Sandbach v Victorian Legal Services Commissioner

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0039

ALAN WALTER SANDBACH	Applicant
v
VICTORIAN LEGAL SERVICES COMMISSIONER	Respondent

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JUDGES:	NIALL, LYONS JJA, and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2024
DATE OF JUDGMENT:	27 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 143
JUDGMENTS APPEALED FROM:	[2022] VCAT 1477 (Quigley J) [2023] VCAT 177 (Quigley J)

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LEGAL PRACTITIONERS – Disciplinary proceedings – Professional misconduct – Breach of r 65 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (‘Uniform Conduct Rules’) – Barrister made allegations of fraud against another legal practitioner – Barrister alleged legal practitioner produced false invoice – Whether VCAT erred in law in approach to rr 65(a) and (b) – Application for leave granted – Rule 65(a) requires belief on reasonable grounds that material available provided a proper basis for the allegation – No error of VCAT in relation to test under r 65(a) – Rule 65(b) requires the barrister to satisfy two elements – No legal error in VCAT’s inference (based upon privileged material provided by applicant) that the first element of r 65(b) had been established – Appeal dismissed.

LEGAL PRACTITIONERS – Disciplinary proceedings – Professional misconduct – Appeal under s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 – Requirement of question of law – Whether VCAT erred in law by making certain findings of fact – No question of law identified – Whether VCAT erred in law by finding applicant not guilty as this was only conclusion open – No error established – Whether judge erred in law by giving inadequate or insufficient reasons – No error established – Whether VCAT erred in law by refusing to allow certain questions in cross-examination – No question of law identified – Proposed grounds of appeal do not have a real prospect of success – Leave to appeal refused.

LEGAL PRACTITIONERS – Penalty – Professional misconduct – Application for leave to appeal against penalty – Applicant reprimanded and prohibited from applying for Australian practising certificate for 12 months – Whether VCAT erred in imposing penalty – Proposed grounds of appeal do not have a real prospect of success – No House v The King error established – Leave to appeal refused.

Legal Profession Uniform Conduct (Barristers) Rules 2015, r 65; Legal Profession Uniform Law, ss 297(1)(a) and 298(b); Victorian Civil and Administrative Tribunal Act 1998, s 148(1)(a).

Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; Secretary to Department of Justice and Regulation v OUX (a pseudonym) [2018] VSCA 178; Hunter v Transport Accident Commission (2005) 43 MVR 130, considered.

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Counsel
Applicant:		Mr D Robertson KC with Mr D Clough
Respondent:		Mr T Scotter
Solicitors
Applicant:	Goldsmiths Lawyers
Respondent:	Victorian Legal Services Commissioner

TABLE OF CONTENTS

Summary

Relevant facts

The Liability Reasons

Proposed grounds 1 to 10: overview

Proposed grounds 2 and 3

Proposed ground 4

Proposed grounds 5 and 7

Proposed ground 6

Proposed ground 8

Proposed ground 9

Proposed ground 10

The Penalty Reasons

Proposed grounds 11 to 13: overview

Proposed ground 11

Proposed grounds 12 and 13

Conclusion

NIALL JA
LYONS JA
J FORREST AJA:

Summary

The applicant who has practised as a barrister seeks leave to appeal and (if leave is granted) to appeal from two decisions of the Victorian Civil and Administrative Tribunal (‘VCAT’ or the ‘Tribunal’) in relation to a charge of professional misconduct brought against him by the respondent, the Victorian Legal Services Commissioner (‘VLSC’).
The charge arose out of statements made in the Costs Court by the applicant at three hearings to the effect that an invoice dated 15 February 2016 (the ‘15 February invoice’) prepared by the solicitors for clients seeking taxation of a bill of costs was a ‘false document’ and ‘a fraud’ (the ‘fraud allegation’ or ‘fraud allegations’). VLSC relied upon a breach of r 65 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (the ‘Uniform Conduct Rules’) as constituting ‘professional misconduct’ within the meaning of ss 297(1)(a) and 298(b) of the Legal Profession Uniform Law (the ‘Uniform Law’)[1] (the ‘charge’). Rule 65 of the Uniform Conduct Rules provides that a barrister must not allege ‘any matter of fact amounting to criminality, fraud or other serious misconduct against any person’ unless the barrister believes on reasonable grounds that:
(a)available material by which the allegation could be supported provides a proper basis for it; and
(b)the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
[1]As contained in the Legal Profession Uniform Law Application Act 2014, sch l (‘Uniform Law’).
The charge was heard by the then President of VCAT who:
(a)concluded that the applicant was guilty of professional misconduct under ss 297(1)(a) and 298(b) of the Uniform Law (the ‘Liability Reasons’);[2] and
(b)as a result, concluded that the applicant be reprimanded pursuant to s 299(1)(b) of the Uniform Law and be prohibited from applying for a practising certificate under s 303(1)(j) of the Uniform Law for a total period of 12 months commencing on 16 April 2023 (the ‘Penalty Reasons’).[3]
[2]Victorian Legal Services Commissioner v Sandbach (Legal Practice) [2022] VCAT 1477 (the ‘Liability Reasons’).
[3]Victorian Legal Services Commissioner v Sandbach (Legal Practice) [2023] VCAT 177 (the ‘Penalty Reasons’).
The applicant seeks leave to appeal in respect of 12 separate proposed grounds of appeal, nine relating to the Liability Reasons and three relating to the Penalty Reasons. For the reasons that follow, we have formed the view that leave to appeal should be granted in respect of proposed grounds 2, 3 and 6 but we would dismiss the appeal in respect of those grounds. We would refuse leave on all other proposed grounds.

Relevant facts

In order to address the proposed grounds of appeal it is necessary to set out the background facts in some detail.
The applicant is an Australian lawyer who was admitted to practise in the State of Victoria on 1 May 1981 and signed the Victorian Bar Roll on 17 May 1984. He has practised continuously as a barrister from then until 2018.
The Costs Proceeding
The charge concerns the applicant’s conduct in a proceeding in the Costs Court of this Court between Mathieson Nominees Pty Ltd (‘Mathieson Nominees’) and Mr Ian Mathieson, and AJH Lawyers Pty Ltd (‘AJH’) being proceeding no SCI 2015 05894 (the ‘Costs Proceeding’).
The background to the Costs Proceeding requires some explanation. In early 2012, Mathieson Nominees approached AJH and asked it to act for the liquidators of Sprint Homes Pty Ltd (in liq) (‘Sprint Homes’) in relation to the liquidators’ public examination of various individuals in relation to the affairs of Sprint Homes. AJH agreed to do so and entered into a costs agreement with the liquidators and Mathieson Nominees. Mathieson Nominees was funding the public examinations.
In February and March 2012, AJH rendered bills totalling $35,709.10 (the ‘AJH bills’) to Mathieson Nominees for work performed by it in relation to the public examinations. Mathieson Nominees paid the bills in full. Mr Sergey Sizenko (the ‘Complainant’) is a legal practitioner whose firm (Victorian Legal Cost Assessors) was instructed by Mathieson Nominees and one of its directors, Ian Mathieson (collectively, the ‘Mathieson parties’) to seek a review of the costs claimed in the AJH bills. As a result, in May 2012, the Complainant issued a summons for taxation against AJH on behalf of the Mathieson parties.
On 17 February 2014, Gourlay JR determined to reduce the AJH bills by $1,000 and ordered AJH to repay that sum to the Mathieson parties. Gourlay JR also ordered AJH pay the Mathieson parties 50 per cent of the costs of the summons for taxation, save for their costs of the referral of the matter to the Trial Division and their costs of 17 February 2014.
AJH undertook a series of reviews and appeals (including seeking special leave from the High Court to appeal the decision of the Court of Appeal) from the costs order made by Gourlay JR. All of these were unsuccessful and resulted in further costs orders in favour of the Mathieson parties against AJH.
On 17 November 2015, the Mathieson parties filed a summons for taxation (the ‘Summons’) supported by a bill of costs claiming the sum of $421,109.43 (the ‘taxable bill of costs’) i.e. the Costs Proceeding. That was made up of disbursements of $95,828.05 and solicitors fees of $325,281.38. We note that the Complainant had prepared the taxable bill of costs and he continued to act for the Mathieson parties in the Costs Proceeding. Shortly after the filing of the Summons, AJH raised questions as to whether the indemnity principle prevented recovery of the full amount of the taxable bill of costs by the Mathieson parties. In summary, the indemnity principle only allows for the recovery of costs which the relevant party is liable to pay its solicitors but does not require those costs to have been paid. In short, AJH submitted that the Mathieson parties had no liability to pay the Complainant the costs which were the subject of the Summons.
The Complainant issued a tax invoice for professional fees of $320,000 plus GST of $32,000 (i.e. the 15 February invoice). It was issued by Victorian Legal Cost Assessors to Mathieson Nominees and relevantly provides:
For all work as per bill of costs dated 16 November 2015 for the period up to and including 17/02/2014 $120,000.00
For the legal work as per bill of costs dated 16 November 2015 from 17/02/14 – till 9 February 2016 $200,000.00
The 15 February invoice contains some matters that one would not ordinarily expect in a solicitor’s invoice. At the commencement of the 15 February invoice, after the date and invoice number, there is a heading ‘Ship Via’ with no corresponding entry. The next line has two headings ‘Bill To’ and ‘Ship To’ with the entry under each heading being Mathieson Nominees. The table at the bottom of the 15 February invoice provided:

