Tricarico v Victorian Legal Services Board (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2025 01457

SARAH TRICARICO	Plaintiff
v
VICTORIAN LEGAL SERVICES BOARD	Defendant

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2025
DATE OF JUDGMENT:	7 May 2025; revised 8 May 2025
CASE MAY BE CITED AS:	Tricarico v Victorian Legal Services Board (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 242

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LEGAL PRACTITIONERS — Suspension of Australian practising certificate — Practising certificate suspended on the basis of a charge of an indictable offence — Charge of attempting to pervert the course of justice — Charge of serious offence not yet determined — Power of delegate of Victorian Legal Services Board to immediately suspend practising certificate — Delegate considered that it was necessary in the public interest to suspend the certificate immediately — Board to consider further suspension — Legal Profession Uniform Law (Vic) ss 77, 82(2).

JUDICIAL REVIEW — Australian practising certificate suspended on the basis of a charge of an indictable offence — Delegate of Victorian Legal Services Board formed opinion that immediate suspension of practising certificate was necessary in the public interest and decided to immediately suspend practising certificate without notice to holder — No evidence of other information supporting charge-sheet — Charge related to conduct alleged six years earlier — No suggestion of ongoing relevant conduct — No action under Legal Profession Uniform Law (Vic) pt 3.5 yet commenced — No basis for thinking practitioner might engage in any actual similar conduct — Suspension decision based purely on perception of loss of confidence in the legal profession and administration of justice — Content of requirements of procedural fairness in context of statutory provisions and in all the circumstances — Procedural fairness required advance notice and an opportunity to respond to opinion formed by delegate before suspension decision was made — Unreasonable exercise of statutory power to immediately suspend without notice in the circumstances — Suspension decision quashed — Legal Profession Uniform Law (Vic) ss 77, 82(2) — Supreme Court (General Civil Procedure) Rules 2015 r 56.06.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K Foley SC with Ms B Seignior	Bleyer Lawyers
For the Defendant	Mr S Senathirajah KC with Mr R Kruse	Victorian Legal Services Board (in-house)

TABLE OF CONTENTS

Overview.............................................................................................................................................. 1

Context................................................................................................................................................. 3

Factual background...................................................................................................................... 3
Legal framework........................................................................................................................... 7

Consideration.................................................................................................................................... 12

Preliminary observations on statutory interpretation issues............................................... 12
General principles.............................................................................................................. 12
Relationship between sections 77 and 82....................................................................... 13
The debate about ‘immediately’...................................................................................... 15
Other indications that there is a discretion and how it should be approached....... 18
The Board’s construction of s 77 and assertion of interdependency of the grounds 19

Ground 1: Procedural fairness was not accorded in making the decision......................... 20
Grounds 2 and 3: The legal unreasonableness grounds........................................................ 27

Conclusion and orders.................................................................................................................... 34

HIS HONOUR:

Overview

On 13 March 2025, a member of Victoria Police signed and filed a charge-sheet in the Magistrates’ Court alleging that the plaintiff, Ms Tricarico, engaged in conduct constituting an attempt to pervert the course of justice in February 2019. On the same day, the charge-sheet was sent to the defendant Victorian Legal Services Board (the Board).

The next day, 14 March 2025, without notice to Ms Tricarico, a delegate of the Board suspended Ms Tricarico’s practising certificate with immediate effect pursuant to s 77 of the Legal Profession Uniform Law (Victoria) (Uniform Law) scheduled to the Legal Profession Uniform Law Application Act 2014 – the s 77 suspension decision.

Ms Tricarico commenced a proceeding in this Court seeking judicial review of the s 77 suspension decision and applied for a stay of the s 77 suspension decision. I heard the application for the stay. On the basis of certain undertakings given by Ms Tricarico limiting the scope and manner of her practice of law, I made an order staying the s 77 suspension decision and listed the matter for an expedited trial.[1]
[1]Tricarico v Victorian Legal Services Board [2025] VSC 189.

Ms Tricarico sought an order in the nature of certiorari quashing the s 77 suspension decision and/or a declaration that it was of no legal force or effect.[2] The originating motion advanced three grounds in support of either form of relief: first, that the s 77 suspension decision was made without notice or a reasonable opportunity for Ms Tricarico to be heard, in material breach of procedural fairness; secondly, that there was no rational basis for the s 77 suspension decision; and thirdly, that it was otherwise legally unreasonable.
[2]Originating motion filed on 19 March 2025, as amended during the hearing on 17 April 2025.

Following the expedited trial on 17 April 2025, I have decided to quash the s 77 suspension decision. These are my reasons for that conclusion.

The questions for determination were:

(a) has Ms Tricarico established a material breach of the requirements of procedural fairness? In particular:

(i) in circumstances where the Board’s delegate formed the opinion that it was necessary in the public interest to suspend the practising certificate, did that in itself obviate any requirement to give advance notice (provided the opinion was not itself vitiated by legal or jurisdictional error)?

(ii) irrespective of the Board’s opinion on that issue, is it the function of the Court to determine whether, in all the circumstances, procedural fairness required the Board to give Ms Tricarico advance notice and an opportunity to respond before making the s 77 suspension decision?

(iii) depending on the answers to the preceding questions, did the Board fail to provide procedural fairness to Ms Tricarico, and was any such failure material to the outcome?

(b) has Ms Tricarico established that the s 77 suspension decision was irrational, and for that reason contrary to the standard of legal reasonableness that applied to the power conferred on the Board?

(c) has Ms Tricarico established that the s 77 suspension decision was otherwise contrary to that standard of legal reasonableness, and so beyond the power conferred on the Board?

I have decided the questions in Ms Tricarico’s favour. I am satisfied that the Court must decide for itself what procedural fairness required, and that there was a material breach of those requirements. Further, I am satisfied that the delegate’s decision to impose an immediate suspension without notice was not open to him, acting reasonably. Reasonableness required him to give Ms Tricarico an opportunity to be heard. In this way, there is substantial overlap between the grounds.

Context
Factual background

On 13 March 2025 Victoria Police provided to the Board a copy of a charge-sheet filed in the Magistrates’ Court that same day, setting out the following charge:

That TRICARICO on the 5th of February 2019, with intent to pervert the course of justice, instructed Youssef RAFFOUL to remotely delete the contents of a mobile phone that TRICARICO believed had been used by Patrick SUCCAR prior to SUCCAR’s arrest, which had the tendency to pervert the course of justice in that it had the tendency of hindering the inspection of that mobile phone by Victoria Police officers for the purposes of the investigation and prosecution of SUCCAR for serious offending.

The charge-sheet was signed by an informant Detective Senior Constable of Victoria Police on 13 March 2025.

Staff of the Board acted without any material delay on receiving the charge-sheet. By the next day, 14 March 2025, documentation had been prepared and placed before the Board’s delegate, Mr Anstee, recommending that he make a decision without notice to Ms Tricarico to immediately suspend her practising certificate.

Mr Anstee made the s 77 suspension decision by signing a memorandum adopting that recommendation and signing a decision letter to give effect to it. The letter was then sent to Ms Tricarico, also on 14 March 2025.

The memorandum, the letter and the charge-sheet were the only documents that Mr Anstee relied upon in making the s 77 suspension decision. I infer that no supporting information or evidence of any kind was provided by Victoria Police to the Board in relation to alleged conduct set out in the charge-sheet, and the delegate did not attempt to obtain any further information from anyone else about it either.

