Tuferu v Legal Services Commissioner
[2013] VSC 645
•25 November 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 4003
| MOHAMMED HABIB TUFERU | Appellant |
| v | |
| MICHAEL KEITH MCGARVIE - LEGAL SERVICES COMMISSIONER | Respondent |
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JUDGE: | ZAMMIT AsJ | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 18 October 2013 | |
DATE OF JUDGMENT: | 25 November 2013 | |
CASE MAY BE CITED AS: | Tuferu v Legal Services Commissioner | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 645 | |
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JUDICIAL REVIEW AND APPEAL – Application for leave to appeal from the Victorian Civil and Administrative Tribunal – Professional Misconduct – Appealing aspect of penalty imposed – Whether Tribunal took into account irrelevant considerations or ignored relevant considerations – Did Tribunal err by failing to provide sufficient reasons – Was penalty manifestly excessive - s 4.4(a) of the Legal Profession Act 2004 - Breach of rule 18.4 Professional Conduct and Practice Rules (As Amended) 2005.
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APPEARANCES: | Solicitors | |
| For the Plaintiff | Mr A Scriva | Pinto Law |
| For the Defendant | Ms S Cherry | Legal Services Commissioner |
HER HONOUR:
Introduction and summary
On 31 July 2013, the Victorian Civil and Administrative Tribunal (“VCAT”) found the appellant, Mohammed Habib Tuferu guilty of two counts of professional misconduct within the meaning of s 4.4(a) of the Legal Profession Act 2004 and in breach of rule 18.4 of the Professional Conduct and Practice Rules (As Amended) 2005.
VCAT made two orders which are relevant to the leave to appeal. First, VCAT ordered that appellant’s local practising certificate be cancelled forthwith.[1] Second, VCAT ordered that the appellant may not apply for a local practising certificate before 1 August 2014 and until he has completed the course in legal ethics as approved by the Legal Services Board.[2]
[1]Order 6 of Legal Services Commissioner v Tuferu (Legal Practice) [2013] VCAT 1438.
[2]Order 7 of Legal Services Commissioner v Tuferu (Legal Practice) [2013] VCAT 1438.
These orders are the subject of the current proposed appeal. The appellant does not dispute the finding by VCAT of professional misconduct. He seeks only to appeal the aspect of the penalty imposed upon him in the above two orders.
The appellant relies upon an affidavit sworn on 30 September 2013 and written submissions.
The respondent opposes the appellant’s leave application. The respondent relies upon the affidavit of Sarah Lethlean sworn 16 October 2013 and written submissions.
The questions of law in the proposed notice of appeal[3] are:
[3]Exhibit MTH-11 to the Affidavit of Mohammed Habib Tuferu (sworn 30 September 2013).
A Did the Tribunal take into account irrelevant considerations and ignore relevant considerations to find aggravating circumstances in relation to charge one?[4]
B Did the Tribunal err in law by failing to provide sufficient reasons for its decision?
C Was the cancellation of [Mr Tuferu’s] practising certificate manifestly excessive and, or, unnecessarily punitive?
[4]Charge 1 is defined in the VCAT application dated 20 March 2013 as: Professional misconduct within the meaning of section 4.4.4(a) of the Legal Profession Act 2004 by dealing directly with an opponent’s child (being child 2) in relation to a case for which the opponent was instructed, without the opponent’s consent and in contravention of Rule 18.4 Professional Conduct & Practice Rules (as amended) 2005.
The appellant then sets out a number of grounds of appeal relating to the questions of law to which I will turn to in due course.
Principle of leave to appeal
The appellant seeks leave to appeal against the order of the Tribunal pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”).
Section 148(1) of the VCAT Act provides that a party may appeal from the decision of the Tribunal on a question of law. At this stage of the application for leave to appeal, it is not necessary for the appellant to prove that the Tribunal actually made errors upon which he intends to rely. It is sufficient if the appellant is able to show that there is a real or significant argument to be put that error exists.[5] Even then, the decision to grant leave is discretionary.
[5]Secretary of the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 335 (Phillips JA); and Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48.
In summary, the principles upon which the Court determines an application for leave to appeal under s 148 are as follows:
(a) the appellant must at least identify a question of law (as distinct from a question of fact), being a question important to the appeals success, but on the application for leave the appellant need not show that error below is established; that is for the appeal itself.
(b) ordinarily, the applicant should show that there is a real significant argument to be put that error exists, but it is not possible to lay down in advance any standard of satisfaction, for much may depend upon the importance of the question of law to the remedy to be sought.