Your Order#:Customer ABN:   Freight:               $0.00           GST

Shipping Date: Terms: Net 10      GST:      $32,000.00

COMMENT CODE RATE GST SALE AMOUNT    Total Inc     GST:   $352,000.00

GST10%   $32,000$320,000.00Amount Applied:   $0.00

    Balance Due:     $352,000.00

Printed from MYOB type="1">
The 15 February invoice was sent by email from the Complainant to the Mathieson parties on 15 February 2016 (‘15 February email’). The email relevantly provides:
As the mediation had went nowhere [sic], it is listed now for a mention. I will try to seek an interim Order for costs. In order to rebut a [sic] “indemnity principle” presumption, I issued to [Mathieson Nominees] an invoice for fees as per bill of costs, less counsel fees, as we do have a separate invoice for it.
Also on 15 February 2016, the Complainant sent AJH a copy of the 15 February invoice. He also sent a copy of the 15 February invoice to Gourlay JR at about that time in order to rebut the indemnity principle presumption. There are no documents evidencing these communications in the application book. We pause to note that it was evident from a cursory comparison that the solicitors’ fees claimed in the 15 February invoice ($320,000) generally corresponded with, but were a little less than, the amount of solicitors’ fees claimed in the taxable bill of costs ($325,281.38) The difference is that some of the fees in the taxable bill of costs relating to the taxation itself (such as the solicitors’ attendance at taxation) were to be incurred after mid-February 2016. These amounts have not been charged in the lump sum 15 February invoice.
The three hearings
On 23 February 2016, the applicant was briefed to appear on behalf of AJH at a mention of a summons on 24 February 2016 before Gourlay JR (‘24 February mention’).
On 20 June 2016, Gourlay JR ordered the Mathieson parties to file and serve any costs agreements between the solicitors on the record and the Mathieson parties, costs disclosures and certain other retainer documents.
The matter returned before Gourlay JR for further directions on 30 June 2016 (the ‘30 June mention’). The applicant was briefed to appear for AJH at that hearing. At the 30 June mention, the applicant submitted, in substance, that counsel for the Mathieson parties had engaged in unethical conduct because he undertook work without having received a backsheet. The applicant also said in relation to the 15 February invoice:
(1)‘That is plainly a false invoice’.
(2)‘…on the face of it the production of false invoices after the event to defeat points that have been made against them … ’
(3)‘What I’m implying is – well, there is a fraud here. It’s not in relation to that [costs agreement and disclosure], but there is a fraud here in relation to the purported invoice produced to defeat the indemnity principle’.
(4)‘In my submission it most certainly is fraud’.
(5)‘Produce a false document, that’s what he’s done’
(6)‘On no view could this bill be a genuine bill in accordance with any form of retainer in any way referable to the Supreme Court scale, which [the Complainant] would now have the court believe is the governing retainer. Nothing can save this bill [on which the 15 February invoice was based] in my submission’.
(7)‘How it’s fraudulent is this. It purports on the face to be a bill pursuant to retainer which is providing for work to be done calculated in accordance with the Supreme Court scale’.
(8)‘It bears no relationship to the bill. The figures bear no relationship to that bill and nor do they bear any relationship to any liability deriving from a retainer based upon the Supreme Court scale. This document I say unequivocally is a false document. It is a false document which we now know by virtue of production of the covering invoice only came into existence for the purpose of defeating the very argument which is being put and which the lawyer who produced this false document knew was being put against him that the application of the indemnity principle would destroy his claim for costs’.
During the course of the 30 June mention, Gourlay JR expressed scepticism about the basis on which the applicant was putting these allegations against counsel relating to the failure to obtain a backsheet and the 15 February invoice. In relation to the latter, she said that ‘it, in my view, is not a false document’. Further, as is evident from the following extract of the transcript from the 30 June mention, Gourlay JR cautioned the applicant about continuing to press this submission:
JUDICIAL REGISTRAR: I have to say, Mr Sandbach, I am running very close to thinking that the submission that you’ve made is in fact in breach of the Civil Procedure Act because in my view is it’s [sic] a submission that is made almost out of desperation.
MR SANDBACH: In my submission that is not the case at all.
JUDICIAL REGISTRAR: And without any basis for making it. My view is I order an affidavit to be sworn by someone on the applicant’s side to say that the liability for the legal costs exist. And if that is sworn with sufficient annexure evidence that is it.
MR SANDBACH: That would be ideal.
JUDICIAL REGISTRAR: We’d get out of it. We don’t need anything else. If it’s Mr Ian Mathieson or, I think his name is Mr Ross Mathieson [sic], whoever the directors of Mathieson [N]ominees, whoever is liable then we’re done.
MR SANDBACH: Could I submit that we couldn’t agree more, that would be the ideal order.
Following this exchange, at the conclusion of the 30 June mention, Gourlay JR ordered that the Mathieson parties file an affidavit deposing to their liability to pay the legal costs of their lawyers claimed in the taxable bill of costs. Pursuant to this order, the Complainant filed the affidavit of Mr Alan Ross Mathieson sworn 15 July 2016 (the ‘15 July Mathieson affidavit’). Alan Mathieson, who was also a director of Mathieson Nominees, deposed that:
(a)in about June 2012, Mathieson Nominees and Ian Mathieson entered into a legal costs agreement with the Complainant (which was produced) pursuant to which the Complainant was entitled to payment for legal work done;
(b)in 2013, the Complainant advised the Mathieson parties on a settlement strategy that involved limiting his costs which was based on AJH accepting a settlement offer which AJH did not accept;
(c)in 2015, the Complainant offered to limit his legal costs on AJH’s appeal to the Court of Appeal ‘to the amount recovered (if ever) from AJH’;
(d)apart from the matters set out in (b) and (c) above, there was no agreement between the Mathieson parties and the Complainant that would limit or defeat the Complainant’s entitlement to costs;
(e)the Complainant refrained from billing for his work for several years;
(f)early in 2016, the Complainant issued the 15 February invoice to put ‘to rest’ any suggestion that the Mathieson parties were not entitled to have the taxable bill of costs taxed against AJH in circumstances where the Mathieson parties had not yet received a bill from the Complainant; and
(g)the Complainant told the Mathieson parties that ‘he did not expect the [15 February] invoice to be paid by us immediately, and that he was prepared to wait for payment for at least some time’.
The matter came for mention again before Gourlay JR on 20 July 2016 for debate about the form of order to be made arising from the 30 June mention (the ‘20 July mention’). Once again, the applicant appeared for AJH, contending that wider orders ought be made and criticising certain aspects of the 15 July Mathieson affidavit.
Referring to the applicant’s comments in relation to fraud at the 30 June mention, Gourlay JR once again warned the applicant against making such allegations without any basis:
JUDICIAL REGISTRAR: And those allegations seem to have been made on a basis without any evidence, and certainly I have to say, the allegation in relation to the back sheets, made absolutely contrary to the Bar rules […] Again, for a member of the Bar to make allegations of fraud against members of the legal profession without any basis that I can see, and you are open to arguing it another time, again is outrageous.
Following that exchange, the applicant initially stated he was not sure if he made allegations of fraud in relation to the 15 February invoice. After Gourlay JR read from the transcript of the 30 June mention, the applicant once again asserted that the 15 February invoice was fraudulent, saying:
(1)‘That’s precisely right. It’s a false document’.
(2)‘The use of the false document is a fraud but the fraud, as - I’m indebted to you for refreshing my memory of it - of the transcript - the argument that I put, and I most certainly maintain, is that the means that we used by [the Complainant] to persuade the court that there was no issue in respect of the indemnity principle involved the fraudulent use of what is a false document and the fraudulent use of a false document is - was put to highlight how the document came into existence’.
We pause to note that a further affidavit of Alan Mathieson sworn 27 July 2016 (’27 July Mathieson affidavit’) was also filed in the proceeding before Gourlay JR. It exhibited the draft of the 15 July Mathieson affidavit that Alan Mathieson sent to his brother Ian Mathieson for confirmation that Ian Mathieson agreed with its contents.
Following hearings on 28 July and 5 August 2016, Gourlay JR delivered a ruling on 31 August 2016 dismissing the applications made by AJH, including its applications for leave to cross-examine Alan Mathieson and to strike out the taxable bill of costs in light of a breach of the indemnity principle (‘Costs Court ruling’).[4] Gourlay JR reviewed the law and evidence relevant to the indemnity principle.
[4]Mathieson Nominees Pty Ltd & Anor v AJH Lawyers Supreme Court of Victoria (Supreme Court of Victoria, Costs Court, Gourlay JR, 31 August 2016).

At [71] of the Costs Court ruling Gourlay JR stated:
The [Mathieson parties] gave copies of a costs agreements [sic] and retainer letters to [AJH]. [AJH], on 30 June 2016, submitted that the costs agreements, retainer documents and invoices raise more questions than they answered and the documents contributed to [AJH’s] apprehension that the costs claimed in the bill exceeded the [Mathieson parties’] liability for costs to their legal practitioners. Contrary to the authorities counsel for [AJH, i.e. the applicant] submitted that as the total sum claim was so large the onus lies with the [Mathieson parties] to show that the indemnity principle has not been breached … He proposed that all documents (in both electronic and hard copy form) should be produced to the Prothonotary so that [AJH] could interrogate the meta-data and be satisfied that there was no tampering with the documents, that the terms of the retainer were as detailed by the documents and that a liability to pay the costs did exist so the indemnity principle had not been breached.[5]
[5]Ibid [71].
Gourlay JR then determined that this submission was contrary to the obligations on parties under the Civil Procedure Act 2010 (‘CPA’).[6] As to the substance of the indemnity principle argument and the alleged ‘fraudulent’ invoice, Gourlay JR concluded that:
Mr [Alan] Mathieson swears about the engagement of each lawyer for [Mathieson parties]. The engagement was always on the basis that the [Mathieson parties] would pay the solicitors for the work undertaken at the scale rate and at the rate agreed with Williams [their counsel]. He also swears that the [Mathieson parties] are and have always been obliged to pay the bills or accrued costs of their lawyers. They do not seek to recover any more than the bill of costs claims and that there is no agreement, understanding or arrangement that would enable this to occur. On this basis it is both just and fair to accept that the taxation of the costs orders will not result in a breach of the indemnity principle.[7]
[6]Ibid [72].
[7]Ibid [78].
On 14 September and 5 October 2016, AJH filed notices of review of the orders made by Gourlay JR on 31 August 2016. The Mathieson parties sought to have the reviews dismissed without a hearing in reliance upon the CPA (the ‘CPA application’). The CPA application was heard by Efthim AsJ on 1 and 2 March 2017 (the ‘CPA hearing’).
Mr Richard Cormie of AJH (who was the applicant’s instructor and solicitor client) gave evidence to support AJH’s opposition to the Mathieson parties’ CPA application to have the reviews dismissed. For the purpose of the CPA hearing, Mr Cormie referred to his earlier affidavit sworn 11 May 2016, which was filed in the Costs Proceeding following the 24 February mention before Gourlay JR. In this affidavit Mr Cormie deposed, among other things, that at the 24 February mention the applicant submitted that the 15 February invoice had not been paid and that the Complainant had made false representations to the Court to the effect that the Mathieson parties had paid the invoice.
At the CPA hearing, Mr Cormie gave evidence that, at the time of the 24 February mention and when swearing his affidavit on 11 May 2016, he believed the applicant’s submissions to be true. However, in cross-examination he said:
So on 24 February you had formed the view that the representation was false because the [Mathieson parties] had not paid the costs ?---Yes.
On what basis have you formed that view?---In terms of the cost from the invoice, the 599. The invoice itself says that the entitlement is outstanding, and [the applicant] made submissions at the hearing on the 24th that none of the invoices have been paid, and that it hadn’t been corrected by [the Complainant], who was appearing on the other side. […]
At the moment that [the applicant] made those submissions, that the invoices had not been paid, he was making a submission about which you had no knowledge?---Apart from the fact that the invoice itself said that there was no amount paid. […]
[The applicant] made a submission to the court that the invoice had not been paid, at a time when you and your client, who were instructing him, had no way of knowing whether or not that was correct?---Yes.
As at 11 May, when you swore the affidavit, did he have any different information?---I don’t believe so.
Is it not the fact that your client, through [the applicant], and then - as to what was said on that day, and then, through your affidavit here, had made allegations of a serious nature about matters which he could not know whether they were true or not?---We believed them to be true.
On what basis?---On the basis that it was a substantial invoice that - at the time it had been rendered, it certainly hadn’t been paid. The hearing was not long after it’d been rendered.
During the CPA hearing, the applicant stated:
[T]he reference to the bill for $352,000 [i.e. the 15 February invoice] which Mr Cormey [sic] gave quite a number of reasons for concluding there was a foundation to allege it was false. That’s the bill, as I say, which was produced avowedly, not for the purpose of demanding payment for the fine, but avowedly for the purpose of shutting AJH up in relation to their complaints about breach of the indemnity principle. Here is a bill, a new bill I’m producing for the purpose of laying to rest your allegations about the indemnity principle. That circumstance, rather than properly laying any such concern to rest, is a proper circumstance which would enlarge or enhance legitimate concerns about whether or not that bill was what it appeared to be being put forward on its face as, namely, a proper statement of fees due as between solicitor and own client in the very round sum of $120,000 and $200 for professional costs.
On 27 June 2017, Efthim AsJ granted the relief sought by the Mathieson parties.[8] In doing so, Efthim AsJ criticised the submissions advanced by the applicant (on behalf of AJH):
In my view, allegations of improper billing practices, on the basis of Mr Cormie’s evidence, had no foundation and should not have been made. Further, the invoice, whether it is false or not, has no bearing on whether the indemnity principle has been breached. [AJH] must have known that raising allegations about a false invoice would do nothing more than delay the taxation of the bill of costs and incur further costs … There has again been a breach of s 19 of the CPA.[9]

The VCAT proceeding

[8]Mathieson Nominees Pty Ltd & Anor v AJH Lawyers Pty Ltd t/a AJH Lawyers Barristers & Solicitors [2017] VSC 377, [121].

[9]Ibid [51]–[52].