The memorandum was prepared by a Principal Advisory Lawyer and Investigator on the staff of the Board. It was organised into five key sections: ‘background’, ‘the charge’, ‘grounds for immediate suspension’, ‘grounds for proposed interference with practicing certificate’, and ‘recommendation’.

As well as containing some contextual facts, the ‘background’ section stated that the purpose of the memorandum was ‘to recommend that you … decide to immediately suspend Ms Tricarico’s Australian practicing certificate’ under s 77 ‘on the basis that it is necessary in the public interest’, and ‘form and notify Ms Tricarico of the preliminary view that her Australian practising certificate be suspended’ under ss 76 and 82(2) of the Uniform Law, ‘on the basis that she has been charged with a serious offence that has not yet been determined’.

The second section set out the charge, noting that Victoria Police had provided a copy of the charge-sheet to the Board, and noting that attempting to pervert the course of justice is a common law offence in Victoria, for which s 320 of the Crimes Act 1958 provides for a maximum penalty of 25 years imprisonment.

The third section pointed out that a decision under s 77 is ‘not bound by the constraints of section 83’ in relation to notice requirements and that ‘[t]he lawyer may make representations about the suspension (or variation) which the Board must consider’, referring to s 77(3). It outlined the grounds for the recommended s 77 suspension decision in terms that were materially reflected in the decision letter, which I address in a little more detail, later. The core of the recommended decision was that immediate suspension of Ms Tricarico’s practising certificate was justified in the public interest for the following reasons (citations omitted):

a. The charge is, in and of itself, a matter of the utmost seriousness for a legal practitioner. It alleges conduct that is prejudicial to the administration of justice.
b. It is incumbent on legal practitioners to act with honesty and integrity in the discharge of their duties and obligations. The charge alleges conduct fundamentally incompatible with the standards of integrity, probity and trustworthiness required of legal practitioners and the standing of the legal profession in Victoria as a whole.
c. Ms Tricarico is a criminal lawyer. The conduct in which Ms Tricarico is alleged to have engaged is more than frustration of police investigation - that is not, of itself, necessarily a contravention of lawyers’ duties nor does it necessarily warrant disciplinary sanction, so long as it is within the bounds of the law. The allegation put against Ms Tricarico is that she has done so extralegally. The allegation undermines the trust that can be placed in Ms Tricarico by the judiciary and the profession, and undermines the trust that can be placed in lawyers by the public.
d. While the conduct is alleged to have occurred some time ago, the fact is that Ms Tricarico is charged now and to allow her to continue to practise puts the administration of justice at risk.
e. There is an unacceptable risk to the public, the rest of the profession and to the administration of justice.

The fourth section proposed consideration of action by the Board under pt 3.5 of the Uniform Law, in the form of suspension under s 82(2) after provision of notice pursuant to s 83 of the Uniform Law, for the same reasons underlying the recommended s 77 suspension decision.

The final section set out the recommendation that Ms Tricarico’s practising certificate be ‘immediately suspended’ under s 77 on the basis that it is necessary in the public interest that her certificate be suspended under s 82(2) because Ms Tricarico had been charged with a ‘serious offence which has not yet been determined’, and that the Board should give her notice of the proposal to take that action under s 83.

The signature block gave Mr Anstee the option to ‘Agree/Disagree – Comment’. He struck out ‘Disagree’ and signed the memorandum without making any comment. He also signed the draft notification letter accompanying the memorandum.

The letter was in three parts, a background section and two operative parts. In the background section, paragraph 2 of the letter recorded that Ms Tricarico was admitted to the legal profession on 17 April 2012 and had held Australian practising certificates issued by the Board since that date, and that Ms Tricarico at the time of the letter held a principal practising certificate with trust authorisation and was the sole principal and legal director of Sarah Tricarico Lawyers Pty Ltd.

In the first operative part, under the heading ‘A. Immediate suspension of your practising certificate under s 77 of the Uniform Law’, paragraph 6 referred to s 77 of the Uniform Law, and paragraph 7 referred to New South Wales Bar Association v Cummins,[3] noting that in that case Spigelman CJ identified four interrelated public interests in the conduct of legal practitioners: (1), clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers; (2), fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues; (3), the judiciary must have confidence in those who appear before the courts; and (4), the public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice (the Cummins factors).
[3](2001) 52 NSWLR 279; [2001] NSWSCA 284, [20] (Cummins).

The letter went on to note that while action was being considered by the Board under s 82 of the Uniform Law, the delegate on behalf of the Board had made a decision with immediate effect to suspend Ms Tricarico’s practising certificate under s 77. Paragraphs 10 and 11 set out the reasons for this decision in the following terms:

10.In considering whether immediate action in respect of your practising certificate is necessary in the public interest, the Board has considered whether your holding of a practising certificate, pending further investigation, presents such an unacceptable risk to clients, the rest of the profession, the public generally or the administration of justice that it is necessary that your deemed (sic) practising certificate be immediately suspended.
11. Having regard to the charge and the enclosed charge-sheet, I consider it is necessary in the public interest to immediately suspend your Australian practising certificate because:
a. The charge is, in and of itself, a matter of the utmost seriousness for a legal practitioner. It alleges conduct that is prejudicial to the administration of justice.
b. It is incumbent on legal practitioners to act with honesty and integrity in the discharge of their duties and obligations. The charge alleges conduct fundamentally incompatible with the standards of integrity, probity and trustworthiness required of legal practitioners and the standing of the legal profession in Victoria as a whole.
c. The conduct in which you are alleged to have engaged is the unlawful frustration of a police investigation. The allegation undermines the trust that can be placed in you by the judiciary and the profession, and undermines the trust that can be placed in lawyers by the public.
d. While the conduct is alleged to have occurred some time ago, to allow you to continue to practise after you have been charged with the offence puts the administration of justice at risk.
e. There is an unacceptable risk to the public, the rest of the profession and to the administration of justice.

At the time of the s 77 suspension decision and its notification to Ms Tricarico, no advance notice had been provided to Ms Tricarico by the Board. Nor had the Board started any action under pt 3.5.

Ms Tricarico commenced this judicial review proceeding in the Court on 31 March 2025.

At that time, Ms Tricarico had not made any written representations under s 77(3) to the Board about the s 77 suspension decision, for example seeking a lifting of the suspension under s 78(1), and there was no evidence that she had done so before the final hearing of the matter on 17 April 2025.

Legal framework

In 2014 and 2015, legislation was enacted in Victoria and New South Wales applying the Legal Profession Uniform Law as a law of those States. Similar legislation was enacted in 2022 in Western Australia. The legislation in Victoria is the Legal Profession Uniform Law Application Act 2014 (LPUL Application Act). Under that Act, the Legal Profession Uniform Law in sch 1 to the LPUL Application Act is applied as a law of Victoria, and in so applying it may be referred to as the Legal Profession Uniform Law (Victoria).[4] As noted at the start of these reasons, I refer to it as the ‘Uniform Law’.
[4]LPUL Application Act s 4.

The objectives of the Uniform Law are set out in Chapter 1, pt 1.1, s 3:

The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by—
(a)providing and promoting interjurisdictional consistency in the law applying to the Australian legal profession; and
(b)ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and
(c)enhancing the protection of clients of law practices and the protection of the public generally; and
(d)empowering clients of law practices to make informed choices about the services they access and the costs involved; and
(e)promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and
(f)providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained.

Chapter 2 of the Uniform Law establishes the threshold requirements for legal practice. Section 10 places a prohibition on engaging in legal practice unless by a qualified entity, which relevantly means an Australian legal practitioner, being an Australian lawyer with a current practising certificate.

