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Pham v Legal Services Commissioner

Pham v Legal Services Commissioner

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Case Copied 27 November 2015 55 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSC 671
Decision Date: 27 November 2015

CaseChat Overview and Summary

In Pham v Legal Services Commissioner, the respondent, a legal practitioner, sought leave to appeal against orders of the Victorian Civil and Administrative Tribunal (VCAT) which suspended his practising certificate and imposed penalty conditions. The Legal Services Commissioner initiated proceedings against the respondent for professional misconduct, alleging he knowingly made a statutory declaration containing false statements. VCAT found in favour of the Commissioner and imposed the orders in question. The respondent contended that the orders should be set aside, claiming that there were errors of law in VCAT’s decision.

The central legal issues in the appeal revolved around the standard of proof required for a finding of professional misconduct, the adequacy of VCAT's reasons, and whether the penalty imposed was proportionate to the findings. The respondent argued that the principle that findings must be supported by ‘some’ evidence and be ‘reasonably’ open was not properly applied by VCAT. Additionally, the appeal questioned whether VCAT had jurisdiction to determine the charge of knowingly making a statutory declaration with false contents, and whether dishonesty was an essential element of that charge or if knowledge of falsity was sufficient. The appeal also contested whether the penalty was disproportionate and contrary to the parity principle.

The court held that VCAT's findings were reasonably open on the evidence and adequately supported by its reasons. The court found that the principle applied by VCAT was correctly understood and applied. It was determined that the charge against the respondent did not amount to criminal perjury, and VCAT did have jurisdiction to determine the matter. The court further held that knowledge of falsity was sufficient to constitute professional misconduct under the relevant legislation. Regarding the penalty, the court found that it was not disproportionate to the findings and did not contravene the parity principle.

The appeal was dismissed, and the orders of VCAT were upheld. The respondent's practising certificate remained suspended, and the penalty conditions imposed by VCAT were enforced.

Orders