On 7 July 2016, shortly after the 30 June mention, the Complainant formally complained to the VLSC about the applicant having made the fraud allegations at the 30 June mention (the ‘Complaint’). Following VLSC’s investigation into the applicant’s conduct,[10] VLSC made an application to VCAT on 28 June 2018 for the determination of two charges. On 19 October 2018, VLSC filed further and better particulars of each charge. The particulars referred to the fraud allegations made at the 30 June mention, the 20 July mention and during the CPA hearing set out above at [19], [24] and [32].
[10]Which is discussed further below in relation to proposed ground 6.
VLSC filed witness statements of Georjeana Brennan, an investigator in its employ, and of the Complainant on 7 December and 11 December 2018, respectively. On 22 March 2019, VLSC filed an outline of argument.
Following the adjournment of numerous directions hearings at the request of the parties, the application was fixed for hearing on 21 November 2022.
On 9 June 2022, VLSC filed a witness statement of Hannah Wynd, an investigator in its employ.
On 31 October 2022, VLSC withdrew one of the two charges that had been alleged (being charge 1). As a result, the issue dealt with at the hearing on 21 November 2022 was whether or not the charge was proven (being charge 2). The charge alleged:
[P]rofessional misconduct within the meaning of section 297(1)(a) and/or 298(b) of the Uniform Law by engaging in conduct in contravention of Rule 65 of the [Uniform Conduct Rules] by alleging fraud or serious misconduct:
(a)without reasonable grounds to believe that there was available material to support and give proper basis to the allegation; and/or
(b)without instructions from the client that the client wished to have the allegation made after the [applicant] had advised the client of the possible consequences for both the client and the matter if the allegation was not made out.
We pause to note that ss 297(1)(a) and 298(b) of the Uniform Law provide:
297 Professional misconduct
(1)For the purposes of this Law, “professional misconduct” includes—
(a)unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence;
298Conduct capable of constituting unsatisfactory professional conduct or professional misconduct
Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct—
…
(b)conduct consisting of a contravention of the Uniform Rules;
Rule 65 of the Uniform Conduct Rules provides:
A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:
(a)available material by which the allegation could be supported provides a proper basis for it, and
(b)the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
The VCAT hearing before the judge took place on 21 November 2022. The applicant appeared on his own behalf. VLSC was represented by counsel. Each of VLSC and the applicant filed a written outline of opening submissions. The applicant’s written outline contained both legal and factual submissions including sections headed ‘The facts’ and ‘The charge’. The next section comprising paragraphs [20] to [33] was headed ‘Falsity of the Complainant’s Tax Invoice’. Paragraph [27] then listed 10 matters which the applicant relied upon to ‘arguably support the conclusion that the [15 February invoice] is in truth neither regular nor valid and that it is not a genuine request for payment of the sum of $325,000 by 25 February 2016 or thereabouts nor is it an invoice of the kind that a solicitor requesting payment of an existing legal liability to pay costs might be expected to issue to a client’. In summary, the matters relied upon were:
(a)the email to the Mathieson parties attaching the 15 February invoice did not contain an explicit request for payment which it would be usual to include;
(b)it would be usual for a solicitor to invoice a client within a reasonable time of the liability arising: by contrast the 15 February invoice was issued two years later;
(c)it would be usual for a solicitor to follow up any overdue payment: in this case, no reminders for overdue payment were sent;
(d)a solicitor who had already issued a taxable bill of costs would ensure the amounts in each bill correspond precisely;
(e)a solicitor must claim costs in accordance with the basis for charging set out in the relevant costs agreement: an invoice for a ‘round’ sum (such as the 15 February invoice) is incapable of resulting from the genuine application of the Supreme Court scale;
(f)the reference in the 15 February invoice to ‘freight’ and ‘shipping’ was ‘inapposite in an invoice from a solicitor to a client which is intended as a genuine request for payment for legal services’; and
(g)the failure of the Complainant to sign the 15 February invoice rendered it a nullity at the election of the client.
The Complainant was called and cross-examined by the applicant at the VCAT hearing. We have read the cross-examination of the Complainant. With respect, the applicant attempted to raise many irrelevant matters with the Complainant. The applicant put many of the matters set out above to the Complainant, with most premised on the basis that the Complainant did not intend the 15 February invoice to have the effect it would appear to have on its face. For example, the applicant cross-examined the Complainant about the 10 day payment term, the absence of any follow-up for payment, the round sum claimed, and the absence of any signature.
In the course of cross-examination, the applicant referred the Complainant to paragraph [18] of the 15 July Mathieson affidavit where Alan Mathieson deposed:
[The Complainant] refrained from billing us for his work for several years. Although he never said so, Ian and I hoped and expected that he was planning to charge us only once the whole matter was at an end, and AJH has paid our taxed costs. However, early in 2016, [the Complainant] told Ian and myself in a conference that AJH seemed to be suggesting that it was not open to Mathieson Nominees to have its bills of costs taxed as against AJH in this proceeding, if [Mathieson Nominees] had not itself received a bill from its lawyers for those costs. He said words to the effect that in his opinion AJH’s suggestion was completely spurious, but that to put the matter to rest he would issue us with an invoice for about the sum which was claimed in the [taxable bill of costs]. He also said, however, that he did not expect the invoice to be paid by us immediately, and that he was prepared to wait for payment for at least some time. Although [the Complainant] did not say so, we continue to hope and expect that he may be willing to wait for payment until after recovery has been achieved from AJH.
The Complainant confirmed he said the things attributed to him in that paragraph and that ‘nothing was false’ in the 15 July Mathieson affidavit.
As noted in summary form at [21] above, Alan Mathieson deposed:
We accept that [the Complainant] is entitled to be paid by Mathieson Nominees for all of his work, subject only to the limitation that he is not entitled to seek payment in relation to his work in the Court of Appeal phase in any greater sum than is recovered from AJH for that work.
In relation to this evidence, in the course of cross-examination, the Complainant agreed that:
(a)he would not have looked to recover any part of the costs of the Court of Appeal proceeding until he had in fact recovered payment from AJH; and
(b)the 15 February invoice included ‘tens of thousands of dollars of work’ in relation to the Court of Appeal proceeding.
The Complainant was further cross-examined on the basis that the Court of Appeal costs were included in the 15 February invoice ‘at a time when [the Complainant had] no legal right to recover’ those fees from his clients. The Complainant did not agree. Although the transcription of his answers was far from complete, it appears he gave evidence that he was entitled to issue a bill to the Mathieson parties including the Court of Appeal costs.
In oral closing submissions, the applicant contended that there was a reasonable basis for him to allege the 15 February invoice was a fraudulent and false document including because it was ‘more than irregular, it was a nullity’. The applicant maintained that the Complainant was not entitled, as at 15 February 2016, to bill for the costs included in the 15 February invoice based on the 15 July Mathieson affidavit and the evidence of the Complainant. However, in making these submissions, applicant did not distinguish between the whole amount claimed or only part of the amount claimed, such as the Court of Appeal costs.
On 22 December 2022, the judge delivered the Liability Reasons concluding that the charge was proven and made orders to this effect (the ‘22 December orders’).
The application was fixed for further hearing on 14 February 2023 to hear submissions as to penalty (‘VCAT penalty hearing’). At that hearing, VLSC relied upon written submissions together with the affidavit of Ms Wynd affirmed 27 January 2023. The applicant replied upon written submissions and the affidavit of Mr Ian Upjohn KC sworn 6 February 2023, which provided evidence as to the applicant’s character (‘Upjohn affidavit’).
On 23 February 2023, the judge delivered the Penalty Reasons concluding that the applicant should be reprimanded and prohibited from applying for a practising certificate for a period of 12 months commencing 16 April 2023.
Structure of these reasons and relevant law
In light of the challenges to the reasons of the judge, we shall first address the Liability Reasons and the proposed grounds of appeal that relate to those reasons. We will then address the Penalty Reasons and the proposed grounds of appeal that relate to those reasons. Before doing so, it is appropriate to set out the relevant legal principles which apply to all the proposed grounds of appeal.
First, pursuant to s 14C of the Supreme Court Act 1986, this Court can only grant an application for leave to appeal from VCAT if it is satisfied that the appeal has a real prospect of success.[11] Thus an applicant may only be granted leave to appeal if this Court is satisfied that the appeal has real (as opposed to fanciful) prospects of success; even if the Court is so satisfied, there remains a residual discretion to refuse leave.[12]
[11]Metricon Homes Pty Ltd v Softley (2016) 49 VR 746, [5] (Warren CJ, Tate JA and Robson AJA agreeing); [2016] VSCA 60.
[12]Qu v Wilks [2023] VSCA 198, [67] (Beach, Kennedy and Walker JJA).
Second, under s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’), this Court’s jurisdiction is limited to the resolution of questions of law. Such a limitation has been said to impose a ‘significant constraint’ upon the role of the Court in reviewing the decision and reasons of an administrative tribunal.[13] This Court summarised the principles in Secretary to Department of Justice and Regulation v OUX (a pseudonym) (‘OUX’):
This “practical as well as principled restraint” means that the Court “will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts”. Hence, the reasons of the Tribunal for the decision under review “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”. The reality is “that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.[14]
[13]Secretary to Department of Justice and Regulation v OUX [2018] VSCA 178, [36] (Priest, Beach and Weinberg JJA) (citations omitted) (‘OUX’) citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 286 (Neaves, French and Cooper JJ); [1993] FCA 456.
[14]OUX [2018] VSCA 178, [36] (Priest, Beach and Weinberg JJA) (citations omitted). See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6.
Third, identification of a question of law is critical. As was put by Garde AJA (with whom Tate and Kyrou JJA agreed) in Patsuris v Gippsland and Southern Rural Water Corporation:
Section 148 does not confer a general right of appeal on the merits of a case. If no threshold question of law can be identified, the case is not suitable for the type of restricted appeal that s 148 provides.
The “question of law” requirement in s 148 confers a limited capacity on the Court to review findings of fact made by a Tribunal member. The requirement in s 148 to state a question of law is germane to the capacity of the Court to review findings of fact made by a Tribunal member. The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself.[15]
[15](2016) 218 LGERA 167, 179 [43]–[44] (Garde AJA, Tate and Kyrou JJA agreeing); [2016] VSCA 109.

Fourth, the primary question for this Court when investigating whether an administrative tribunal has made a legal error in making a finding of fact or drawing an inference from facts is whether ‘it was open to the Tribunal to conclude as it did on the evidence’.[16] As was further explained in Karakatsanis v Racing Victoria Ltd (‘Karakatsanis’):
If it was so open then the Tribunal did not commit an error of law in reaching the conclusion that it did, albeit that it may (or may not) have erred on the facts. The appeal was not concerned with the weight of the evidence insofar as that bore upon the assessment of the relative weight of competing considerations. It was concerned with the question of whether the Tribunal’s conclusion was properly open to it.[17]
[16](2013) 42 VR 176, 186 [21] (Osborn and Beach JJA); [2013] VSCA 305 (‘Karakatsanis’). See also Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, 59 [44] (Warren CJ, Chernov JA and Bell AJA agreeing); [2007] VSCA 163; Transport Accident Commission v Hoffman [1989] VR 197, 199 (Young CJ and McGarvie J).
[17]Karakatsanis (2013) 42 VR 176, 186 [21] (Osborn and Beach JJA); [2013] VSCA 305.
Fifth, where the Tribunal’s identification and application of the appropriate statutory provisions is impugned, it must be satisfied that the Tribunal did other than apply the correct terms of the section before this Court will interfere with the decision. The following statement of Smith J (with whom Adam J agreed) in Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works,[18] which has subsequently been applied to VCAT,[19] is apposite:
[T]he appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal’s reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.[20]
[18](1971) 38 LGRA 6 (‘Portland Properties’).
[19]See, eg, Hoskin v Greater Bendigo City Council (2015) 48 VR 715, 745 [100] (Warren CJ, Osborn and Santamaria JJA); [2015] VSCA 350.
[20]Portland Properties (1971) 38 LGRA 6, 18.
Finally, the Tribunal’s task is to resolve the issues that have been presented to it by the parties. It has been said that an appeal court must “recognise the forensic realities of the way in which the case was put to the Tribunal”, which will inform the way that a tribunal responds in its reasons.[21] This consideration is particularly relevant where there is a challenge to the sufficiency of the decision-maker’s reasons.[22]
[21]Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442, [59] (Osborn J).
[22]Dressing v Porter [2006] VSCA 215, [26] (Ashley JA, Callaway and Buchanan JJA agreeing) (‘Dressing’).

