer/solicitor for the entire period of 24 November 2011 to 10 July 2012 (as to which VCAT took irrelevant matters into account, including matters of legal work, practising certificate, etc)
· he was employed as a sub-contractor from 24 November 2011 to 24 February 2012
· Mr Kabo was mistaken in stating in the letter of 6 August 2012 that Mr Pham was employed as a lawyer from 24 November 2011 to 10 July 2012
· Mr Pham did not perform legal work, and no supervised legal work, from 24 November 2011 to 24 February 2012
· he did not work approximately 17.5 hours a day, seven days a week, performing supervised legal practice from 24 November 2011 to 10 July 2012
· his statement about the amount of supervised legal practice that he undertook was a ‘complete improbability’ (taking into account (among other things) that his evidence about the amount of legal work that he performed at home was not, and could not be, disproved)
· he made the statutory declaration knowing it to be false (when, at worst, VCAT should have found that he made the statement with an honest but mistaken belief in its truth but acted with inadvertence, carelessness or misunderstanding, and could not have made the finding that it did without finding that his belief was false, which finding was not available on the evidence, especially taking into account the concession made by the Commissioner that he had not acted dishonestly)
In relation to errors of law constituted by findings of fact not open on the evidence, the parties referred to my judgment in Director of Liquor Licensing v Kordister Pty Ltd.[43] In that case, I referred to the summary of the relevant principles that I gave in Rugolino v Howard.[44] I here set out that summary:[45]
in Roads Corporation v Dacakis,[46] Batt J held ‘the question whether there is any evidence of a particular fact is a question of law.’ Therefore a finding of fact is open to challenge as ‘erroneous in law’, but only if ‘there is no probative evidence to support it’.[47] Similarly, in S v Crimes Compensation Tribunal,[48] Phillips JA said making a finding of fact would ordinarily give rise to an error of law only if ‘it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it.’ His Honour emphasised that the question was not whether the finding was ‘reasonably open’, for that implied the court on appeal could test the finding against a reasonableness standard, but whether the finding was open at all.
S v Crimes Compensation Tribunal has been followed and explained by the Court of Appeal. In Myers v Medical Practitioners’ Board of Victoria,[49] Warren CJ (Chernov JA and Bell AJA agreeing) held there was no error of law in making a finding of fact unless the finding was ‘not open’. After endorsing[50] the decision of Phillips JA in S v Crimes Compensation Tribunal, the Chief Justice approved the statement of Kirby P in Azzopardi v Tasman UEB Industries[51] that it was ‘critical’ to making findings of fact that they be based on the evidence, but there would be no error of law ‘unless it can be shown that there was no evidence’ to support the finding. The decision of Phillips JA in S v Crimes Compensation Tribunal was also followed in ISPT Pty Ltd v Melbourne City Council.[52]After approving the ‘not open’ test, Warren CJ, Kellam JA and Osborn AJA referred to Transport Accident Commission v Hoffman[53] where Young CJ and McGarvie J said an appeal court, when determining whether a finding of fact was made in error of law, had to determine whether there was ‘any evidence’ to support it.[54]
[43][2011] VSC 207 (18 May 2011) (‘Kordister’).
[44][2011] 57 MVR 178 (‘Rugolino’).
[45]Ibid 180 [10]-[12].
[46][1995] 2 VR 508, 517.
[47]Ibid 520.
[48][1998] 1 VR 83, 90.
[49](2007) 18 VR 48, 59 [44].
[50]Ibid [43]-[44].
[51](1985) 4 NSWLR 139, 151.
[52](2008) 20 VR 447.
[53][1989] VR 197, 199.
[54](2008) 20 VR 447, [65].
Among other authorities, this summary was based upon the principles stated in the judgment of Phillips JA in S v Crimes Compensation Tribunal.[55] In that judgment, his Honour explained how the word ‘reasonably’ was used in relation to the legal requirement that tribunals of fact must make findings that are ‘reasonably open’ upon the evidence:
The word ‘reasonably’ is used in this context, I suggest, just to emphasise that, when judging what was open and what was not open below, we are speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily. The danger of using the word ‘reasonably’ lies in its being taken to suggest that a finding of fact may be overturned, on an appeal which is limited to a question of law, simply because that finding is regarded as ‘unreasonable’. That is not the law as I understand it, at least in Australia. A finding of fact will be overturned on an appeal on a question of law only if that finding was not open.[56]
[55][1998] 1 VR 83.
[56]Ibid 91.