(c) sometimes the public or general importance of the identified question of law may be a consideration on the application for leave. In such a case, it might be sufficient for the applicant to identify the question of law and its general and public importance.
(d) the decision below should be “attended by sufficient doubt to justify the grant of leave to appeal”. Once a question of law has been identified which bears directly upon the relief which will be sought on the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, it may be supposed that leave will ordinarily be granted if the order below is a final order.
(e) where the order which is under challenge is final, the injustice of allowing the determination below and to stand uncorrected, if indeed it is attended by error, will be more readily discernible.
(f) ultimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that means justice to all parties, not just the applicant.
(g) the importance of the question, either generally or to the would be appellant in the particular case, will probably be irrelevant.[6]
[6]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 335-27.
The appellant’s attack on the Tribunal is based on whether VCAT’s conclusion or finding was open on the evidence before it. Ground B raises the issue of whether the sufficiency of the VCAT’s factual findings and reasons.
Several points may be made about challenges to conclusions reached by VCAT. The first is, while an appeal under s 148(1) is not a merits review, whether there was no evidence to support a factual finding is a question of law.[7] To establish an error of law, the appellant must show that the finding of fact made by VCAT was not open on the evidence, or unreasonable or perverse.[8] A finding of fact cannot be impugned if there was some evidence or other probative information supporting it. The starting presumption must be that the decision appealed from is correct. The decision cannot be impugned simply because the Court thought the finding was erroneous or against the weight of the evidence.[9] A finding of fact cannot be impugned unless it was not open to be made and further the finding was critical to the VCAT’s ultimate conclusion.[10]
[7]Kostas v HIH Insurance Services Pty Ltd (2010) 241 CLR 390, [91].
[8]Catch The Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207, [193].
[9]Director of Liquor Licensing v Kordister Pty Ltd & Anor [2011] VSC 207, [248].
[10]Psychology Board of Australia v Mair [2010] VSC 628, [14].
Impugning a finding of fact is a ground of review that is “narrowly available”.[11]
[11]Myers v Medical Practitioners Board of Vicotria(2007) 18 VR 48, [46].
In relation to Ground B of the proposed notice of appeal, it is open to a party to seek to challenge the sufficiency of the VCAT’s reasons. In Victoria v Turner,[12] Kyrou J observed that VCAT will commit a vitiating error of law if it –
· Fails to give reasons or gives reasons that omit a finding of a material question of facts; or
· Gives reasons that otherwise fail to disclose the path of reasoning for reaching its decision.[13]
[12](2009) 23 VR 110.
[13]Ibid [240].
Osborne J in Lucas v Transport Accident Commission[14] confirmed that it is not sufficient to establish an error of law to demonstrate that there is some defect in the logic of the reasons stated by the Tribunal. Eames J in Eiken v Housing Guarantee Fund,[15] observed that where the VCAT’s analysis of evidence is so deficient as to demonstrate a lack of logic or a failure in the process of reasoning, the analysis would constitute an error of law but the mere fact that the appellate court regarded the conclusion reached to be wrong would not establish error of law provided there was a rational basis on which the Tribunal could have reached that conclusion.
[14][2003] VSC 97, [10].
[15](2001) 17 VAR 324, [44].
In considering an application of this nature, courts have been concerned to respect the role entrusted by the legislature to the particular tribunal and not, in effect, subvert this position by seeking out error. Kirby J in Roncevich v Repatriation Commission,[16] said:
Court’s conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision in whether it has addressed the “real issue” presented by the contest between the parties.[17]
[16](2005) 222 CLR 115.
[17]Ibid [64].
In Vegas Nominees Pty Ltd v Werribee Sports and Community Club Inc,[18] Ashley J said:
This Court has said more than once that it should not examine briefly stated reasons by an expert tribunal in an over-legalistic manner or by the over zealous drawing of inferences in order to disclose some supposed error; although where unambiguous language is used, the user should be taken to mean what the words say. I should add that the Court is not entitled to interfere with the Tribunal’s decision unless it is satisfied that there was in fact a vitiating error of law. It is not enough for the appellant to show that the Tribunal’s reasons for its decision is so expressed as to suggest the possibility that it proceeded upon a wrong view of the law.[19]
[18](Unreported, Supreme Court of Victoria, Ashley J, 21 December 1994)
[19] Ibid 13 (citations omitted).
Ground C of the proposed notice of appeal seeks to interfere with the Tribunal’s broad discretion in relation to the disposition it imposed having made a determination that the appellant was guilty of two counts of professional misconduct.[20]
[20]The relevant sections of the Legal Profession Act 2004 are ss 4.4.16, 4.4.17 and 4.4.19.