The Liability Reasons

In the Liability Reasons the judge sets out:
(a)the factual background to the charge and the details of the charge;[23]
(b)all relevant provisions of the Uniform Law and the Uniform Conduct Rules and the applicable principles as to burden and standard of proof;[24] and
(c)the contentions of the parties.[25]
[23]Liability Reasons, [3]–[29].
[24]Ibid [30]–[41].
[25]Ibid [42]–[61].
The judge then analysed the facts in light of the relevant law concluding that she was satisfied, on the balance of probabilities, that the evidence supported a finding that the applicant was guilty of the charge, being professional misconduct within the meaning of both ss 297(1)(a) and 298(b) of the Uniform Law.[26]
[26]Ibid [62]–[139].
As part of her analysis, the judge concluded that in order to determine whether the applicant was guilty of professional misconduct in relation to the charge, the questions for the Tribunal in light of ss 297(1)(a) and 298(b) of the Uniform Law and r 65 of the Uniform Conduct Rules were:
(A) Did the [applicant] believe on reasonable grounds that:
(i)the available material by which the allegation could be supported provided a basis for that allegation; and
(ii)the client wished the allegation to be made, after having been advised of the seriousness of the allegation and the possible consequences of the client and the case if it was not made out?
If not, then:
(B) Was the conduct substantial or consistent?[27]
For convenience, we will refer to these two questions as ‘Question A’ and ‘Question B’ respectively.

Question A — Reasonable belief?

[27]Ibid [86].

The judge addressed Question A at [89]–[128] in the section headed ‘Question A – Reasonable belief [r 65]’. It is broken down into two main parts, consistent with the two sub-questions of Question A. Question A(i) is addressed at [89]–[118] and Question A(ii) is addressed at [119]–[128]. We will deal with each in turn.
As to Question A(i), the judge first referred to the nature of r 65, namely that it was an objective standard for the formation of a reasonable belief, not of a reasonable person but a ‘reasonable legal practitioner’ and whether, on the evidence available at the time the allegations were made, there was a proper basis for the relevant allegation.[28]
[28]Ibid [89]–[90].
The judge identified and addressed each of the factors the applicant relied upon to support his submission that the available material by which the allegation could be supported provided a basis for that allegation (as summarised at [41] above).[29]
[29]The judge set out the applicant’s contentions at [57]–[60] of the Liability Reasons.
First, she was not satisfied that the Complainant falsified the 15 February invoice in order to rebut the indemnity principle, correctly noting that the onus was always on AJH to rebut the indemnity principle. The judge concluded that, even if the Complainant was under the misapprehension that the Mathieson parties bore the onus of rebutting the indemnity principle, it was contrary to any reasonable interpretation of the relevant facts to conclude that the Complainant falsified the 15 February invoice to prove his retainer with the Mathieson parties and thus his entitlement to legal fees. This was in circumstances where:
(a)the Complainant also gave the applicant copies of the actual retainer letters between his firm and the Mathieson parties;
(b)liability is not created by the sending of an invoice but because of a preceding retainer or costs agreement; and
(c)Alan Mathieson had sworn in the 15 July Mathieson affidavit and the 27 July Mathieson affidavit that such retainer existed and was valid, both of which were available to the applicant at the time.[30]
[30]Ibid [94]–[97].
As a result, the judge concluded that the most sensible conclusion as to why the Complainant issued the 15 February invoice was to provide additional evidence to Gourlay JR in addition to the existing costs agreement. Further, the judge found it was reasonable that the Complainant had not created the invoice at an earlier stage as it was natural that additional fees would accrue due to the ongoing nature of the relevant proceeding.[31]
[31]Ibid [98].
Second, the judge did not accept the applicant’s submission that there had been a delay of two years between when the invoice could have been created and when it was created (which provided a basis for alleging fraud). This is because the 15 February invoice was created only three months after the taxable bill of costs. As noted above, the 15 February invoice recorded on two occasions that it was prepared ‘as per bill of costs dated 16 November 2015’ but included all work up to 9 February 2016. The judge concluded that, even if the delay were two years, that was not a proper basis for alleging fraud.[32]
[32]Ibid [99].
Further, the judge concluded that, even if the timing of the 15 February invoice was ‘convenient’ to the Complainant and the Mathieson parties, that was not sufficient in all of the relevant circumstances to suggest the invoice was fraudulent. The judge referred to the fact that this conclusion was consistent with the views expressed by Gourlay JR at the 30 June mention, who did not accept the applicant’s allegation of fraud in relation to the 15 February invoice, stating ‘I don’t believe that it is a fraud’. The judge also noted that, despite Gourlay JR’s comments, the applicant continued to repeat the fraud allegation.[33]
[33]Ibid [100]–[101].
Third, the judge considered it to be of ‘significance in determining that [the applicant’s] belief in the allegation was not reasonable’ that the applicant stated at the 30 June mention that an affidavit confirming the Mathieson parties’ liability to pay the Complainant’s legal costs would be satisfactory to discharge his allegation. Alan Mathieson had deposed to this effect in: (a) the 15 July Mathieson affidavit which was provided to the applicant prior to him repeating the fraud allegation at the 20 July mention; and (b) the 27 July Mathieson affidavit, both of which were provided to the applicant prior to him repeating the fraud allegation at the CPA hearing. The judge concluded that this demonstrated recklessness by the applicant in continuing to repeat the fraud allegations.[34]
[34]Ibid [103].
Fourth, the judge did not accept the applicant’s submission that the ‘rounded’ amount in the 15 February invoice ($320,000) was ‘evidence that it is fraudulent, or that the figures bear no connection to those on the taxable bill [of costs]’.[35] This is in light of the Complainant’s explanation to the effect that the 15 February invoice represented the total figure for solicitors’ costs in the taxable bill of costs excluding disbursements ($325,281.38) rounded down to the nearest $10,000 ($320,000) plus GST.[36]
[35]Ibid [104].
[36]Ibid.
Fifth, the judge did not accept the applicant’s contention that the 15 February invoice was not and did not purport to be calculated by reference to the Supreme Court scale of costs. This was for a number of reasons including that the 15 February invoice referred to the taxable bill of costs and that the costs agreement between the Complainant and the Mathieson parties made specific reference to the Supreme Court scale as being applicable to that agreement. The judge accepted that the 15 February invoice was based upon the Supreme Court scale despite it lacking express reference to that scale.[37]
[37]Ibid [105]–[106].
Sixth, the judge did not accept that two other matters raised by the applicant supported a proper basis for making a fraud allegation in respect of the 15 February invoice: namely, that the 15 February invoice included reference to ‘freight and shipping’, and that it was not signed by the Complainant. As to the first matter, the judge concluded that these items were included because the 15 February invoice had been created using the MYOB software which contains pre-existing invoice templates for freight and shipping but that the invoice did not have any figures recorded against these items.[38] As to the fact that the 15 February invoice was not signed, the judge concluded, in substance, that this was not a matter which any reasonable practitioner would take to demonstrate that an invoice was false or fraudulent.[39]
[38]Ibid [108].
[39]Ibid [109]–[110].
Relatedly, the judge also found that the applicant’s submissions as to what a solicitor would ‘usually’ do in respect of an invoice were ‘similarly unhelpful’ in concluding that the 15 February invoice was fraudulent — even if the invoice was unusual, ‘that does not make it fraudulent’.[40]
[40]Ibid [107].
Seventh, the judge referred to the cross-examination of the Complainant before the Tribunal. The judge concluded that the Complainant was a reliable witness and that the applicant in his cross-examination ‘regularly attempted to lead the witness down unnecessary and even inappropriate paths’.[41] The judge noted that the applicant also suggested in cross-examination that the Complainant allowed Alan Mathieson to file his affidavits knowing they were false.[42] The judge concluded that the applicant’s submissions at the VCAT hearing and his cross-examination of the Complainant did not persuade her that the 15 February invoice was in fact fraudulent nor that the applicant ‘could have had a reasonable belief in this allegation at the time it was made’.[43]
[41]Ibid [112].
[42]Ibid [114].
[43]Ibid [111].
As a result, the judge concluded:
116The various pieces of evidence in this matter available at the time the allegations were made — including the [15 February invoice], the taxable bill [of costs], the affidavits of Alan Mathieson, the [applicant’s] awareness of the costs agreement and continual representation of Mathieson [Nominees] by the Complainant, and the initial comments of Gourlay JR made prior to the repetition of the allegations — all lead to the conclusion on an objectively reasonable construction that the [15 February invoice] was not fraudulent. There was no proper basis for the [applicant] to hold any contrary belief.
Having found Question A(i) (i.e. r 65(a)) was not satisfied, the judge’s consideration of Question A(ii) (i.e. r 65(b)) was strictly unnecessary. Nevertheless, the judge went on to find there was not enough evidence upon which the applicant could reasonably conclude his client wished for the fraud allegations to be made after being advised of the seriousness of that allegation and of the possible consequences for the client if it was not made out (consistent with r 65(b)).[44] This finding was the subject of proposed ground 6. We will address the judge’s reasons in relation to Question A(ii) in the context of proposed ground 6 below.
[44]Ibid [125].
Further, the judge went on to consider whether r 66 of the Uniform Conduct Rules could protect the applicant from a breach of r 65.[45] Rule 66 provides that:
A barrister may regard the opinion of the instructing solicitor that material which is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which rules 64 and 65 apply, as a reasonable ground for holding the belief required by those rules (except in the case of a closing address or submission on the evidence).
[45]Ibid [126].
The judge noted that r 66 expressly provides that such material must be ‘material which appears to the barrister from its nature to support an allegation’ which necessitated independent consideration by the barrister. The judge reiterated that, for the reasons already provided in [92]–[118] of the Liability Reasons, there was ‘no reasonable basis for the conclusion that the [15 February invoice] was fraudulent’.[46] She continued that, even if r 66 requires a less detailed consideration by a barrister as to the evidence supporting an allegation, for the same reasons, there was nothing on the face of the 15 February invoice or in the 15 February email to support the fraud allegations in fact made.[47]
[46]Ibid [127].
[47]Ibid [126]–[127].
As a result, the judge was satisfied that the applicant’s conduct in making unsubstantiated allegations of fraud against another legal practitioner constituted a breach of r 65, thus enlivening s 298(b) of the Uniform Law.[48]

Question B — Substantial or consistent?

[48]Ibid [128].