In Kordister, after referring to the summary in Rugolino, I emphasised that a fact finding did not constitute an error of law merely because it might be thought, by an appellate court, to be erroneous or against the weight of the evidence:
It follows that, in the present case, the court must determine whether there is some evidence which could support the findings of fact made by the tribunal, which is a question of law.[57] If there is some evidence or other probative information supporting the finding of fact of the tribunal, the finding will be legally open to the tribunal to make in the exercise of its statutory jurisdiction. In an appeal of this nature, the court could not overturn the finding even if it thought it was erroneous or against the weight of the evidence.[58]
[57]See also Secretary, Department of Infrastructure v Williamstown Bay and River Cruises Pty Ltd [2011] VSC 191 (12 May 2011) [59] per Dixon J where these principle were recently applied in an appeal from a decision of the tribunal.
[58]Kordister [2011] VSC 207 (18 May 2011) [248].
On more recent occasions, the Court of Appeal has restated and applied the principles on this subject. For example, in Love v Roads Corporation,[59] Whelan JA (Nettle JA and Almond AJA agreeing) said:[60]
[59][2014] VSCA 129 (25 June 2014) (‘Love’).
[60]Ibid [39].
A ground of appeal which attacks a factual finding can only succeed if it is demonstrated that it was not open to the trial judge, on the evidence before him or her, to make the finding in question.[61] Where it is contended that some different finding of fact to that made by the trial judge should have been made, that ground can only succeed if it is shown that the judge was bound on the evidence to make that different finding.[62]
In Hoser v Department of Sustainability and Environment,[63] Redlich JA, Tate and Santamaria JJA said:[64]
An appeal from the Tribunal being limited to questions of law, the applicant must show error of law in the Tribunal‘s conclusion that its discretion was enlivened or in the exercise of its discretion. The applicant submits that the Tribunal erred in its fact-finding. Thus he must show there was either no evidence to support the impugned finding or that the finding was not reasonably open.[65] In attacking the exercise of the discretion, it is necessary for the applicant to demonstrate error of law in accordance with the well-known principles of House v The King[66] (emphasis added).
I understand the expression ‘not reasonably open’ in the sense that it was explained by Phillips JA in S v Crimes Compensation Tribunal[67] (see above).
[61]S v Crimes Compensation Tribunal (1998) 1 VR 83, 89–90; Victorian WorkCover Authority v Michaels (2009) 26 VR 88, 91 [8]; Love v Roads Corporation [2014] VSCA 30 (6 March 2014) [14].
[62]McVey v GJ and LJ Smith Pty Ltd [2012] VSCA 312 (17 December 2012) [13], [24], [34]; Love [2014] VSCA 30, [14].
[63][2014] VSCA 206 (5 September 2014).
[64]Ibid [29].
[65]Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 (Phillips JA).
[66](1936) 55 CLR 499, 504–5.
[67][1998] 1 VR 83, 91.
While the parties both relied upon this body of principle, in his reply submissions Mr Pham criticised the Commissioner’s reliance upon the proposition, derived from my judgment in Kordister, that an error of law was not committed where there was ‘some’ evidence to support the challenged finding. He submitted that the question whether a finding of fact was open on the evidence was not answered by pointing to some evidence in support of the finding without considering that evidence in the context of the whole of the evidence. I was not suggesting otherwise in Kordister. It is elementary that evidence in support of a finding has to be considered in the context of the whole of the evidence to determine whether, so considered, it is capable of supporting the finding. The authorities to which I have referred so establish and the Commissioner was not submitting otherwise.
Assessed against these principles, Mr Pham’s submissions under this ground of appeal must be rejected. The findings made by VCAT were open upon the evidence, indeed unsurprising. Considered in the context of the whole of the evidence, there was ample evidence to support the findings. Many of Mr Pham’s submissions in this connection run directly contrary to the jurisdiction of the court. The court has an appellate jurisdiction under s 148(1) of the Victorian Civil and Administrative Tribunal Act. That jurisdiction is supervisory, not substitutionary. That is to say, the court’s jurisdiction is one akin to judicial review, not merits review. As the authorities have repeatedly emphasised, it is for VCAT to make findings of fact. On appeal, the court can review those findings against the legal standard that findings of facts must be reasonably open upon the evidence but cannot overturn the findings because the court would, on the evidence, have made different findings or considers the findings to be against the weight of the evidence.
In relation to the finding that Mr Pham’s ‘personal misconduct’ amounted to professional misconduct, I do not accept that VCAT ignored the test in Piva. I have referred to the findings already which, in my view, were open upon the evidence, after taking into account that test.
In relation to Mr Pham’s work as a sub-contractor, VCAT did not find that he so worked from 24 November 2011 to 10 July 2012. It found that he so worked from 24 November 2011 up to 27 February 2012. This finding was open upon the evidence.
