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Stirling v Legal Services Commissioner

Stirling v Legal Services Commissioner

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Case Copied 17 December 2013 78 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0076

MATTHEW STIRLING
	Appellant
V
LEGAL SERVICES COMMISSIONER
	Respondent

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JUDGES	WARREN CJ, NEAVE JA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 September 2013
DATE OF JUDGMENT	17 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 374
JUDGMENT APPEALED FROM	Legal Services Commissioner v Matthew Stirling [2012] VCAT 347

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LEGAL PRACTITIONERS – Disciplinary proceedings – Appeal against VCAT suspension – Appellant suspended for three years - Professional misconduct by barrister – Failure to make provision and failure to report income and other tax for eight years - Whether global approach to penalty breaches common law rule in Ryan v The Queen – Whether use of charged conduct in a separate charge was a double penalty – Whether penalty was manifestly excessive – Discretion re-opened – Re-sentenced to 30 months suspension with 24 months suspended – Ancillary orders for conditions to be placed on any future practising certificate granted to the appellant - Ryan v The Queen (2000) 203 CLR 452; Pearce v R (1998) 194 CLR 656; LSC v Moore [2010] VCAT 742.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J Ruskin QC with Mr C Winneke	Tony Hargreaves & Partners
For the Respondent	Dr K Hanscombe SC with Mr P Over	Legal Services Commissioner

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THE COURT:

The appellant, a barrister, was convicted and suspended from legal practice. He appeals the penalty.

Introduction

On 28 March 2012, the Victorian Civil and Administrative Tribunal (‘the Tribunal’) found the appellant, Matthew James Stirling, a barrister, guilty on one charge of professional misconduct and one charge of unsatisfactory professional conduct under ss 4.4.3(1)(b) and 4.4.2 of the Legal Profession Act 2004 (Vic) (‘the Act’). The decision of the Tribunal was made after an application by the Legal Services Commissioner, the respondent, pursuant to s 4.4.13(2) of the Act following an investigation into the failure of the appellant to comply with his tax obligations between 1996 and 2005.[1]
[1]Legal Services Commissioner v Matthew Stirling [2012] VCAT 347 (‘Reasons’) [231]-[233].

The Tribunal suspended the appellant from practising for three years, and made a number of other orders placing restrictions on any future practising certificate that may be granted to him. This appeal is limited to Order 4 of the Tribunal which suspended the appellant from practice for a period of three years.[2]
[2]Order 4 provided that:
Pursuant to s 4.4.17(b) and (c) of the Act:
(a) the local practising certificate of the Respondent to be suspended, with the period of suspension to commence on 18 May 2012; and
(b) a local practising certificate not be granted to the Respondent until 17 May 2015.

On 24 April 2012, the appellant sought leave to appeal against Order 4 of the Tribunal’s decision.[3] The Court of Appeal granted leave to appeal and ordered that Order 4 be stayed until the hearing and determination of the appeal.
[3]On 16 May 2012, by consent of the parties, the Tribunal delayed the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2013] VSCA 374
Decision Date: 17 December 2013

CaseChat Overview and Summary

Stirling v Legal Services Commissioner involved a disciplinary proceeding initiated by the Legal Services Commissioner against a barrister, Stirling, who was accused of professional misconduct due to his failure to make provision for and failure to report income and other taxes for a period of eight years. The case was heard by the Supreme Court of Victoria, which was asked to review the decision of the Victorian Civil and Administrative Tribunal (VCAT) that had imposed a three-year suspension on Stirling's practising certificate.

The court had to determine whether the penalty imposed by VCAT breached the common law principle articulated in Ryan v The Queen, which states that a penalty cannot be imposed for the same conduct under different heads of charge. Additionally, the court considered whether the penalty was manifestly excessive and whether the discretion to re-open the matter was properly exercised. The court was also tasked with interpreting the application of Pearce v R in the context of sentencing in professional disciplinary matters.

The Supreme Court found that the global approach to the penalty by VCAT breached the common law principle in Ryan v The Queen, as it effectively imposed a penalty for the same conduct under multiple charges. The court also held that the use of the charged conduct in a separate charge constituted a double penalty. However, the court found that the penalty was not manifestly excessive and affirmed the re-opening of the discretion to reconsider the penalty. The court re-sentenced Stirling to a 30-month suspension, with 24 months suspended, and imposed ancillary orders that conditions be placed on any future practising certificate granted to him.

The final orders included the suspension of Stirling's practising certificate for 30 months, with 24 months suspended, and conditions that must be attached to any future practising certificate. These conditions include requirements for Stirling to provide financial information and undergo professional development. The decision underscored the importance of adhering to legal principles in disciplinary proceedings and the need for proportionality in penalties imposed on legal practitioners.

Orders