The judge addressed Question B at [129]–[138] of the Liability Reasons. The judge noted that this issue of whether the conduct was ‘substantial or consistent’ had to be determined in order to conclude that the conduct rises to the level of ‘professional misconduct’ pursuant to s 297(1)(a) of the Uniform Law.[49]
[49]Ibid [129].
The judge concluded that the applicant’s conduct was both substantial and consistent. She relied upon the following factors:
(a)the fraud allegations were consistent, having exceeded a mere incidental or minor repetition: they were repeated at least six times throughout the 30 June mention, at least twice at both the 20 July mention and the CPA hearing;
(b)the conduct of the applicant was substantial: the applicant continued to repeat the fraud allegations after Gourlay JR gave multiple warnings including that the allegation of fraud was ‘made on a basis without any evidence’, ‘absolutely contrary’ to the Uniform Conduct Rules and ‘outrageous’. Such warnings would indicate to a reasonable practitioner a need to proceed with caution (which the applicant did not do), and adds greatly to the seriousness of the conduct to the point that it becomes substantial;
(c)in these circumstances, the conduct of the applicant ‘demonstrates a blatant disrespect, not only for the Complainant as [the applicant’s] fellow legal practitioner, but ultimately a disrespect for the Court. This strikes at the heart of the duties of a legal practitioner as an officer of the Court and is, most certainly, substantial’;
(d)the applicant repeated the fraud allegations despite the contents of the 15 and 27 July Mathieson affidavits; and
(e)the fact that, in his 27 June 2017 reasons, Efthim AsJ commented on the unsubstantiated and inappropriate nature of the fraud allegations to the effect that the allegations of improper billing practices should not have been made, that they had no bearing on the indemnity principle and that AJH must have known raising those allegations would do nothing more than cause delay and incur further costs.[50]
[50]Ibid [132]–[136].
Accordingly, the judge concluded that she was satisfied, on the balance of probabilities, that the evidence supported a finding that the applicant was guilty of the charge, being professional misconduct within the meaning of both ss 297(1)(a) and 298(b) of the Uniform Law.[51]
[51]Ibid [139].

Proposed grounds 1 to 10: overview

In the course of oral argument, the applicant abandoned proposed ground 1. As noted above, proposed grounds 2 to 10 relate to the Liability Reasons. They may be summarised as follows:
(a)whether the judge erred in construing r 65(a) and whether the judge addressed the right question in applying that rule (proposed grounds 2 and 3);
(b)whether the judge erred in failing to consider the combined effect of the various matters that the applicant relied upon as providing a reasonable basis for the fraud allegations (proposed ground 4);
(c)whether the judge erred in considering the three occasions on which the applicant made the fraud allegations as if each occasion stood alone and did not constitute a single course of conduct and in not considering the fact that these statements were made at an early stage of the Costs Proceeding (proposed grounds 5 and 7);
(d)whether the judge erred in finding that the applicant failed to comply with r 65(b) (proposed ground 6);
(e)whether the judge erred by not finding that the charge was not proved when that was the only possible conclusion open on the evidence (proposed ground 8);
(f)whether the judge erred by failing to give adequate reasons with respect to one piece of evidence (proposed 9); and
(g)whether the judge erred by precluding the applicant from asking certain questions in cross-examination (proposed ground 10).
In the course of oral argument, counsel for the applicant focused his challenge to three main issues.
First, the applicant submitted that the judge’s analysis in the Liability Reasons was directed at the wrong questions. The applicant submitted that the judge focused on whether the 15 February invoice was a fraudulent or a false document and/or whether the applicant had a reasonable belief that the 15 February invoice was a fraudulent or a false document. Rather, the applicant submitted that r 65 required the judge to consider whether the applicant believed on reasonable grounds that the available material by which the allegation could be supported provided a proper basis for that allegation. The applicant referred in particular to paragraph [116] of the Liability Reasons.

Second, the applicant submitted that in considering the wrong question, the judge had looked at each of the features of the 15 February invoice relied upon by the applicant individually rather than in combination. The applicant asserted this was evident from the judge’s reasoning from [92]–[118] of the Liability Reasons, and in particular, her conclusion at [116].
Third, the applicant contended that on the evidence before the judge the only conclusion open was that there was a reasonable basis for alleging that the 15 February invoice was a fraud or a sham. In doing so, the applicant relied upon the decision of the High Court in Raftland Pty Ltd v Federal Commissioner of Taxation (‘Raftland’)[52] to support the contention that a finding of a sham or false document has two requirements: first, that a document is wrong or inaccurate and second, that the document is put forward by the author knowing of the wrongness or inaccuracy. In oral argument, counsel initially submitted that the relevant inaccuracy was that the 15 February invoice represented that it was payable within 10 days, relying upon the words ‘Terms: Net 10’ in the 15 February invoice. Later, counsel sought to rely upon several alleged inaccuracies as giving rise to falsity and sham.
[52](2008) 238 CLR 516; [2008] HCA 21 (‘Raftland’).
While the applicant contended there was an overlap between these main challenges and proposed grounds 2 to 10, we will address:
(a)the first main challenge in dealing with proposed ground 2 and 3;
(b)the second main challenge in dealing with proposed ground 4; and
(c)the third main challenge in dealing with proposed ground 8.

Proposed grounds 2 and 3

Proposed grounds 2 and 3 are as follows:
2.The [judge] erred in law by considering whether the matters relied on by the [a]pplicant as providing a reasonable basis for alleging fraud established that the Complainant’s invoice was false and fraudulent rather than addressing, as she ought to have done, whether those matters provided a reasonable basis for the Applicant making that allegation.
3.The [judge] erred in law by considering whether the matters relied on by the [a]pplicant as providing a reasonable basis for alleging fraud justified a reasonable belief by him that that the Complainant’s invoice was false and fraudulent rather than addressing, as she ought to have done, whether those matters provided a reasonable basis for the [a]pplicant making that allegation.

The contentions of the parties

We have set out above at [85] the basis upon which the applicant submitted that the judge’s analysis was wrong, namely by considering whether the 15 February invoice was a fraudulent or a false document (proposed ground 2) and/or whether the applicant had a reasonable belief that the 15 February invoice was a fraudulent or a false document (proposed ground 3). The applicant submitted that, pursuant to r 65, the judge should have considered whether the applicant had a proper basis for the fraud allegations. The applicant noted that the judge concluded that she was not satisfied that the Complainant falsified the 15 February invoice in order to rebut the presumption of the indemnity principle at [93] of the Liability Reasons.
In relation to proposed ground 2, the applicant submitted that the judge misstated several of the applicant’s submissions before VCAT as being directed to the ultimate question of the truth of the fraud allegations with respect to the 15 February invoice at [92], [57], [58] and [60] of the Liability Reasons. The applicant contended that this error was repeated throughout the Liability Reasons in the judge’s consideration of the various factors relied upon by the applicant.[53]
[53]Liability Reasons, [97], [98], [100], [105], [107], [108], [111], [116].
In relation to proposed ground 3, the applicant contended that the judge asked a fundamentally inappropriate and irrelevant question, namely whether the applicant had ‘a proper basis for a belief or a reasonable belief or a conclusion (reached by himself)’ that the 15 February invoice was false or fraudulent.[54] Rather, the judge should have asked whether the applicant had a reasonable basis to allege that the 15 February invoice was a fraudulent or a false document. The applicant submitted it was not appropriate for an advocate to assume the function of a judge or to refrain from putting a case unless the advocate believes the arguments to ultimately be correct and that this was the effect of the judge’s analysis.
[54]Referring to ibid [103], [111], [116], [117].
At the hearing before this Court, the applicant’s counsel focused on [116] of the Liability Reasons. We pause to note that this paragraph was also the subject of submissions under proposed ground 4, which we will address below. As noted above, this paragraph states:
The various pieces of evidence in this matter available at the time the allegations were made - including the [15 February invoice], the taxable bill [of costs], the affidavits of Alan Mathieson, the [applicant]’s awareness of the costs agreement and continual representation of Mathieson [Nominees] by the Complainant, and the initial comments of Gourlay JR made prior to the repetition of the allegations - all lead to the conclusion on an objectively reasonable construction that the [15 February invoice] was not fraudulent. There was no proper basis for the [applicant] to hold any contrary belief.[55]
[55]Liability Reasons, [116].
Counsel submitted that this paragraph discloses error because the judge reached a conclusion that the 15 February invoice was not fraudulent, and therefore the applicant could not have had a reasonable basis for his belief. The applicant contended that this method of reasoning is ‘inappropriate’ because it puts the matter ‘the wrong way around’ and was an error of law in itself. The applicant submitted that to jump from a finding that the 15 February invoice ‘was not fraudulent’ to the conclusion that there ‘was no proper basis for the [applicant] to hold any contrary belief’ ignores the fact that different minds may have different views of facts. The applicant contended that this demonstrates an error of law due to the absence of reasoning from the ‘wrong issue’ to the ultimate conclusion.
VLSC addressed proposed ground 2 and 3 together. In summary, VLSC submitted that the judge properly analysed the question raised by the charge. In support of its position, VLSC relied upon the actual order made, the recording of the applicant’s submissions at [55]–[56] of the Liability Reasons, the language in the Liability Reasons, including that the judge posed the correct question at [86], stated the correct position at [89]–[90] and [103], and in her finding at [111].
Further, VLSC contended that the applicant’s case before the Tribunal was that the 15 February invoice was in fact fraudulent and hence his allegations had a proper basis. In oral argument, counsel for VLSC referred to certain paragraphs of the applicant’s written submissions before VCAT and his cross-examination of the Complainant to demonstrate that the applicant was making this positive case. VLSC submitted that it sought to meet the applicant’s case by raising matters in response to those raised by the applicant in order to establish that the 15 February invoice was not fraudulent and to prove that the factors identified by the applicant did not provide a proper basis for so alleging. VLSC submitted that, for these reasons, it was unsurprising that the judge analysed the parties’ submissions in the terms that she did.
VLSC addressed the particular paragraphs of the Liability Reasons which the applicant submitted reveal an error. As to [93] (which says, in substance, that the judge was not satisfied that the Complainant falsified the 15 February invoice to rebut the presumption of the indemnity principle) VLSC submitted that paragraph was a conclusion on the applicant’s submission and not the ultimate question that the Tribunal answered. So too, VLSC submitted, were several other paragraphs that each analyse and make findings with respect to the applicant’s submissions,[56] with the conclusion on this point appearing at [111]. As to the ultimate question, VLSC submitted that [116] contains a finding that, on the basis of the facts at the time the applicant made the fraud allegations, there was no proper basis for the applicant to believe that the 15 February invoice was fraudulent.

Consideration

[56]Liability Reasons, [97], [98], [100], [105], [107], [108], [117].

