PLP (Legal Practice)[1] and v Michael McGarvie - Legal Services Commissioner , , - and - , the Victorian Civil and Administrative Tribunal and

In the case of PLP (Legal Practice) and Michael McGarvie, the applicant sought to appeal against a decision made by the Victorian Civil and Administrative Tribunal (VCAT) that resulted in the suspension of his practising certificate. The Tribunal had cancelled the applicant's practising certificate for a period of eight months, finding him guilty of professional misconduct due to his admission of sexual misconduct in the workplace. The applicant contested the decision on the grounds of bias, procedural fairness, and the excessiveness of the penalty. He also argued that VCAT erred in treating certain findings from a previous sexual harassment proceeding as admitted facts.

The court was required to determine whether VCAT had erred in treating the findings from the sexual harassment proceeding as admitted facts, and whether the Tribunal had exercised its discretion appropriately in considering the evidence and imposing the penalty. The court also needed to assess whether VCAT had properly exercised its discretion when it came to the applicant's absence from the witness box, and whether any inconsistencies in the evidence had been properly taken into account. Furthermore, the court had to consider whether the penalty imposed was excessive in light of the compensation payment made in respect of the same sexual misconduct.

The court found that VCAT had indeed erred in treating the findings from the sexual harassment proceeding as admitted facts, as the applicant had not explicitly admitted to those facts. The court also found that VCAT had not exercised its discretion properly in considering the applicant's absence from the witness box and the inconsistencies in the evidence. The court held that the penalty imposed by VCAT was excessive, particularly in light of the compensation payment made in respect of the same sexual misconduct. Consequently, the appeal was allowed, and the applicant's practising certificate was suspended for a period of two months.

The final orders of the court included the suspension of the applicant's practising certificate for a term of two months, with the remainder of the eight-month suspension imposed by VCAT being set aside. The court's decision highlighted the importance of ensuring procedural fairness and the proper exercise of discretion when dealing with matters of professional misconduct and the suspension of practising certificates.