The Board is the ‘designated local regulatory authority’ for the functions conferred by ss 77 and 82 of the Uniform Law, together with other provisions in the Uniform Law relating to the grant, renewal, variation, suspension and cancellation of Australian practising certificates.[5] The Board was established under predecessor legislation[6] and is continued in effect under the LPUL Application Act.[7] The Board’s objectives[8] are:
[5]Ibid s 10(1), Table 1.
[6]Legal Profession Act 2004 (Vic) s 6.2.1 (repealed).
[7]LPUL Application Act s 28.
[8]Ibid s 30.
(a)to ensure the effective regulation of the legal profession and the maintenance of professional standards; and
(b)to address the concerns of clients of law practices and legal practitioners through the regulatory system and provide for the protection of consumers of legal services; and
(c) to ensure the adequate management of trust accounts; and
(d)to contribute to the effective administration of the Legal Profession Uniform Framework through cooperation with other involved entities.
Uniform Law pt 3.5 is titled ‘Variation, suspension and cancellation of, and refusal to renew, certificates’. Part 3.5 div 2, is titled ‘Variation, suspension or cancellation of certificates’. Within div 2, s 76 provides that ‘[t]he designated local regulatory authority may vary, suspend or cancel a certificate in accordance with …’ div 3 ‘on a ground referred to in that Division’ or div 4 ‘in relation to an automatic show cause event or a designated show cause event’.

Section 77 is also in div 2. It is central to the questions for determination and I set it out in full:

77 Immediate variation or suspension before or during consideration of proposed action
(1) This section applies if the designated local regulatory authority is considering whether to start, continue or complete action under this Part in relation to a certificate and the designated local regulatory authority considers it necessary in the public interest to vary or suspend the certificate immediately.
(2) The designated local regulatory authority may immediately vary or suspend the certificate, by written notice given to the holder, until the earlier of the following—
(a)the time at which the designated local regulatory authority informs the holder of the designated local regulatory authority's decision under this Part;
(b)the end of the period of 56 days after the notice is given to the holder under this section.

(3) The holder may make written representations to the designated local regulatory authority about the variation or suspension, and the designated local regulatory authority must consider the representations.
(4) The designated local regulatory authority may at any time revoke a condition imposed by the variation under this section, whether or not in response to any written representations made to it by the holder.

Section 78(1) provides relevantly that ‘[t]he designated local regulatory authority may lift the suspension of a certificate imposed under this Part at any time, whether or not in response to any written representations made to it by the holder…’.

Action under pt 3.5 might be taken in relation to a practising certificate under either div 3 or div 4. Section 82 is in div 3 of pt 3.5 of the Uniform Law, and is titled ‘Variation, suspension or cancellation on specific grounds’. Relevantly, it provides:

82 Grounds for action under this Division
(1) The designated local regulatory authority may vary, suspend or cancel a certificate under this Division on the ground that—
(a) the holder has contravened a condition of the certificate; or
(b) the holder has failed without reasonable excuse to comply with a requirement under Chapter 7 made in connection with an investigation of the holder in connection with this Chapter or has committed an offence under Chapter 7 in connection with any such investigation; or
(c) a local regulatory authority has made a recommendation to that effect under sections 278, 299(1)(g) or 466(7); or
(d) in the case of an Australian practising certificate—the designated local regulatory authority reasonably believes that the holder is unable to fulfil the inherent requirements of an Australian legal practitioner.

…
(2) The designated local regulatory authority may vary or suspend a certificate under this Division (if it considers it appropriate to do so having regard to the seriousness of the offence concerned and to the public interest) on the ground that the holder has been charged with a serious offence, a tax offence or an offence specified in the Uniform Rules for the purposes of this section and—
(a) the charge has not been determined; or
(b) the holder has been convicted of the offence but proceedings taken or likely to be taken in relation to the offence have not been concluded.

(3) The variation or suspension referred to in subsection (2) has effect until the earliest of the following occurs—
(a) the designated local regulatory authority revokes it;
(b) the end of the period specified by the designated local regulatory authority;
(c) if the holder is convicted of the offence—28 days after the day of the conviction;

(d) if the charge is dismissed—the day of the dismissal.

…

Part 3.5 div 4, is entitled ‘Show cause procedure for variation, suspension or cancellation of, or refusal to renew, certificates’. The circumstances in which action may be taken under div 4 in relation to the holder of a certificate are divided into two kinds: ‘automatic show cause events’ and ‘designated show cause events’. The former are defined in s 86:

An automatic show cause event is any of the following in relation to a person who is an applicant for or the holder of a certificate—
(a) a bankruptcy-related event;
(b) his or her conviction for a serious offence or a tax offence …
(c)an event of a kind specified in the Uniform Rules for the purposes of this section.

The holder must give notice of such an event to the designated local regulatory authority within 7 days and a statement explaining why, despite the show cause event, the holder considers himself or herself to be a fit and proper person to hold a certificate within 28 days: s 88.

A ‘designated show cause event’ is defined in s 90 as the service of a notice alleging conduct in four broadly described categories and requiring the holder to show cause why the designated local regulatory authority should not take action, specified in the notice, to vary, suspend or cancel the certificate.

Returning to div 3, s 83 stipulates the notice requirements for the designated local regulatory authority before it is to take an action under div 3 on a ground specified in s 82. It provides:

83 Local regulatory authority to give notice before acting under this Division
If the designated local regulatory authority considers that a certificate should be varied, suspended or cancelled on a ground specified in section 82, it must give the holder notice in writing—
(a) stating that it proposes to take that action and the ground or grounds for the proposed action; and
(b) if it proposes to vary or suspend the certificate, stating the proposed variation or period of suspension, as the case requires; and
(c) inviting the holder to respond in writing to the designated local regulatory authority within a specified period (not being less than 7 days nor more than 28 days after the notice is given) as to why the proposed action should not be taken.

Pursuant to s 100 of the Uniform Law, the holder may seek review of a s 77 suspension decision by way of a de novo appeal to the ‘designated tribunal’, which in Victoria is VCAT.[9]
[9]Ibid s 10(3), Table 3, item 1.

Consideration
Preliminary observations on statutory interpretation issues
General principles

The principles of statutory interpretation that must be applied here are well established.

The statutory interpretation process must begin with the text used.[10] Where the words of a provision are clear, unambiguous, and can be intelligibly applied to the subject matter, the provision must be given its ordinary and grammatical meaning — in such cases, Parliament’s intention has been expressed ‘with unambiguous clarity in the language used’.[11]
[10]R v A2 (2019) 269 CLR 507, [32]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47]; FederalCommissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39] (Consolidated Media Holdings); Thiess v Collector of Customs (2014) 250 CLR 664, [22]; Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143, [99]–[102] (Tabcorp).
[11]Tabcorp [2], [6].

The text must be interpreted in its context, and context should be considered at first instance, rather than at a later stage when ambiguity might arise.[12] The context includes the purpose Parliament intended to achieve, as discerned from the legislation itself, and relevant extrinsic material.[13] The legislative context includes the statute as a whole, with an assumption that Parliament intends interrelated provisions to operate coherently, giving effect to ‘harmonious goals’.[14]
[12]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (CIC).
[13]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69] (Project Blue Sky); CIC 408; see also Consolidated Media Holdings [39].
[14]Project Blue Sky [69]–[70].