We would grant leave to appeal in relation to proposed grounds 2 and 3 but dismiss the appeal in relation to them.
The Liability Reasons clearly disclose that the judge was aware of, and applied, the correct legal test. This is evident from Question A identified by the judge for determination by the Tribunal in respect of r 65.[57] Question A(i), which is set out at [62] above, relevantly states ‘Did the [applicant] believe on reasonable grounds that: (i) the available material by which the allegation could be supported provided a basis for that allegation’. During the course of oral argument, counsel for the applicant agreed that the judge correctly stated the question at [86(a)(i)] and [103].
[57]Ibid [86].
Thus, the judge posed the correct legal question in light of r 65. Further, her analysis is consistent with answering that question. This is evident from a number of other paragraphs of the Liability Reasons including [89] and [90] which refer to the need for the formation of a ‘reasonable belief’ that the allegation can justifiably be made and that there existed an ‘objectively reasonable’ basis to conclude the 15 February invoice was fraudulent (referred to in [63] above).
As to [116], we do not accept the submission of the applicant that, in the context of the Liability Reasons as whole, this paragraph evidences that the judge posed and answered the wrong question. Rather, the judge considered all the factors relied upon by the applicant to assert that the 15 February invoice was false or there was a proper basis for him to allege that it was false. We can see no error in the judge’s reasoning in this regard.
It is true that on occasions the judge considered whether the 15 February invoice was fraudulent or false. This appears to be because, while the ultimate issue for VCAT was whether the applicant believed on reasonable grounds that the material available provided a proper basis for the fraud allegations, it was implicit and/or inherent in the submissions of the applicant (who appeared for himself before VCAT) that the 15 February invoice was a fraudulent and false document and that he believed it to be so. This is evident in the section of the applicant’s written opening before VCAT which, as noted above, addressed the principal factual issues in dispute under the heading ‘Falsity of the Complainant’s Tax Invoice’. We have already set out the substance of paragraph [27] of the applicant’s written VCAT opening at [41] above. The applicant also submitted that the language and title of the 15 February invoice ‘superficially indicates that it is a regular and valid invoice comprising a genuine request for payment’. Further, he also submitted:
It is reasonably arguable that the language of the [15 February invoice], and in particular its title, superficially indicates that it is a regular and valid invoice comprising a genuine request for payment of the amount of the invoice within 10 days or thereabouts and which thus meets the forensic purpose for which the Complainant brought it into existence. Proper analysis in light of the surrounding circumstances … arguably shows that the [15 February invoice] is not such a document.
While this paragraph (like [27] of the applicant’s written opening before VCAT) refers to the 15 February invoice ‘arguably’ not being a fraudulent or false document, it was implicit in the applicant’s submissions before VCAT that he was maintaining that the invoice was a fraudulent or false document. This is evident from the applicant’s cross-examination of the Complainant and his closing oral submissions. Indeed, the applicant submitted that the debate before the judicial registrar took place in circumstances where ‘everybody knew’ that the 15 February invoice was in fact more than irregular ‘it was a nullity’.
In our view, it was for this reason that the judge considered whether the 15 February invoice was fraudulent and the applicant’s belief on that question. We refer to the judge’s analysis in [103] which concluded that the applicant’s belief in the fraud allegations was not reasonable and the following similar observation in [111]:
The [applicant’s] submissions at the hearing and in particular his cross-examination of the Complainant have not persuaded the Tribunal that the [15 February invoice] was fraudulent nor that the [applicant] could have had a reasonable belief in this allegation at the time it was made.[58]
[58]Ibid [111].
Rule 65 refers to the barrister’s belief on reasonable grounds that the available material by which the allegation of fraud could be supported provides a proper basis for the allegation, rather than a reasonable belief that there has been fraud. Nevertheless, the applicant chose to mount his defence by contending that he believed the 15 February invoice was a fraud and that he had a reasonable basis for that belief. The factors relied on by the applicant to support the reasonableness of his belief that the invoice was fraudulent were the same matters that were said to provide a proper basis for the allegation. It is both unsurprising, and not indicative of any legal error, that the Tribunal considered whether or not the applicant had a reasonable basis for this belief. The Tribunal resolved that question adversely to the applicant. In doing so, the Tribunal responded to the arguments the applicant sought to make.
Such findings were not inappropriate in light of the submissions in fact made by the applicant. Further, such findings do not mean that the judge was not at all times cognisant of the true question to be answered (being what she referred to as Question A(i)) and in considering the applicant’s submissions in answer to that question. We refer to [99]–[100] above.
As a result, we can see no error of law in the Liability Reasons in the question posed and answered by the judge in respect of r 65. Further, viewed in the context of the Liability Reasons as a whole, we can see no error in the reasoning of the judge at [116]. In our view, the applicant’s analysis of [116] sought for this Court to construe the Liability Reasons in a manner which is inconsistent with the principles summarised in OUX, set out in [54] above. We shall deal with the applicant’s assertion relating to [116] further when addressing proposed ground 4.
For completeness, we also note that in oral argument counsel for the applicant indicated that [116] raised an error of law on the basis that the judge’s reasons were insufficient or inadequate. No such question of law was raised in the application for leave to appeal, nor in the applicant’s written case. With respect, it was not made plain whether this assertion concerned proposed ground 2, 3 or 4. In any event, for the reasons given above and below in relation to proposed ground 4, we are not satisfied that the judge made such an error of law. The reasons reveal the judge’s path of reasoning leading to her ultimate conclusion. Further, we refer to comments in the authorities to the effect that a question of law does not arise merely because there is an error in the logic of a tribunal’s reasons.[59]
[59]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355–6 (Mason CJ with whom, on this point, Brennan, Toohey and Gaudron JJ agreed); [1990] HCA 33; Victoria v Turner (2009) 23 VR 110, 138 [108] (Kyrou J); [2009] VSC 66.
As a result, we would grant leave to appeal in relation to proposed grounds 2 and 3 but dismiss the appeal.

Proposed ground 4

Proposed ground 4 is:
4.The [judge] erred in law by considering each of the matters relied on by the [a]pplicant as providing a reasonable basis for alleging fraud as if each of those matters stood alone rather than addressing, as she ought to have done, whether those matters, or any one or more of them, together provided a reasonable basis for the [a]pplicant making that allegation.

The contentions of the parties

In summary, the applicant submitted that the judge did not consider the combined effect of each matter relied upon by the applicant to support his contention that the 15 February invoice was false (or that he had a proper basis for making such an allegation). The applicant asserted that assessing all the criticisms of the 15 February invoice together (or in different combinations) justifies greater suspicion as to the character of the invoice. As a result, such an analysis would increase the strength of the reasonable basis for the applicant to have made the fraud allegations.
As noted above, during oral argument the applicant addressed the judge’s ultimate conclusion at [116]: he cavilled at the way it is expressed as a ‘negative’ and submitted that the reasoning is the ‘the wrong way around’. Although it was not entirely clear, we understood the applicant to have asserted that the alleged inappropriate reasoning in paragraph [116] assumed additional significance because, as noted below, VLSC submitted that this paragraph demonstrates the judge considered the combined effect of all the pieces of evidence. On this basis, the applicant submitted that the error in the judge’s reasoning is evident from her use of the negative formulation, which ‘tends to disguise’ the fact that the judge conducted a seriatim analysis of individual points. The applicant says that there is no express reasoning on the combinatorial analysis, and just because [116] uses the word ‘all’ (in reaching the conclusion that the 15 February invoice is not fraudulent) is to ‘put it round the wrong way’. He submitted that this proposed ground 4 addresses an ‘inappropriate method of reasoning, and that is an error of law in itself’.
VLSC characterised proposed ground 4 as the applicant impermissibly seeking a factual appeal: matters of weight are for the decision-maker and do not constitute questions of law. Further, VLSC contended that the judge’s ultimate conclusion at [116] of the Liability Reasons was expressed with respect to ‘all’ the ‘various pieces of evidence in this matter’. In oral argument, VLSC said [111] of the Liability Reasons — where the judge found the applicant’s submissions and cross-examination of the Complainant did not persuade the Tribunal that the 15 February invoice was fraudulent or that the applicant could have a reasonable belief in the allegation — demonstrated the judge considered the combined effect of the submissions and evidence.

Consideration

In our view, proposed ground 4 does not have a real prospect of success.
First, we are not satisfied that proposed ground 4 identifies a question of law. As noted above, counsel for the applicant referred to the judge having demonstrated an ‘inappropriate’ or ‘wrong’ process of reasoning. However, in our view, the applicant failed to establish, with reference to the authorities, how this criticism of the judge’s reasoning raised a question of law. In our view, by proposed ground 4, the applicant is seeking to appeal against the manner in which the judge weighed and evaluated various pieces of evidence.
It follows that we are not satisfied that the applicant has established a vitiating error of law. For completeness, we note that we did not understand the applicant to have submitted that the judge’s reasoning was illogical or irrational in the legal sense. As a result, proposed ground 4 does not have a real prospect of success and we would reject leave to appeal with respect to it.
Second and in any event, in our view, the judge did consider the combined effect of the various matters the applicant relied upon. As set out above,[60]the judge identified the factors which the applicant relied upon as the basis for his belief in the fraud allegations and/or that the 15 February invoice was fraudulent (and as the basis for a person to believe on reasonable grounds). The judge made detailed findings in respect of each of them.
[60]See above at [41], [64]–[74].

Second, the judge observed that while legal disciplinary proceedings are not criminal in nature, it is well-established that criminal sentencing principles apply by analogy. She referred to the relevance of proportionality and parity, before setting out a number of cases in which courts have denounced unethical legal practitioners’ conduct and removed them from the Supreme Court Roll.[114] The judge concluded that:
43…The trust vested in legal practitioners by the community in the course is the moral standard which is breached when a practitioner engages in professional misconduct. Repeated breaches of that trust will increase the gravity of the overall conduct.
44The extended period of time over which the [applicant] repeatedly engaged in the conduct and his inability in that time to comprehend the unethical nature of the conduct (despite warnings from the Bench), is therefore highly relevant. I also acknowledge the observations of the Bar Council in its decision referred to above (see paragraphs [6] and [7]) and the warnings sounded by the Victorian Legal Profession Tribunal in allowing the [applicant]’s appeal in 2003.[115]
[114]Ibid [39]–[42].
[115]Citations omitted.
Finally, the judge referred to the fact that reprimanding a legal practitioner for professional misconduct plays an important and necessary part in the penalty process, even where other more punitive measures are also imposed.[116]
[116]Penalty Reasons, [47].
The judge then considered the facts of this case and, in particular, the gravity of the applicant’s misconduct. The judge concluded that the gravity of the offending was ‘closer to the lower or moderate position of the scale of professional misconduct’.[117] Nevertheless, she was of the view that aspects of the applicant’s behaviour aggravated the seriousness of the conduct.[118]
[117]Ibid [49].
[118]Ibid [49]–[57].
First, she referred to the fact that the conduct consisted of fraud allegations relying upon the comments of this Court in Rees v Bailey Aluminium Products Pty Ltd that an ‘allegation of fraud, when there is no factual basis for it, constitutes a serious dereliction of duty and misconduct by counsel’.[119] On this basis, she concluded that the applicant’s breach of r 65 was made more serious due to the fact that the allegations pertained to fraud (rather than a less serious allegation).[120]
[119](2008) 21 VR 478, 490 [32] (Ashley, Redlich JJA and Coghlan AJA); [2008] VSCA 244.
[120]Penalty Reasons, [50]–[51].
Second, the judge referred to the repetition of the fraud allegations despite the ‘clear’ warnings of Gourlay JR (see [20] and [23] above). This meant the applicant’s conduct demonstrated an additional level of willingness to neglect his professional duties and overstep the line.[121]
[121]Ibid [53].
Third, the judge relied upon the ‘brazenness’ of the applicant’s repetition of the fraud allegations despite the 15 July and 27 July Mathieson affidavits. She rejected the applicant’s submission that he ‘never indicated that such an affidavit would have any bearing on the genuineness or otherwise’ of the 15 February invoice by relying upon the transcript of the 30 June mention extracted above at [20].[122]
[122]Ibid [54]–[55].
Fourth, the judge concluded that the applicant’s lack of insight and remorse is a primary aggravating factor in the penalty exercise, particularly given his 35 years’ experience in the legal profession.[123] She relied upon the following matters:
(a)the applicant demonstrated a lack of insight and remorse and an inability to rehabilitate or otherwise curtail his behaviour following the warnings and reactions of the judicial officers, and particularly of Gourlay JR. The judge concluded that underpinning the applicant’s inability to do so was his ‘patent inability to comprehend the unethical nature of the conduct’;
(b)the applicant offered no apology to the Complainant, the Tribunal or the legal profession in light of the Liability Reasons and had continued to submit in the VCAT penalty hearing (which the judge did not accept) that he genuinely believed the fraud allegations, that they were not tactical, and were made in the routine course of oral argument;
(c)the applicant’s inability to comprehend the unethical nature of the conduct is evident in, and aggravated by, the ongoing nature of the conduct over an extended period of time, where the conduct was repeated on at least ten occasions across the 30 June mention, the 20 July mention and the CPA hearing. At each instance, the fraud allegation was met with surprise and displeasure from the relevant judicial officer, which should have given the applicant reason to consider whether the fraud allegation should be maintained: he did not do so, and the judge found that he continued to proceed without developing insight; and
(d)this is the third occasion that the applicant had been before the Tribunal (or its predecessor) in relation to matters of professional conduct and, on each such occasion, ‘adverse findings or commentary have been made as to his integrity and failure to meet the standards expected of a legal practitioner and questioning his capacity for insight’.[124]
[123]Ibid [63].
[124]Ibid [58]–[62]. This is matter (d) is the subject of proposed ground 11.
Fifth, the judge considered other applicable sentencing factors.[125] Most relevantly, the judge observed that there ‘are few’ mitigating factors in this case. The judge had regard to the Upjohn affidavit, the applicant’s bankruptcy status and that he is 65 years of age and would therefore not have many practising years left.[126]
[125]Ibid [64]–[76].
[126]Ibid [64].
The judge considered ‘[u]ltimately community protection, denunciation, and both specific and general deterrence are at the forefront of the Tribunal’s mind in exercising the discretion as to penalty’.[127] As to community protection, the judge concluded that making the fraud allegations in court and repeatedly ‘demonstrates a great disrespect to the legal profession and the broader community’.[128] The judge acknowledged that there is nothing inherently wrong with robust advocacy, but took the view that by making the fraud allegations the ‘line has been crossed by the [applicant]’.[129] In this context, the judge then referred to the fact that sentencing processes and patterns in punitive legal proceedings are impacted by the general societal standards applicable at the relevant time.[130]
[127]Ibid [66].
[128]Ibid [67].
[129]Ibid [68].
[130]Ibid [69].
The judge referred to the applicant’s own characterisation of his prior conduct record as ‘unblemished’ and ‘exemplary’, which was maintained in order to support a submission that specific deterrence was less relevant to his sentencing. However, the judge did not accept this submission, stating that this was not the applicant’s ‘first warning of this kind’ and that she did not accept that his sentencing started from the ‘baseline position when it comes to specific deterrence’.[131]
[131]Ibid [72].
Indeed, the judge expressed the view that the applicant’s characterisation of his prior record was ‘problematic’ in light of the 2018 Bar Council determination. She agreed that it was ‘technically accurate’ to say that the cancellation of the applicant’s practising certificate did not arise from any disciplinary matter or matter arising from the professional conduct of his legal practice.[132] However, the judge went on to say:
73…[T]he underlying behaviour and the findings of the Victorian Bar as to his behaviour … does not sit comfortably with this submission. I am not of the view that the [applicant] can be said to have an “exemplary record”. Although this existing cancellation arises from conduct which post-dates the conduct in question in the present matter, and therefore it is not a ‘prior matter’, and despite it relating to conduct not occurring in the direct course of his legal practice, it is still indicative of the [applicant]’s character. The adverse finding as to his behaviour before the counsel committee is of a different and adverse ilk.[133]
[132]Ibid [73].
[133]This is the subject of proposed grounds 12 and 13.
Finally, the judge rejected the applicant’s submission to the effect that general deterrence was not significant given that breaches of r 65 are not commonplace.[134] The judge concluded:
76Legal practitioners, by the nature of their office, are held to a high standard of ethical behaviour. Ultimately, the penalty the Tribunal imposes must reflect that high standard and work towards correcting the public confidence in the profession which is been jeopardised by the [applicant’s] behaviour.
[134]Ibid [74]–[76].
As a result, the judge determined that the appropriate penalty was a combination of a reprimand and a prohibition on practice for a period of 12 months, commencing on 16 April 2023 (being the time at which the prior prohibition on the applicant obtaining a practising certificate was to cease).[135]
[135]Ibid [77]–[80].