In relation to Mr Pham committing an offence, VCAT did not so find (see above).
In relation to the finding that Mr Pham had committed ‘dishonourable and disgraceful conduct’, VCAT was not bound, as a matter of law, to find dishonesty before making that finding. Professional misconduct at common law can be constituted by conduct that is dishonourable and disgraceful in the minds of reasonable professional colleagues without being dishonest. It was a matter for VCAT to determine whether the found misconduct (making the statutory declaration knowing it to contain false contents) was dishonourable and disgraceful in that sense. The finding that it made in this regard was open upon the evidence and reflected the application of the correct legal standard. Further, there was no inconsistency between the Commissioner’s concession about Mr Pham’s (possible) belief in relation to performing two years’ worth of supervised legal practice and his contention that the contents of the statutory declaration were (knowingly) false. The Commissioner did not have to prove both the falsity of the belief and the (knowing) falsity of the contents, only the latter.
In relation to the finding that Mr Pham was not employed as a lawyer/solicitor for the entire period from 24 November 2011 to 10 July 2012, I have identified the factual bases of this finding already. In summary, those factual bases were that he did not have a practising certificate, and did not perform legal work, up to 27 February 2012. The findings made in relation to those facts were open on the evidence and so was the finding made on those bases. It was not irrelevant for VCAT to take into account matters of legal work, his practising certificate status and other such matters.
In relation to the finding that Mr Pham was employed as a sub-contractor from 24 November 2011 up to 27 February 2012, this finding was open on the evidence. As I have already pointed out, the case of the Commissioner on this subject was supported by the evidence of Kabo Lawyers. For objectively sustainable reasons, VCAT preferred that evidence to the evidence of Mr Pham.
In relation to the letter of 6 August 2012, VCAT was entitled to accept Mr Kabo’s explanation for signing this letter. Sworn evidence was given by Mr Kabo, which persuaded VCAT that the letter was a mistake, contrary to the sworn evidence of Mr Pham. Taking into account the whole of the evidence, including Mr Pham’s lack of a practising certificate in the period from 24 November 2011 to 16 February 2012 and the nature of the work he performed in this period, this finding was clearly open.
In relation to the nature of Mr Pham’s work from 24 November 2011 up to 24 February 2012, VCAT was entitled on the evidence to find that he performed no legal work and no supervised legal work. Again, I have referred to the evidence on this subject already. The evidence of Kabo Lawyers was devastating to Mr Pham’s case on this subject and, on the whole of the evidence, the finding made by VCAT was open and unsurprising.
In relation to the hours of supervised legal work undertaken by Mr Pham from 24 November 2011 to 10 July 2012, the findings made by VCAT were open. The proposition that a lawyer could perform such work 17.5 hours per day during that period really was a ‘complete improbability’ and could only be accepted on the basis of compelling evidence. Again, the evidence of Kabo Lawyers on this subject was devastating for Mr Pham’s case on this subject. It provided an objective foundation for rejecting Mr Pham’s evidence, in line with the complete improbability of his statement. His evidence that he performed supervised legal work at home was not ignored by VCAT. It was not bound by that evidence to uphold the finding sought by Mr Pham, given the evidence of Kabo Lawyers.
In relation to Mr Pham’s knowledge of the falsity of the contents of the statutory declaration, I have discussed this subject already (see above). VCAT was entitled to find, as it did, that he made the statutory declaration knowing the contents to be false. That finding necessarily involves rejection of the proposition that Mr Pham made the statement in the honest and reasonable, but mistaken, belief that the contents were true and correct, as submitted by Mr Pham. The Commissioner did not place Mr Pham’s honesty in issue, conceding that he might have believed that he had performed two years’ work of supervised legal practice. But it sought to prove, and did prove to VCAT’s satisfaction on the basis of the probative evidence, that he made the statutory declaration knowing its contents to be false. On the whole of the evidence, VCAT’s findings in this regard were not only open but demanded.
Mr Pham submitted (among other things) that the evidence before VCAT did not support the findings made because his evidence was conceded by the Board’s witnesses, which left his evidence unchallenged. I do not accept that as a fair reading of the evidence of the witnesses from Kabo Lawyers. While aspects of his evidence were conceded, the burden of the evidence of those witnesses was directly contrary to that of Mr Pham in fundamental respects.