To discern legislative intention, it may be instructive to consider the legislative history and antecedents of the provision in question.[15] Legislative history and extrinsic materials cannot displace the meaning of the statutory text.[16]
[15]Consolidated Media Holdings [39]; Tabcorp [2].
[16]Consolidated Media Holdings [39].

It is assumed that Parliament intends discretions conferred under statute to be exercised in accordance with the rules of reason and justice.[17] Absent clear statutory intention to the contrary, it is an implied condition of an exercise of power adversely affecting a person’s interests that they be accorded procedural fairness.[18]
[17]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, [23]–[24] (French CJ); [63]–[66] (Hayne, Kiefel and Bell JJ); see also [88]–[90] (Gageler J) (Li); Sharp v Wakefield [1891] AC 173, 179 (Lord Halsbury).
[18]Eg Kioa v West (1985) 159 CLR 550, 585 (Mason J), 609–616 (Brennan J); CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, [16] (Kiefel CJ and Gageler J) (CNY17).

Relationship between sections 77 and 82

Section 77(1) empowers the Board to immediately suspend a practising certificate, with temporary effect expiring in accordance with sub-s (2), and allowing the holder to make representations under s 77(3) afterwards, for example to seek to have the suspension revoked or ‘lifted’ under s 78(1).

Section 82 empowers the Board to suspend, vary or cancel a certificate after giving prior notice under s 83 and considering the submissions responding to such notice. There is no such express requirement for advance notice to be given before exercising power under s 77(1).[19]
[19]Ms Tricarico relied on the Explanatory Memorandum for the LPUL Application Act for evidence of a legislative intention that notice would be provided before a decision is made under s 77, but that material was insufficiently precise to be of use.

At the outset, it is worth reflecting on the circumstances in which the power under s 77 of the Uniform Law can arise, by reference to the circumstances described in s 82(1) and (2) of div 3, and the circumstances described in the automatic and designated show cause provisions of div 4.

As s 77(1) makes clear, the threshold criterion for s 77 to apply is ‘if the designated local regulatory authority is considering whether to start, continue or complete action under’ pt 3.5.

There are several different kinds of actions under pt 3.5, and many categories of circumstances in which such actions can be started, continued or completed, as set out in s 82(1) and (2), s 86, and s 90.

Taking just the actions contemplated in div 3, as set out in s 82(1) and (2), they comprise the actions of varying, suspending or cancelling a certificate in the four kinds of circumstances referred to in s 82(1), and varying or suspending (but not cancelling) a certificate in six kinds of circumstances enumerated in s 82(2). Subsection (2) refers to the designated local authority doing so if it ‘considers it appropriate to do so having regard to the seriousness of the offence concerned and to the public interest’ on the ground that the holder has been charged with a charge in any of three categories of offence[20] and (for each) in either of two different scenarios — first, the charge has not been determined; or secondly, the holder has been convicted, but proceedings such as an appeal have not concluded.
[20]Ie, a serious offence, a tax offence, or an offence specified in the Uniform Rules.

Two broad observations can be made. First, as well as applying before an action starts, s 77 might also apply after an action under pt 3.5 has already started, and at any time until it concludes. Second, s 77 can apply in many circumstances where it would be natural to expect that the Board will have received at least some — and perhaps a good deal of — evidence or other information about the conduct of the holder that is said to support the action against them.

As s 82(1) makes clear, s 77 will apply where the relevant action is on the ground that the holder has contravened a condition of their certificate, or has failed without reasonable excuse to comply with a requirement in connection with an investigation under ch 7 of the Uniform Law (which relates to investigations of matters including trust account records and complaints). A ground of this kind might be established by a finding resulting from a complaint or disciplinary matter, or by evidence or other probative information. It will also apply on the ground that a local regulatory authority has made a recommendation for immediate suspension when dealing with a complaint (under s 278) or when certain requirements imposed under the Uniform Law (such as requirements to produce documents and cooperate with investigations) remain unmet (under s 466(7)). Again, it would be expected that there would be evidence or other probative information supporting the authority’s recommendation. Finally, it will apply on the ground that the designated local regulatory authority reasonably believes that the holder is unable to fulfil the inherent requirements of an Australian legal practitioner, a matter on which it would likewise naturally be expected that there be supporting evidence or other probative information.

And, as s 82(2)(b) makes clear, s 77 can also apply where there has already been a conviction of one of the three categories of offence. In such cases, a body of evidence will have been assessed and subjected to an adjudication or plea. Even where s 82(2)(a) is engaged, although s 77 can apply where a charge of one of those three categories of offence ‘has not been determined’, the matter the subject of the charge might not be limited to a bare charge-sheet. It might have progressed to a committal. Even if not, it might be supported by at least some of the evidential material likely to be included in a prosecution brief in due course.

Likewise, in the circumstances of both automatic and designated show cause events under pt 3.5 div 4, in many such cases it is naturally to be expected that the holder of the practising certificate will already know of the matter that has arisen, and the Board will have access to evidence or other probative information — not merely bare allegations.

I return to the implications of the above analysis later in these reasons at paragraphs 66 and 67 below.

The debate about ‘immediately’

Section 77 uses the word ‘immediately’ twice, once in sub-s (1) and again in sub-s (2). The first time it is used at the end of a sentence, ‘… the designated local regulatory authority considers it necessary in the public interest to vary or suspend the certificate immediately’. The second time it is used at the start, ‘[T]he designated local regulatory authority may immediately vary or suspend the certificate, by written notice ...’. I place no real weight on the positioning of the word in different places in the two sentences. In my view, the word is intended to carry the same meaning and effect in both.

Ms Tricarico submitted that ‘immediately’ referred to the effect of the notice of suspension once given under s 77(2), while at the same time acknowledging that it indicated that the process of consideration of whether to exercise power was likely to be taking place in urgent circumstances. Senior counsel for Ms Tricarico initially imputed to the Board an interpretation of s 77 by which ‘immediately’ refers to the time within which consideration must occur. However, senior counsel for the Board disclaimed any such interpretation, noting that some time must be accorded for the process of consideration. His construction was as follows. If, after commencing upon consideration of the matter, the delegate formed the view that it was necessary in the public interest to immediately suspend the certificate, then this may[21] (or perhaps, must[22]) occur forthwith and without advance notice to the holder.
[21]Mr Senathirajah KC submitted that whether or not the designated local regulatory authority gave notice before making a s 77 suspension decision was a matter within its discretion: 17 April 2025, T60.12.
[22]Mr Senathirajah KC also submitted that, as a matter of parliamentary intention, where the authority formed the opinion in s 77(1) ‘it makes no sense for the practitioner to be given notice and/or an opportunity to be heard’, because ‘the assessment which comes before it — that is, immediacy is required in the public interest — precludes … a logical basis why any additional time should then be given by way of advance notice or an opportunity to be heard’: 17 April 2025, T62.6–19.

In my view, the word ‘immediately’ does not merely refer to the notice of suspension having effect from the moment it is given, nor merely suggest that the designated regulatory authority is likely to be acting in urgent circumstances. I disagree with Ms Tricarico’s contrary submission. The word, as used in s 77(1) and (2), characterises, along the lines submitted by senior counsel for the Board, an opinion reached by the Board or its delegate — it is a description of an opinion about how soon the suspension is needed. This is the natural reading of the text, and is supported by the context. The power of immediate suspension under s 77 arises or can arise ‘if the designated local regulatory authority is considering whether to start, continue or complete action under this Part in relation to a certificate’.[23] Section 77 contemplates that, during that consideration, the Board or its delegate may form the view that immediate suspension is necessary, in the public interest.
[23]I note that the heading to s 77 refers to ‘suspension before or during consideration …’ but give greater weight to the terms of s 77(1), which are more precise than the heading.