Proposed grounds 11 to 13: overview

Before considering the substance of the penalty grounds, it is appropriate to consider this Court’s approach to reviewing the Tribunal’s decision as to penalty. In substance, we agree with the submissions of VLSC to the effect that:
(a)this Court can only interfere with the penalty if the applicant establishes that the decision was vitiated by an error of law; and
(b)the Tribunal’s decision on penalty is made in the exercise of its discretion and falls to be examined by reference to House v The King.[136]
[136]House (1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ; [1936] HCA 40. See generally, Guss v Law Institute of Victoria Ltd [2006] VSCA 88.
VLSC also submitted that the proposed grounds of appeal seek a re-hearing with respect to the manner in which the Tribunal reached its instinctive synthesis of an appropriate penalty without identifying a House v The King error. Further, VLSC submitted that the penalty imposed on the applicant, including a prohibition from practice, was well within the range available to the Tribunal in the applicant’s circumstances.
As a preliminary matter, we note that the applicant’s proposed grounds of appeal with respect to penalty were limited. The applicant does not allege that the penalty imposed was manifestly excessive. Thus, we will review the issue of penalty in light of the narrow proposed grounds of appeal.
The parties agreed that if the applicant’s penalty grounds were successful, the appropriate course would be for this Court to either re-exercise the discretion as to penalty or to remit the penalty proceeding to the Tribunal to be heard and decided again. As we have determined not to grant leave with respect to the applicant’s proposed grounds of appeal relating to penalty, it is unnecessary for this Court to take either course.

Proposed ground 11

Proposed ground 11 is as follows:
11.The [judge] erred in law by addressing the question of penalty on the basis that this was the third occasion that adverse findings or commentary had been made by the Tribunal (or its predecessor) as to the [a]pplicant’s integrity when there had been no such finding or commentary on any of those occasions.
The judge’s challenged finding appears within the discussion of the applicant’s ‘[l]ack of insight and remorse’. It is appropriate to set out the relevant finding in full:
62This is the third occasion that the [applicant] has been before the Tribunal (or its predecessor) in relation to matters of professional conduct. On each occasion (despite the ultimate outcome in respect of the [2003 VLPT determination] in which he was successful), adverse findings or commentary have been made as to his integrity and failure to meet the standards expected of a legal practitioner and questioning his capacity for insight.

The contentions of the parties

The applicant submitted that [62] of the Penalty Reasons is wrong because no adverse findings or commentary about the ‘integrity’ of the applicant were made in the Liability Reasons, the 2019 VCAT decision or in the 2003 VLPT determination. The applicant emphasised that the reasons of Judge Hampel in the 2019 VCAT decision merely recited the conclusions reached by the Bar Council, the Administrative Appeals Tribunal (‘AAT’) and the Federal Court of Australia, respectively, in the context of the applicant’s tax affairs and bankruptcy (rather than his professional conduct).
In the course of oral argument, counsel for the applicant clarified three matters relating to this proposed ground. First, he submitted that the judge ‘misunderstood’ what had been said by the Tribunal on the previous occasions, as none of the comments went to the question of the applicant’s integrity. The applicant reads [62] as ‘going only to the integrity point’ and not being concerned with findings or commentary relating to the applicant’s failure to meet the standards expected of a legal practitioner and questioning his capacity for insight. Second, the applicant agreed that both [10] and [11] of the 2019 VCAT decision are relevant to consider. Third, this proposed ground raised a House v The King error, namely that the judge assumed a factual matter which has no basis (i.e. that the Tribunal or its predecessors had criticised the applicant’s integrity).
VLSC submitted that [62] of the Penalty Reasons must be read in context. VLSC contended that each of the Liability Reasons, the 2003 VLPT determination and the 2019 VCAT decision do include findings about the applicant’s integrity.
As to the Liability Reasons, VLSC referred to paragraphs concerning the applicant’s adherence to the standards required of a legal practitioner, including with respect to his paramount duty to the court and professional dignity.[137]
[137]Liability Reasons, [65], [102], and [134].

As to the 2019 VCAT decision, VLSC referred to Judge Hampel’s summary of the 2018 Bar Council determination. VLSC submitted that the fact that this was a finding of the delegate of the Victorian Legal Services Board (the ‘VLSB’), rather than the Tribunal, is not to the point. The 2018 Bar Council determination was an adverse decision of the delegate of the relevant regulator as to the applicant’s fitness to practise, and VLSC submitted that such ‘internal’ decisions are regularly taken into account in determining an appropriate outcome.[138] Counsel for VLSC also submitted that failure to pay tax over the course of some decades is a matter of integrity.
[138]VLSC referred to VLSC v Logan (Legal Practice) [2016] VCAT 1963, [30]–[32] (Member Wentworth); Burgess v McGarvie (2013) VSCA 142, [72] (Nettle and Neave JJA).
Third, as to the 2003 VLPT determination, VLSC points to VLPT’s criticism of the applicant, namely that the applicant ‘erred in judgment’ and that the applicant’s conduct ‘should not take place and reflects no credit on’ the applicant.[139]

Consideration

[139]Victorian Bar Inc v Sandbach [2003] VLPT 11, [99], [109]. See also, [106]–[111].

We are of the view that proposed ground 11 does not have a real prospect of success. This is for a number of reasons. The first point is that we do not accept the applicant’s reading of [62] of the Penalty Reasons as being an observation that solely relates to ‘integrity’. That reading is inconsistent with the words used in [62], namely ‘adverse findings or commentary have been made as to his integrity and failure to meet the standards expected of a legal practitioner and questioning his capacity for insight’.[140] With respect, the applicant’s contention is premised on a misreading of this paragraph in a way that is incorrect and inconsistent with the principles summarised in OUX set out above at [54].[141]
[140]Penalty Reasons, [62] (emphasis added).
[141]OUX [2018] VSCA 178, [36] (Priest, Beach and Weinberg JJA).
The second point is that we consider previous adverse findings or comments relating to the applicant’s integrity, failure to meet professional standards and questioning his capacity for insight were made by the Tribunal or its predecessor. We will deal with each in turn.
First, it is clear that the Liability Reasons contain adverse findings and commentary as to the applicant’s integrity, failure to meet the standards expected of a legal practitioner and questioning his capacity for insight. We refer to the paragraphs identified by VLSC at [242] and, in particular, the judge’s finding that, by making the fraud allegations, the applicant put ‘his client’s desires before his dignity as a legal practitioner and before his paramount duty to the court’.[142]
[142]Liability Reasons, [102]. See also [134].
Further, in our view, we are not limited to considering the Liability Reasons (as the applicant contended). This is because the Penalty Reasons also consider the applicant’s conduct ‘before the Tribunal’ with respect to the proceedings, and on this basis, relevant findings and commentary within the Penalty Reasons are captured within the remit of the judge’s finding in [62]. There can be no argument that the Penalty Reasons made adverse findings and commentary of the kind described in [62]. By way of example:
(a)the applicant ‘has shown no insight or remorse at all and has made no apology’;[143]
(b)the repetition of the fraud allegations despite being warned demonstrated a willingness to ‘neglect his professional duties and overstep the line’;[144]
(c)the applicant has a ‘patent inability to comprehend the unethical nature of the conduct’;[145] and
(d)the applicant’s conduct ‘demonstrates a great disrespect to the legal profession and the broader community’.[146]
[143]Penalty Reasons, [45]. Similar remarks also appear at [37], [58], [59], [61], [63].
[144]Ibid [53]. A similar remark also appears at [44].
[145]Ibid [58].
[146]Ibid [67].
Second, as to the 2019 VCAT decision, in our view, the applicant was relevantly ‘before the Tribunal’ in relation to a matter of professional conduct. This is because the applicant was seeking to appeal from the 2018 Bar Council determination that the applicant was not a fit and proper person to hold a practising certificate, in circumstances where VLSB was the relevant regulator and the Bar Council was acting as its delegate.
The 2019 VCAT decision was made in a context where Judge Hampel was considering the applicant’s application to withdraw his application to review the 2018 Bar Council determination. As such, Judge Hampel’s comments relate to adverse findings about the applicant’s conduct in respect of his tax affairs from various sources, including the Bar Council and in proceedings brought by the Commissioner of Taxation in the AAT, the Federal Court, and in subsequent bankruptcy proceedings.
Most relevantly, at [10] of the 2019 VCAT decision Judge Hampel noted that, in relation to bankruptcy proceedings brought by the Taxation Commissioner, the Court found that the applicant had engaged in conduct that was ‘apt to mislead the court’.[147] In our view, although the word ‘integrity’ is not specifically used, a barrister engaging in ‘conduct apt to mislead the court’ demonstrates a lack of integrity on that barrister’s part.
[147]Sandbach v LSB [2019] VCAT 623, [10].
Further, at [11] of the 2019 VCAT decision, Judge Hampel also referred to the fact that the Bar Council found, following the applicant’s appearance before a Counsel Committee, that the applicant had ‘failed to understand, or was unwilling to confront, the seriousness of the conduct identified in the taxation proceedings or to address what appeared to be a disregard of the law and his professional obligations to be truthful and act with integrity’.[148] In our view, these comments also relate to the applicant’s integrity, his failure to meet the standards expected of a legal practitioner and question his capacity for insight.
[148]Ibid [11].