Mr Pham also submitted that VCAT erred in law in interpreting reg 2.4.2(2) and (3) of the Legal Profession Regulations so as to authorise examination of the question of fact whether he had performed the amount of supervised legal practice specified in his statutory declaration. He submitted that the Regulations required the Board to accept the number of ordinary and extraordinary hours of such work represented by the practitioner. I reject this submission. The Board (and VCAT) can, and in an appropriate case (like the present case) should, examine the factual correctness of statements made by practitioners in connection with applications made under these Regulations.
Mr Pham also submitted that the findings made by VCAT were not made according to the Briginshaw standard. I also reject this submission. VCAT expressly referred to this standard and Mr Pham has not established that it was not properly applied. The reasons for decision suggest that VCAT did apply this standard. Taking the standard into account, the factual findings that it made were open upon the evidence.
Under this ground of appeal, Mr Pham submitted that his actions of preparing and executing the statutory declaration, while perhaps reprehensible, did not warrant disciplinary action. In this connection, he referred to his inexperience as a lawyer, the lack of any prior history of misconduct, his unemployment at the time (and therefore him not being engaged in legal practice), his cooperation with the investigation and other matters. He submitted that, having regard to these matters, disciplinary action was unnecessary and disproportionate.
In support of these submissions, Mr Pham relied upon Stirling v Legal Services Commissioner[68] and the principle of parity.[69] He drew attention to a number of cases[70] which, in his submissions, were worse examples of professional misconduct than his yet attracted lesser penalties, especially taking into account that his practising certificate was suspended and further conditions were imposed on his entitlement to resume practice (para 2(a) of the order). Mr Pham submitted that it was not open to VCAT to impose those conditions as they were irrelevant and disconnected with the offending.
[68][2013] VSCA 374 (17 December 2013) [41], [107]-[108] (Warren CJ, Neave JA and Dixon AJA).
[69]As discussed in Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (21 July 2014).
[70]Legal Services Commissioner v Wong (Victorian Civil and Administrative Tribunal, Member Gerard Butcher, 29 March 2012, unreported), Law Society of New South Wales v Singh [2010] NSWADT 26 (28 January 2010) and Legal Services Commissioner v Lim [2011] QCAT 291 (16 June 2011).
It may be accepted that, if error of law is established, a decision of VCAT in relation to penalty may be overturned on appeal. But, as Kyrou J held in Johnson v Director of Consumer Affairs Victoria,[71] ‘a decision on penalty is a discretionary decision which can only be impugned on the basis of the principles set out in House v The King’. The principles in House v The King[72] require the appellant to establish legal error of the kind specified in that judgment. Mr Pham has not so established. The found offence was professional misconduct at common law constituted by, as a legal practitioner, knowingly making false statements in a statutory declaration provided to the Board in relation to an application for variation of the conditions in the practitioner’s practicing certificate. For that offence in the circumstances, the penalty imposed by VCAT was not excessive or disproportionate. As submitted by the Commissioner, the cases relied upon by Mr Pham in relation to the principle of parity all turned on their own facts and are distinguishable. Far from being irrelevant, the extra conditions were directly responsive to the circumstances of the offending and Mr Pham’s position as a young and inexperienced practitioner. As I have already stated in reference to VCAT’s reasons for decision in relation to penalty, I do not accept that it failed to take into account the matters that stood in mitigation on Mr Pham’s side.
[71][2011] VSC 595 (23 November 2011) [115], citing Buzzo Holdings Pty Ltd v Loison [2007] VSC 31 (26 February 2007) [18] (Kaye J).
[72](1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
This ground of appeal has not been established.
(4) Did VCAT breach the rules of procedural fairness?
This ground of appeal is that VCAT breached the rules of procedural fairness (para 4(A)-(B) of the grounds of appeal). As submitted by Mr Pham, it may be accepted that a breach of these rules constitutes an error of law.[73] It may also be accepted that the rules of procedural fairness required VCAT to give the parties, including Mr Pham, a reasonable opportunity to present their cases and allow them to answer any allegation put against them.[74]
[73]Luck v Renton [2005] VSCA 210 (23 August 2005) [17] (Maxwell P, Harper AJA agreeing).
[74]Towie v Medical Practitioners Board of Victoria [2008] VSCA 157 (26 August 2008) [35] (Redlich and Weinberg JJA and Mandie AJA); see also Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 97 and 98(1)(a).
Mr Pham submitted that VCAT breached the rules of procedural fairness in these (and other) respects:[75]
·saying ‘no’ to Mr Pham during his submissions on the issue or jurisdiction
·failing to deal properly in its reasons for decision with the issue of jurisdiction
·failing to inform Mr Pham that it would make findings in relation to the entire period of 24 November 2011 to 10 July 2012 and not only the limited period of 24 November 2011 to 27 February 2012
·allowing the court to make submissions in relation to dishonesty when this had not been an issue at the hearing
[75]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.