At this point, my interpretation diverges from what I understood to be the construction advanced on behalf of the Board. At times during his submissions, senior counsel seemed to be contending that at the point that the delegate formed this opinion, there was no alternative and the certificate had to be suspended forthwith, without notice. This, so the argument seemed to go, flowed from the legislature’s choice of words for the relevant criterion: ‘necessary in the public interest’ — if the delegate considers that immediate suspension is necessary in the public interest, that indicates that the legislature requires immediate suspension, forthwith and without notice.[24]
[24]Eg Mr Senathirajah KC, 17 April 2025, T62.6–19.

There is some force is this contention. However, I consider it to be outweighed by the cumulative effect of three considerations, two textual and the third an implication.

The first textual consideration is that s 77(1) begins with the words ‘[T]his section applies if …’. The provision does not in terms impose a duty, but merely defines the criteria that must be met for the remaining provisions of s 77 to apply.

The second textual consideration is that s 77(2) is not framed in the ordinary language expected where the legislature imposes a duty, but uses the word ‘may’, which is more apt to describe a discretion or choice. This suggests that where the Board or its delegate forms the opinion in s 77(1) that immediate suspension is ‘necessary in the public interest’, it is a choice to immediately suspend that arises, not a duty.

An alternative construction would be that: the moment the designated local regulatory authority ‘considers it necessary … to vary or suspend the certificate immediately’, an implied duty to do so arises, that opinion is immutable until the duty is performed, and the use of the word ‘may’ in s 77(2) is merely facultative. But I think that construction is not to be preferred, especially in light of the third consideration, to which I now turn.

The third consideration — the implication — is that the observance of procedural fairness is an implied condition unless and to the extent that procedural fairness is clearly excluded,[25] and this generally requires clear language, or else an intended statutory operation that is inconsistent with procedural fairness.[26] Clear language expressly excluding procedural fairness could have been employed but was not. Is the intended operation of the statute inconsistent with procedural fairness? I think not. Section 77 can operate perfectly well on its terms with or without advance notice being given to the holder. In Balzola, Davies J recognised this in noting that (emphasis added):[27]

… where a suspension is imposed under s 77, the suspension may be imposed without notice being given, but if the solicitor makes written representations about the suspension the Law Society must consider those representations. Sections 77 and 78 when read together suggest that in some cases notice might be given by the Law Society before a suspension is imposed, but in others the representations will be made after the suspension is imposed, with the Law Society being able to revoke or vary or lift the suspension whether in response to those representations or not.

[25]CNY17 [16] (Kiefel CJ and Gageler J).

[26]Eg PlaintiffS10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 667–668 [97]–[100] (Gummow, Hayne, Crennan and Bell JJ).

[27]Balzola v Council of the Law Society of NSW [2018] NSWSC 849, [12] (Davies J).

In my view, where the Board (or its delegate) forms the opinion in s 77(1), it retains a discretion to choose whether to suspend the relevant holder’s certificate immediately and without advance notice granting the holder an opportunity to be heard, or to allow the holder to be heard before acting on that opinion.

Other indications that there is a discretion and how it should be approached

It is true, as the Board submitted, that s 77 can apply before the Board has started any action under pt 3.5, and it can do so where there is a charge of a serious offence that is not yet determined. So much is made clear by reading s 77 together with s 82(2)(a).

However, s 77 can also apply in a wide array of other circumstances, as I have explained in paragraphs 46 to 53 above. The prospect that it will apply on the basis of a bare charge-sheet, and at a time before the Board or any other local regulatory authority has started action under pt 3.5 of the Uniform Law or any complaint or disciplinary process, is only one such circumstance. It is also one that lies at or near the outer boundary of cases in which s 77 will apply, in the sense that it is likely to afford the Board the least available information about the merits of taking action under pt 3.5, compared with all or most other circumstances in which s 77 can apply.

The analysis in paragraphs 46 to 53 above demonstrates that in many (and perhaps most) cases in which s 77 can apply, either or both of the following will hold true: the holder will already be on notice of allegations against them that form the basis for the relevant action under pt 3.5, and the designated local authority can be expected to have access to at least some findings, evidence or otherwise relevant information in support of those allegations.

A case where neither of these holds true will be something of an outlier. If the holder is not already on notice of the relevant allegations, and the Board does not have access to any information supporting them, the power in s 77 may still be available, but care is required before it is exercised.

A decision to impose an immediate suspension, without notice, in such circumstances may more easily fail to meet the requirements of procedural fairness and legal reasonableness.

The Board’s construction of s 77 and assertion of interdependency of the grounds

Each of the three grounds of review advanced by Ms Tricarico calls for careful consideration of the proper interpretation of s 77.

The gist of the Board’s construction of s 77 was that the bias rule, the regime for potential lifting of suspension under s 78(1) on the basis of post-decision representations under s 77(3), and the statutory avenues of appeal and stay, exhaustively define the content of natural justice where s 77 applies, once an opinion is formed in accordance with the criteria in s 77(1). In this regard, the Board contended that the delegate’s opinion that the criteria in s 77(1) were met might itself be challenged by way of judicial review, but that opinion was otherwise conclusive in ascertaining the content of the hearing rule of procedural fairness. Where that opinion was unvitiated by jurisdictional or legal error, the content of procedural fairness did not extend to the provision of notice before the decision is made. In this way, the Board contended that ground 1 of the originating motion could not succeed unless one of the remaining grounds succeeded first.

As I explain in detail under the heading for ground 1 below, I do not agree with this construction and contention. In my view, the Court must form its own view of what procedural fairness required in all the circumstances, irrespective of whether the delegate’s opinion on that matter was affected by jurisdictional or legal error.

In any event, I am satisfied that the delegate not only failed to provide procedural fairness to Ms Tricarico, but also made a decision that was contrary to the standard of legal reasonableness that applied to s 77 and was therefore beyond power.

I will now explain my reasoning for upholding each of the three grounds.

Ground 1: Procedural fairness was not accorded in making the decision

Ms Tricarico submitted that the content of procedural fairness in any given case depends not only on the statutory regime, but on all the circumstances of the case. She submitted that, although s 77 might permit an immediate suspension decision to be made without notice in some cases, this was not such a case. In the circumstances of this case, she contended that procedural fairness required advance notice and an opportunity to respond before her practising certificate was suspended.

In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs, the High Court said:[28]

It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. …

[28](2006) 228 CLR 152, [26] (The Court, constituted by Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

The Board placed heavy reliance on the first part of this passage, and on its interpretation of the statutory framework, which I have already summarised in paragraph 71 above. As noted there, the Board submitted that the delegate’s opinion that immediate suspension was necessary in the public interest, provided it was validly reached, relevantly controlled the content of procedural fairness the delegate was required to provide, and obviated the need for advance notice before making his decision.