Third, as to the 2003 VLPT determination, the extract above at [213] indicates that the Tribunal made adverse comments about the applicant, namely that his use of the word ‘untruths’ in the context of opposing counsel’s submissions was ‘inappropriate’, ‘should not take place’, and that the applicant ‘should exercise more care with the use of language in court relating to his opponent’.[149] In our view, these comments can fairly be read as relating to the applicant’s failure to meet the standards expected of a legal practitioner and/or question his capacity for insight.
[149]Victorian Bar v Sandbach [2003] VLPT 11, [106]–[111].
As a result of these conclusions, the applicant has not demonstrated that the judge’s reasoning was infected by a House v The King error and we would refuse leave in respect of proposed ground 11.

Proposed grounds 12 and 13

Proposed grounds 12 and 13 are related grounds, and, as a result, we will deal with them together. In the course of oral argument, counsel for the applicant referred in particular to the following findings of the Penalty Reasons which provide:
72The [applicant] characterised his prior conduct record as “unblemished” and “exemplary” and utilised this to submit that specific deterrence is less relevant, in that the present finding against him alone is warning enough to deter further conduct. But this is not his first warning of this kind and therefore, I cannot accept we are starting at the baseline position when it comes to specific deterrence.
73The [applicant’s] characterisation of his prior conduct as “unblemished” and “exemplary” is also problematic in light of the cancellation is practising certificate in 2019 (following the withdrawal of the 2018 appeal). The [applicant] submitted that “the cancellation of his practising certificate in 2019 did not arise from any disciplinary matter or matter arising from the professional conduct these legal practice”. Whilst this may be argued to be technically accurate, the underlying behaviour and the findings of the Victorian Bar as to his behaviour… does not sit comfortably with this submission. I am not of the view that the [applicant] can be said to have an “exemplary record’. Although the existing cancellation arises from conduct which post-date is the conduct in question in the present matter, and therefore is not a ‘prior matter’, and despite it relating to conduct not occurring in the direct cause of his legal practice, is still indicative of the [applicant’s] character. The adverse finding at his behaviour before the council committee is of a different and adverse ilk.
Proposed grounds 12 and 13 are as follows:
12.The [judge] erred in law by treating the decision of the Victorian Bar [i.e. the 2018 Bar Council Determination] as to the [a]pplicant’s fitness to hold a practising certificate as admissible and relevant on the question of penalty when neither the [a]pplicant nor the [r]espondent had sought to rely on that decision and there had been no Tribunal or judicial finding in relation to that matter.
13.The [judge] erred in law by determining the question of penalty on the basis that the [a]pplicant’s behaviour before the Counsel Committee of the Victorian Bar Council was blameworthy and of an adverse ilk when there was no evidence of any misbehaviour by him before that Committee.

The contentions of the parties

As to proposed ground 12, the applicant submitted that the judge ought not to have placed any weight on the 2018 Bar Council determination for two primary reasons. First, the determination concerned the applicant’s fitness to hold a practising certificate in the context of his ‘tax affairs and bankruptcy’ and was not a matter in respect of which there had been any Tribunal or judicial determination. Second, neither the applicant nor VLSC advanced any submission at the VCAT penalty hearing with regard to the 2018 Bar Council determination. As a result, the applicant submitted that the 2018 Bar Council determination should have been regarded as irrelevant to the question of penalty and the Tribunal’s reliance on this matter constitutes a fundamental flaw in the Penalty Reasons.
At the hearing of this application, counsel for the applicant submitted that the judge mischaracterised the applicant’s submissions at [72] of the Penalty Reasons (set out above) insofar as the judge said the applicant characterised his prior conduct record as ‘unblemished’ and ‘exemplary’ in order to support a submission that specific deterrence was ‘less relevant’ to him. Rather, counsel for the applicant contended that the applicant relied on his ‘unblemished record of ethical conduct in the course of his practice’ (i.e. which excluded tax-related conduct). The applicant noted that this submission was correctly recorded by the judge at [32] of the Penalty Reasons. Counsel for the applicant submitted that tax-related conduct might make a person unsuitable for practise, but it did not mean such conduct was committed ‘in practice’ (i.e. in the course of practice).
As to proposed ground 13, the applicant referred to the final sentence of [73] of the Penalty Reasons (set out above) in which the judge raised the issue of the applicant’s behaviour before the Counsel Committee of the Bar Council. The applicant submitted that there was no material before the Tribunal that provides any indication of the applicant’s behaviour before that Committee including whether it was blameworthy. This is notwithstanding the comments of Judge Hampel at [11] of the 2019 VCAT decision.[150] The applicant submitted that these comments were merely speculation and, absent any evidence, the judge’s finding and reliance upon them were unsafe.
[150]Set out above at [216].
VLSC advanced several submissions with respect to proposed grounds 12 and 13. First, VCAT is not bound by the rules of evidence and may inform itself on any matter as it sees fit.[151] Second, VLSC noted that the formal notification of the 2018 Bar Council determination (being a letter from the Victorian Bar Council dated 13 November 2018) and the 2019 VCAT decision, were exhibited to the affidavit of Ms Wynd of 27 January 2023, concerning the applicant’s relevant professional history and no objection was taken to this affidavit. Counsel for VLSC submitted that if the applicant had either objected to Ms Wynd’s affidavit or claimed that the 2019 VCAT decision incorrectly recorded the Bar Council’s findings, VLSC would have tendered the Bar Council’s findings in full. Third, VLSC submitted that [72] of the Penalty Reasons was addressed to the applicant’s submission that his prior conduct was ‘unblemished’ and ‘exemplary’, which was a baseless submission.
[151]VCAT Act, ss 98(1)(b) and (c).
Fourth, VLSC submitted that the applicant’s characterisation of the 2018 Bar Council determination as merely relating to ‘tax affairs and bankruptcy’ was inaccurate as Judge Hampel’s summary of that determination related to applicant’s professional obligations and integrity. VLSC submitted that the fact that there were no further details with respect to these findings did not mean that these findings ought not be taken into account; rather, the question is one of weight. Further, VLSC submitted that there was clearly a finding in the 2018 Bar Council determination that the applicant’s conduct was blameworthy, otherwise he would not have been found to be unfit to practise at that time and for a further four years.
Relatedly, VLSC submitted that the applicant gave no reason for why, in considering what was in the public interest, the Tribunal ought not have regard to all relevant information before it. VLSC contended that the fact that the Bar Council determined the applicant was not a fit and proper person was clearly of relevance, and its relevance was not undermined by the fact that it was not a judicial determination.

Consideration

In our view, proposed grounds 12 and 13 do not have a real prospect of success.
As to proposed ground 12, we reject the applicant’s contention that the judge ought not to have had regard to or placed any weight on the 2018 Bar Council determination. The 2018 Bar Council determination was made by the Victorian Bar as delegate of the VLSB. A finding was made that the applicant was not a fit and proper person to hold a practising certificate in the context of his ‘tax affairs and bankruptcy’. We have set out the nature of the applicant’s conduct above. Further, as noted above, findings were made that the applicant failed to understand or was unwilling to confront the seriousness of this conduct or address what appeared to be a disregard for the law and the applicant’s professional obligations to be truthful and act with integrity.
In our view, there can be no doubt that these matters were relevant to the penalty to be imposed once the charge had been established. It is not to the point that there had not been any Tribunal or judicial determination of these matters. The 2018 Bar Council determination was a decision of the relevant regulator with respect to the applicant’s professional history.
Further, the relevant matters relied upon by the judge were established on the material before the Tribunal i.e. in the 2019 VCAT decision. The judge, in exercising her jurisdiction at VCAT, was entitled to have regard to all relevant material before her — including the 2019 VCAT decision — in reaching her conclusion as to penalty. Further, VCAT is not bound by the rules of evidence. As a result, the judge was entitled to rely upon the matters recorded in the 2019 VCAT decision (including the 2018 Bar Council determination) without the need for firsthand or other evidence of the underlying facts. While VLSC may not have made specific submissions based on the 2018 Bar Council determination, as noted above, that decision was exhibited to the affidavit of Ms Wynd shortly before the VCAT penalty hearing. This is in a context where the applicant submitted to the Tribunal that specific deterrence was of less relevance on account of his ‘unblemished record of ethical conduct in the course of his practice’ and his ‘exemplary record’ of good professional conduct.
Finally, we do not accept that the judge mischaracterised the applicant’s submissions by failing to distinguish between unblemished or exemplary behaviour ‘in the course of practice’ (which excluded tax-related conduct) as opposed to his work-related conduct more generally. This is because the applicant’s ‘tax affairs and bankruptcy’ are not distinct from, or irrelevant to, the applicant’s professional conduct. Rather, the findings about his tax affairs and bankruptcy raised doubt about the applicant’s regard for his professional obligations, including to be truthful and act with integrity. As the New South Wales Court of Appeal’s comments in DEJ v Council of the New South Wales Bar Association made clear, a barristers’ tax-related conduct has a strong relationship with their professional conduct in the course of practising law.[152] In our view, this is of more significance to this case, in circumstances where the applicant primarily specialised in taxation matters.[153]
[152][2021] NSWCA 72 [134]–[137] (Meagher JA, Macfarlan and White JJA agreeing).
[153]Liability Reasons, [2].
As to proposed ground 13, in our view, the applicant’s complaint regarding the Tribunal’s observations with respect to his behaviour before the Counsel Committee is misconceived. In our view, the judge was entitled to take into account the material before her relating to the applicant’s behaviour before the Counsel Committee in deciding what penalty to impose. The relevant findings of the Bar Council relating to the applicant’s appearance before the Counsel Committee are set out at [11] of the 2019 VCAT decision. It is appropriate to set out the last sentence of that paragraph again:
The Bar Council also made adverse findings about the Applicant’s conduct following his appearance before a counsel committee on 12 February 2018. The Bar Council found the Applicant failed to understand, or was unwilling to confront, the seriousness of the conduct identified in the taxation proceedings order to address what appeared to be a disregard of the law and his professional obligations to be truthful and act with integrity.
As set out in [267] above, the judge was entitled to rely upon all material before her in deciding what penalty to impose, including the comments made in the 2019 VCAT decision, without the need for firsthand or supporting evidence. That included material that indicated the applicant failed to understand or address the seriousness of conduct arising from his tax and bankruptcy related matters which, as we have found, reasonably related to his professional conduct or obligations. That is exactly what the comments in the 2019 VCAT decision addressed.
We accept that there is no explanation about what statements, submissions or otherwise prompted the Bar Council to make that finding. However, we do not think that is relevant in circumstances where the Bar Council’s ultimate finding and characterisation of the applicant’s conduct is apparent (and he does not submit that it was recorded inaccurately in the 2019 VCAT decision). On this basis, we can see no error in the judge’s reasoning. Certainly not of the kind sufficient to meet the principles expressed in House v The King.
For the preceding reasons, we would refuse leave to appeal on proposed grounds 12 and 13.

Conclusion

For the reasons set out above, we grant leave to appeal in respect of proposed grounds 2, 3 and 6, but dismiss the appeal in respect of those grounds. We refuse leave on all the remaining proposed grounds.
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[2024] VSCA 143

27 June 2024