In relation to saying ‘no’ to Mr Pham, the transcript of the hearing shows that the word was spoken by the senior member during argument on the issue of jurisdiction and did not amount to stopping Mr Pham or pre-judgment of the issue. As submitted by the Commissioner, Mr Pham was not stopped and went on with his submissions.
In relation to failing to deal with the issue of jurisdiction in the reasons for decision, VCAT had already dealt with this issue by way of ruling at the commencement of the hearing. It did so after receiving submissions from the parties. As noted above, I have examined the transcript of the hearing in this respect. I have also examined the reasons for decision given for the ruling, which were recorded in that transcript. In my view, what occurred at this hearing afforded procedural fairness to Mr Pham and the reasons for the ruling were very adequately explained. The rules of procedural fairness did not require VCAT to receive further submissions on this issue or go further into it in the final reasons for decision.
In relation to the finding concerning the entire period of 24 November 2011 to 10 July 2012, the submissions of Mr Pham are misconceived. For the reasons given above, VCAT legitimately approached the issue in the way that it did and committed no breach of the rules of procedural fairness in doing so.
In relation to allowing the Commissioner to make submissions on dishonesty, VCAT did no such thing. The Commissioner made no such submissions, except to repeat its concession on the subject (see above).
Mr Pham also submitted that VCAT breached the rule against bias. As he submitted, it may be accepted that a breach of this rule constitutes an error of law.[76] There in nothing in the evidence to support a claim of actual bias against VCAT. In any event, as I read Mr Pham’s submissions, he alleges apprehended bias. The question is whether ‘a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question that must be decided’.[77]
[76]Leon Holdings v O’Donnell [2009] VSC 430 (28 September 2009) [67]-[68], [106] (Habersberger J) (‘Leon Holdings’); Magazzu v Business Licensing Authority [2001] VSC 5 (31 January 2001) [39] (Eames J).
[77]Leon Holdings [2009] VSC 430 (28 September 2009) [68] (Habersberger J), citing Johnson v Johnson (2000) 201 CLR 488, 492 [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) and Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Mr Pham submitted that VCAT breached the rule against bias in the following (and other) respects:
·adopting a ‘language and tone’, and being dismissive of Mr Pham’s submissions, in relation to the issue of jurisdiction such as to suggest that a decision had already been made
·failing to provide Mr Pham with an opportunity to make additional submissions regarding the issue of jurisdiction and not referring to this issue in the reasons for decision
·giving inconsistent rulings in relation to the admissibility of hearsay evidence
·‘echoing’ the Commissioner’s objections on ‘relevance’ with the word ‘relevance’, directed at Mr Pham
·adopting facial and bodily expressions which suggested approval of the Commissioner’s case and disapproval of Mr Pham’s case
·consistently interrupting Mr Pham in the course of his submissions
In relation to the ‘language and tone’ of the senior member during the hearing in relation to the issue of jurisdiction, the only evidence that I have in this regard is the transcript of the hearing on the day concerned. The robust language used on both sides is not evidence of bias. Far from acting dismissively towards Mr Pham’s submissions, VCAT listened to and responded to them. It tested his submissions against certain elementary propositions. As I have already noted, it then ruled upon the issue. Nothing in the way that the hearing was conducted or the way that the issue was decided establishes a reasonable apprehension that VCAT was biased against Mr Pham. As I have already decided, there was nothing which gave rise to any obligation on the part of VCAT to afford Mr Pham an additional opportunity to be heard in relation to this issue or deal with it further in the final reasons for decision.
In relation to giving inconsistent rulings, ‘echoing’ the Commissioner’s objections on grounds of relevance, adopting disapproving facial and bodily expressions and interrupting Mr Pham during the course of his submissions, there is no evidence to support these allegations. Unfortunately, there is no transcript of the second day of the hearing in VCAT. The court has no evidence of what occurred on that day. I reject Mr Pham’s submission that the Commissioner has attempted to ‘hide behind’ the absence of this transcript. In his submissions on this subject, Mr Pham does refer to the transcript of the hearing on the first day. Contrary to those submissions, this transcript does not support the allegations he makes. What I see in the transcript is a senior member attempting to grapple with Mr Pham’s submissions.
This ground of appeal is not established.
Conclusion
Taking into account the importance of the issues raised in the appeal to Mr Pham, I am prepared to grant leave to appeal. But, for the reasons given in this judgment, the grounds of appeal have not been established and the appeal must be dismissed. I will hold over making orders until I receive submissions from the parties on that question.
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conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
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