In support of its statutory construction, the Board relied on aspects of the Uniform Law that indicated a s 77 suspension decision could be made without notice to the practitioner, and that the practitioner would in the event of a suspension without notice be able to seek redress through a number of avenues. In particular, the practitioner would be able: to make representations after such a decision seeking its revocation; to seek de novo appeal in VCAT; and to seek a stay from either VCAT or the Court. The Board relied on Twist v Randwick City Council[29] as an illustration that avenues of this kind can support a conclusion that no prior hearing was required. The Board also relied on the criteria in s 77(1) as a demonstration of parliamentary intention that a prior hearing was not required. In a case where its delegate had validly formed the opinion that it was necessary in the public interest to suspend the practising certificate immediately, the express avenues constituted the full content of the hearing rule of procedural fairness required in all circumstances, to the exclusion of advance notice being required. The bias rule also would apply. The statutory construction the Board gave to the regime did not invite any conclusion that the legislature had excluded procedural fairness, and indeed many of its key features would remain. The only real limitation on its content was the absence of a requirement for notice in advance of immediate suspension where the delegate validly formed the opinion in s 77(1) that this was required in the public interest.
[29](1976) 136 CLR 106 (Twist).

After careful deliberation, I have decided that the Board’s statutory construction argument is incorrect, on two key bases.

First, for the reasons I have already explained in paragraphs 58 to 64 above, I consider that a designated local regulatory authority that formed an opinion that immediate suspension is necessary in the public interest on the information before it has a discretion whether to give notice to the holder before making a decision to suspend under s 77(2).

Secondly and relatedly, I do not agree with the Board’s submission that, where its delegate decides that it is necessary in the public interest to suspend a practitioner’s practising certificate, the requirements of procedural fairness are then limited in all circumstances to the express statutory avenues in the Uniform Law, obviating any requirement for advance notice. In my view, this submission involves circular reasoning, conflates the Court’s function of reviewing the formation of the delegate’s opinion posited in s 77 for legal error with its function of ascertaining the requirements of procedural fairness in all the circumstances, and fetters the approach properly to be taken to the latter function.

The Board’s argument involved circular reasoning in the following way. Adherence to the requirements of procedural fairness is an implied condition of an exercise of a power that adversely affects interests, yet the Board’s submission would have the consequence that the question of denial of procedural fairness cannot be scrutinized on the basis of an opinion that was itself reached without according procedural fairness.

In my view, the solution to this apparent conundrum lies in the statutory interpretation analysis in paragraphs 58 to 64 above. Once the Board or its delegate has formed the opinion in s 77(1), the remaining provisions of s 77 apply, but that does not mean the Board or delegate must immediately suspend the holder’s certificate. They retain a discretion to give the holder an opportunity to dissuade them from taking that step. It is at this point that the requirements of procedural fairness must be addressed. The Board or delegate may have reached their opinion in terms of s 77(1) without having accorded the holder an opportunity to be heard, but they should not necessarily and in all cases proceed to a decision under s 77(2) suspending the certificate before giving the holder that opportunity. In some cases procedural fairness will require that notice and an opportunity to respond be given.

The Board’s approach would conflate two functions (evaluation of the requirements of procedural fairness and judicial review of the reasonableness of the delegate’s opinion that immediate suspension was necessary) and fetter the Court’s proper approach, in the following ways:

(a) The evaluation of what procedural fairness required in all the circumstances of the case is a function the Court must perform. This follows from first principles, given that it is the relevant function of the Court to determine the legality of the relevant decision-making,[30] and that ascertainment of the content of procedural fairness is integral to that function. It also accords with what Finn J said (albeit in passing) in South Australia v Slipper:
[30]See, eg, Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–36 (Brennan J).

… it is for the Court to determine what procedural fairness requires a decision maker to do if he or she is not to be found to have acted unfairly in the circumstances … .[31]

(b) The question of whether procedural fairness required advance notice and the question of whether legal error affected the formation of the delegate’s opinion under s 77 are not identical questions. Although those two questions might in many cases be determined by considerations common to each, there may be cases in which different answers are given to each. It is conceivable that the Court might find that procedural fairness required advance notice to a practitioner even if the delegate considered that the public interest necessitated immediate suspension, and the Court might find this even if not satisfied that the delegate erred in law in forming that opinion.

[31](2004) 136 FCR 259, [113(vi)] (Slipper), as part of a wider proposition cited from Rose v Bridges (1997) 79 FCR 378, 386.

Having concluded that the delegate’s opinion does not control the content of what procedural fairness required in this case, my next task is to form my own view of that matter. In performing that task, I have been guided by well-established principles.[32] For the reasons that follow, I have concluded that in all the circumstances of this case procedural fairness required that Ms Tricarico be given advance notice and an opportunity to respond before the s 77 suspension decision was made.
[32]Slipper 284–285 [113] (Finn J).

On 14 March 2025, the Board (through its delegate) was at the very outset of considering whether to start action under pt 3.5. There was no indication that Ms Tricarico had ever been involved in a process that might have given her notice of the allegation against her, and there was no information available to the Board from any such process. Having regard to the very early stage of the matter in the overall scheme of the Uniform Law, this case called for great care in exercising the discretion whether to immediately suspend.

The information before the delegate consisted of nothing more than the charge-sheet unsupported by any statement or evidence of any kind. The allegation against Ms Tricarico was not supported by any evidential material. The allegation amounted to brief, unverified particulars on a document signed by a police officer commencing a criminal proceeding against Ms Tricarico. There was no way of assessing whether there was a prospect that the charge might in due course be proven.

Ms Tricarico’s senior counsel pointed out that there is no requirement of law for a charge-sheet to be verified by the informant in any way, and that any member of the public may file one in the Magistrates’ Court. In this case, the informant was a police officer, but the law accords a charge-sheet filed by a police officer no greater weight. Senior counsel for the Board sought to respond by tendering a police manual, but this document had not been placed before the delegate, and the tender was not ultimately pressed. Instead, senior counsel submitted that I should take judicial notice that there would be some form of accountability within Victoria Police for the filing of charge-sheets. So much may be accepted, but I do not know what form of accountability that might be. I place very little weight on this submission. It does not elevate the charge-sheet to being anything other than a bare allegation, unsupported by any form of verification, findings, witness statement, evidence, or other probative information.

A regime for post-decision avenues of redress will not always suffice to meet the requirements of procedural fairness.[33] The Board’s reliance on Twist is misplaced, because the building demolition order in that case did not immediately require demolition, and the legislature had ‘provided an opportunity for the owner of a property … to be heard before his rights are finally affected’.[34] In other words, the legislation provided a period of grace before the owner was required to comply with the notice, and during that time, the owner could seek redress. Here, in contrast, the s 77 suspension decision immediately suspended Ms Tricarico’s practising certificate. Although interim in nature it had an immediate substantive effect. The suspension of Ms Tricarico’s practising certificate — even on a temporary basis for up to 56 days under s 77 — was likely to have serious and perhaps irreparable effects on Ms Tricarico’s legal practice. It could certainly be expected that there would be a significant adverse impact on the continuity of her practice and on her reputation.
[33]Eg Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 99-102 [146] (McHugh J). See also Garde-Wilson v Legal Services Board (2008) 19 VR 398, especially [116] (Dodds-Streeton JA).
[34](1976) 136 CLR 106, especially 110 (Barwick CJ).

The seriousness of the consequences to Ms Tricarico has an important influence on my conclusion that fairness required advance notice to her and some opportunity to respond, even if only in ‘attenuated form’.[35]
[35]See Slipper [113(iv)] (Finn J).

A suspension of a practising certificate before giving the holder an opportunity to respond is inherently unfair to that person. The potential for redress via the avenues of post-suspension representations, de novo appeal and stay ameliorate the inherent unfairness of a suspension without notice to some extent, but not completely. Nevertheless, in urgent circumstances procedural fairness may not require notice to be given. It has long been recognised that in some circumstances the substantive content of the hearing rule will be reduced ‘almost to nothingness’.[36] For example, if it had been demonstrated that there was a real danger of similar conduct occurring, procedural fairness would probably not have required advance notice. However, that was far from the case here.
[36]Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234, 240-242 (Wilcox J); Slipper [113(iii)] (Finn J). See also CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, [367] (Gageler J).

The conduct set out in the charge-sheet was alleged to have occurred more than six years earlier. There was no evidence or suggestion that Ms Tricarico was engaging, or would in future engage, in any further conduct of the kind alleged. The Board accepted that the s 77 suspension decision was not made on the basis of any risk of further conduct by Ms Tricarico of the kind alleged.[37] The delegate made the s 77 suspension decision purely on the basis of his opinion about the impact of the allegation in the charge-sheet and any continued legal practice by Ms Tricarico on public confidence, judicial trust and confidence, and the trust and confidence of other lawyers.
[37]Mr Senathirajah KC, 17 April 2025, T84.25–85.3.

In all these circumstances, and given the absence of any risk of actual conduct of concern, it is hard to understand why the delegate considered that Ms Tricarico’s certificate had to be suspended immediately. The reasons were insufficiently cogent to justify doing so, and so procedural fairness required notice. I return to this point in the context of the standard of legal reasonableness, below.

In my view, in all the circumstances noted above, procedural fairness required the delegate to give advance notice to Ms Tricarico of his opinion that immediate suspension of her practising certificate was necessary in the public interest, and to give her a reasonable opportunity to respond. Ms Tricarico was entitled to an opportunity to dissuade the delegate from that opinion, and to persuade him not to serve a notice of immediate suspension of her practising certificate pursuant to s 77(2). The s 77 suspension decision was made in breach of these requirements of procedural fairness.

A denial of procedural fairness will give rise to jurisdictional error if it was material to the outcome, in the sense that there is a realistic possibility that the outcome might have been different had the denial not occurred.[38] Ms Tricarico submitted that the breach of procedural fairness was material, relying on recent High Court authority.[39] Neither party addressed materiality in detail. The Board did not submit that Ms Tricarico had failed to demonstrate the materiality of the alleged failure to accord procedural fairness, although the Board pointed to her failure to make written representations pursuant to s 77(3).
[38]See, eg, MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; Nathanson v Minister for Home Affairs [2022] HCA 26.
[39]LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12.

I am satisfied that the outcome might have been different if the delegate had given Ms Tricarico notice and opportunity to persuade him against an immediate suspension. There are various matters that Ms Tricarico might have advanced, had she been given that opportunity. She might have consented to conditions of the kind in her undertakings to the Court on the hearing of the stay application. That might have affected the outcome, resulting in a variation rather than suspension of her practising certificate.

Technically speaking, it may also be arguable that Ms Tricarico is entitled to at least certiorari, even if a denial of procedural fairness occurred that is not established to have been material to the outcome. Certiorari is not limited to cases of jurisdictional error.[40]
[40]Cf Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4, [77]–[78] (Gageler J).

For these reasons, I am satisfied that I should quash the s 77 suspension decision.

Grounds 2 and 3: The legal unreasonableness grounds

Strictly speaking, it is unnecessary for me to determine the second and third grounds. However, I heard full argument on them, and it may be useful if I express my conclusions on them, in brief terms.

As already noted, it is assumed that Parliament intended the power in s 77 to be exercised reasonably — ‘in accordance with the rules of reason and justice’.[41] Within the bounds of legal reasonableness there is an area within which a decision-maker has a ‘genuinely free discretion’,[42] or ‘decisional freedom’.[43] In this area there is scope for the designated local regulatory authority ‘to give effect to [its] view of the justice of the case’,[44] provided this view is within the scope of the purpose of the enactment[45] and is ‘reached by a process of reasoning’.[46]
[41]Li [23]–[24] (French CJ); [63]-[66] (Hayne, Kiefel and Bell JJ); see also [88]–[90] (Gageler J); Sharp v Wakefield [1891] AC 173, 179 (Lord Halsbury).
[42]Li [66] (Hayne, Kiefel and Bell JJ).
[43]Ibid [28] (French J).
[44]Ibid [23] (French CJ), [109] (Gageler J); Klein v Domus Pty Ltd (1963) 109 CLR 467, 473 (Dixon CJ, McTiernan and Windeyer JJ agreeing); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1178 [69]; 198 ALR 59 at 75-76.
[45]Ibid.
[46]Li [23] (French CJ).

Here, within those bounds, the Board and its delegate had decisional freedom to evaluate whether immediate suspension of the practising certificate was necessary in the public interest. Although the evaluation a public interest criterion confers decisional freedom of considerable breath, the evaluation of an act being ‘necessary’ does not. As Beech-Jones J has said:

… the high level of persuasion that inures in the word “necessary” means that there is scope for the practitioner to either agree or have imposed upon them conditions falling short of suspension that provide protection to clients and the public. In such circumstances the Court may not be positively satisfied that it is “necessary” that the practising certificate be suspended.[47]

[47]Berger v Council of the Law Society of NSW [2013] NSWSC 1080, [20] (Beech-Jones J) (Berger). Berger was decided by reference to the predecessor provision in New South Wales (s 548 of the Legal Profession Act 2004 (NSW)), but has been recognised as remaining applicable to s 77 of the Legal Profession Uniform Law (NSW): MN Legal and Management Consultants Pty Ltd v The Council of the Law Society of NSW [2018] NSWSC 1410, [45] (Davies J). The reference to the Court in this quotation is explicable by the different institutional arrangements in New South Wales, where the Supreme Court of New South Wales has a de novo appellate role.

It will be rare for the standard of legal reasonableness to be infringed, and the Court must be mindful not to adopt the language of legal unreasonableness as a cover for merits review.

Ms Tricarico submitted that the s 77 suspension decision was made contrary to the standard of legal reasonableness in two ways.

First, she submitted that the decision lacked an evident and intelligible justification and was in this sense not rationally open.[48] In this regard, she pointed to what might amount to a flaw in the charge,[49] and also contended that the delegate had employed reasoning that was vitiated by a significant leap in logic from the charge-sheet to a finding of ‘unacceptable risk’.
[48]Li [76] (Hayne, Keifel and Bell JJ); see also [25] (French CJ).
[49]No oral submissions were advanced in support of this contention. I do not think it was irrational or unreasonable for the delegate to rely on the charge-sheet as framed, irrespective of whether there may be a flaw in it.

Secondly, she submitted that, even if there was a rational connection between the charge-sheet and the finding of unacceptable risk, it was otherwise unreasonable for the delegate to have immediately suspended her practising certificate, merely on the basis of the information before him, and without notice to her.

Ms Tricarico accepted that an evaluation of the ‘public interest’ conferred broad decisional freedom, but correctly observed that the evaluative task was not unbounded and must reflect the relevant statutory purposes. She submitted that notions of ‘confidence’ in the legal profession are not included in those purposes. In particular, she submitted that the perceptions of confidence enumerated in the Cummins factors are not included in the statutory objectives of the Uniform Law or the Board. In support of her argument about the reasoning lacking an evident and intelligible justification, Ms Tricarico also relied on Assistant Minister for Immigration and Border Protection v Splendido[50] as an illustrative example. That case provides an example of a court forming its own view about whether a conclusion expressed by a decision-maker about an unacceptable risk had a rational, probative foundation.[51]
[50](2019) 271 FCR 595 (Mortimer, Moshinsky and Wheelahan JJ).
[51]Ibid [131]–[132] (Wheelahan J).

The Board disputed these submissions, noting correctly that the Cummins factors have been recognised as informing the public interest considerations attending a decision under s 77,[52] and also relying on a case involving a similar suspension power in the medical context, Medical Board of Australia v Liang Joo Leow.[53] In that case, Niall JA (as his Honour then was) said that in some cases it may be necessary to take action to ‘reassure the public’ (emphasis added):

In circumstances where the allegations, if substantiated, may reflect on the practitioner’s fitness to hold registration and may ultimately justify suspension or cancellation, it may be necessary, in the public interest, to take immediate action rather than await the outcome of the charges. In some cases, immediate action will be required because of a risk to patient safety or well-being. It may be possible for the Board to conclude that there is a serious risk to persons based on the material it has, even though criminal charges remain outstanding. In other cases, it may be necessary to take action to reassure the public that the regulatory system is safe and adequate to protect the public and the reputation of the profession as a whole.
As a consequence, the Board may conclude, in those circumstances, that it is in the public interest to take immediate action in order to address the question of public confidence. The relevant public confidence to which the example is directed is confidence in the provision of services by health practitioners.[54]

[52]MN Legal and Management Consultants Pty Ltd v The Council of the Law Society of NSW [2018] NSWSC 1410, [101]–[102] (Davies J) (MN Legal).

[53][2019] VSC 532 (Niall JA).

[54]Ibid [81]–[82].

I accept that the Cummins factors are not included in the express statutory objectives of the Uniform Law and the Board, but (as the Board submitted), that does not mean that they are outside the purposes of the Uniform Law. I reject Ms Tricarico’s submission that the Cummins factors are outside the purposes of the Uniform Law. I accept the responding submission of the Board that the maintenance of confidence in the legal profession is to be discerned as a legislative purpose of the Uniform Law, even though it is not listed in s 3.

Nevertheless, the reasoning of the delegate is, at best, hard to follow. The initial steps in that reasoning are clear: building on the reference to the Cummins factors (in paragraph 7 of the letter), subparagraphs 11(a), (b) and (c) of the delegate’s letter reason sequentially that the alleged conduct was of the utmost seriousness, was prejudicial to the administration of justice and fundamentally incompatible with the required standards, and so permitting Ms Tricarico to continue to practise while under a charge of attempting to pervert the course of justice would give rise to a risk of loss of public, professional and judicial confidence.

However, there then appears to be a gap in the delegate’s process of reasoning between those preceding steps and the conclusions in subparagraphs 11(d) and (e) of the delegate’s letter that ‘to allow her to continue to practise puts the administration of justice at risk’ and that there was ‘an unacceptable risk to the public, the rest of the profession and to the administration of justice necessitating immediate suspension’.

The references to ‘risk’ in these conclusions make it sound like the delegate considered that Ms Tricarico would engage in conduct similar to the kind alleged in the charge-sheet.

However, as I have already noted, there was no suggestion that Ms Tricarico presented any risk of engaging in conduct of the kind alleged against her. In short, there was no imminent or foreseeable risk of such conduct. How, then, did the risk perceived by the delegate arise?

The risk was perhaps the abstract one developed in the Board’s submissions in this Court, by reference to Medical Board v Leow: the risk that members of the public would not seek legal services and access to justice from the profession. There is some support for this in the reference in subparagraph 11(c) of the letter to the allegation ‘undermin[ing] the trust that can be placed in lawyers by the public’ and to the delegate’s earlier reference to the Cummins factors.

Although abstract and a little elusive, I do not think that this process of reasoning is unintelligible. I do not think that there was a material gap in logic.

However, the elusive and abstract nature of the delegate’s reasons for suspending the practising certificate is of great importance when one considers the paucity of the information on which the decision was based, the fact that the decision was to immediately suspend Ms Tricarico’s practising certificate without notice to her, and the fact that other courses may have been open, for example (as suggested by Beech-Jones J in the passage quoted in paragraph 101 above) a variation of the certificate by the imposition of conditions to address and minimise any loss of confidence.

As her second argument, Ms Tricarico submitted that it was disproportionate (a ‘sledgehammer’)[55] or otherwise unreasonable for the delegate to have immediately suspended her practising certificate, on the mere basis of the information before him, and without notice to her.
[55]Li 351–352 [30] (French CJ).

I agree with this submission. The use of the immediate suspension power on the mere basis of the material before the delegate and without notice to Ms Tricarico did not meet the standard of legal reasonableness to which the power was subject.

The imposition of an immediate suspension without notice was the most far-reaching outcome available to the delegate at the time. The ramifications of immediate suspension for the holder could reasonably be expected to be severe. It is an emergency measure.[56] Yet the delegate had only a flimsy basis for making that decision — a bare allegation, unsupported by any evidence or other probative information. On the basis of the charge-sheet alone, there could be no meaningful process of the kind that should have occurred. Although the delegate was not required to predict the outcome of the charge, the appropriate approach was one that required him:

…to be satisfied that the available material … against a practitioner demonstrates that the continued holding of a practising certificate by them pending its determination presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended.[57]

[56]Berger [16] (Beech-Jones J); MN Legal [44]–[45] (Davies J).

[57]Berger [17]–[18] (Beech-Jones J); MN Legal [44]–[45] (Davies J).

There was no ‘available material’, only the charge-sheet. Yet the delegate chose not to avail himself of the opportunity to augment the information before him by giving Ms Tricarico an opportunity to be heard.

Most significantly of all, there was no actual urgency, in the sense of any imminent risk of conduct occurring of the kind alleged. The risk found by the delegate was of a highly abstract nature: a risk to confidence in the justice system and the system for regulation of practitioners.

In those circumstances, the delegate’s opinion that the case was so urgent that only an immediate suspension without notice would meet the public interest was not open to him, and was outside the boundaries of legal reasonableness. Confidence in the justice system is not so brittle and fragile a thing that only an immediate suspension would do. On the contrary, a cogent argument could be made that a rush to impose an immediate suspension without notice might well undermine confidence in the justice system and in the system for regulation of practitioners.[58] However that may be, a measured and methodical approach, involving notice to Ms Tricarico and some modest delay in making the decision, would certainly not have presented any risk to the objectives of maintaining such confidence or to the Cummins factors.
[58]See, eg, Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143, [37] (Warren CJ, Osborn JA and Cavanough AJA). Although the context of this case was very different, the principle is applicable here.

In a case of suspension without notice in a medical context, it was regarded as significant that ‘there was no sound reason for the plaintiff not to be given an opportunity to put his position, even if it was to do no more than make a blanket denial’.[59] The same could be said here. Although that remark was made in the context of procedural fairness, it is equally relevant in my view to the analysis concerning the standard of legal reasonableness, and what ‘the rules of reason and justice’ required.
[59]X v New South Wales Medical Board (1993) 32 ALD 330, 337 (Levine J).

In all the circumstances, it was not open to the delegate to be satisfied that the abstract notion of public, professional and judicial confidence in the administration of justice necessitated immediate suspension of Ms Tricarico’s practising certificate, without notice to her or any delay to allow more information to be obtained or the imposition of conditions to be explored. Notice and an opportunity to respond had to be given to Ms Tricarico before any reasonable decision under s 77 could be made.

For all these reasons, the s 77 suspension decision was legally unreasonable, and is liable to be quashed or declared invalid on that ground, too.

Conclusion and orders

For the above reasons, I will quash the s 77 suspension decision.

I will hear the parties on the question of whether I should also make the declaration sought in the originating motion, and on the question of costs.

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[2025] VSC 242

7 May 2025; revised 8 May 2025