As noted, the starting presumption must be that the decision appealed from is correct.[21] To interfere with the exercise of discretion, the Court should be satisfied that the result is “so unreasonable or plainly unjust that the appellate court may infer that there has been a failure to properly exercise the discretion which the law reposes in the Court of first instance”.[22]
[21]Oldaker v Currington [1987] VR 712, 718.
[22]Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627.
Background
The following matters were not in contention between the parties. The appellant at all material times was an Australian Legal Practitioner holding a current local practising certificate. He is a member of a local African Community and it appears that on various occasions, including the circumstances surrounding this case, he was called upon by members of the community for assistance.
A member of the community (the member) came to the appellant. The member is the father of a child and was involved at the time in a matter which was to come before the Children’s Court. There was an application for an intervention order against the member by the member’s child and there was also another matter before the family division of the Children’s Court involving the child.
The child and the Department of Human Services (“DHS”) were separately represented by legal practitioners. On a particular date, the appellant attended the Children’s Court and entered an appearance on behalf of the member. At court on the first occasion, the appellant became aware that the child and DHS were separately represented and engaged in discussions with those representatives.
On that occasion the appellant did not appear before the court and it appears that the hearing was adjourned to a later date.
Between the date of the first court hearing and the later adjourned date, the appellant met the child in the company of the child’s uncle and other adult male members of the community. The meeting took place at the appellant’s office. The child’s legal representative was not present. A statutory declaration was produced which was signed by the child and the appellant. This was done in the presence of the other adult males. The contents of the statutory declaration indicated that the child did not wish to proceed with the intervention order against his father. This conflicted with the instructions given to the child’s legal representative and the child’s protection worker.
Shortly after the meeting with the child, the appellant contacted an officer of DHS who was not a legal practitioner and on the same day faxed to that person a copy of the statutory declaration which had been made by the child.
The child’s legal representative first knew about the statutory declaration on the day before the adjourned hearing when a fax was received from an unknown source. The fax was the statutory declaration without any header sheet.
In a bundle of documents at exhibit MHT-1 to the affidavit of Mohammed Habib Tuferu is a letter from Judge Paul Grant, President, Children’s Court of Victoria to Mr M McGarvie, Legal Services Commissioner dated 16 September 2011 attaching a copy of a memorandum from Magistrate Jennifer Bowls detailing her complaint about the behaviour of the appellant in the Children’s Courts.
An application was lodged in VCAT by the respondent to this application, Michael McGarvie, Legal Services Commissioner (“LSC”) dated 20 March 2013.
The matter was heard before Member Butcher on 31 July 2013 and the orders were made on the same date.
The appellant declined to give evidence before the Tribunal. He appeared for himself before the Tribunal. The LSC at the Tribunal, put into evidence witness statements and/or affidavits from:
(a)Sarah Abalardo, dated 18 June 2013. Ms Abalardo is a legal practitioner acting on behalf of the LSC;
(b)Susan Vickers dated 7 November 2012. Ms Vickers is a child protection worker employed by DHS, involved with the child, the subject of the VCAT hearing;
(c)Daniel Dondo, dated 4 February 2013. Mr Dondo is a child protection worker employed by DHS, involved with the child, the subject of the VCAT hearing;
(d)Kathleen Corridon, dated 18 June 2013. Ms Corridon is a legal practitioner, acting on behalf of the child;
(e)Jonathan Hirst, barrister, dated 18 June 2013. Mr Hirst was counsel for the child, briefed by Ms Corridon.
(f)Robert Ingram, barrister, dated 19 June 2013. Mr Ingram was counsel for DHS.
The LSC also filed and served a notice to admit.
The appellant did not submit any witness statements and did not give evidence at the hearing before the Tribunal. The member specifically put to the appellant that if he wanted to give evidence about any of the factual occurrences he would be required to give that evidence on oath or affirmation. The member noted that if the appellant merely sought to make submissions then it would not be necessary for him to give evidence on oath or affirmation.[23]
[23]Transcript of proceedings, 14, lines 1 to 9.
Questions of law A and B/Grounds of Appeal 1, 2 and 3
The appellant first alleged question of law (question of law A) is that the Tribunal took into account irrelevant considerations and ignored relevant considerations when considering the aggravating circumstances in relation to charge one.
The first ground of appeal in support of the question of law A is that the:
The Tribunal erred in finding that there were aggravating circumstances connected with charge one sufficient to warrant cancellation of the appellant’s local practising certificate. Alternatively, the Tribunal failed to give adequate reasons as to how aggravating circumstances were found.
The second legal basis for questions of law A and B is that the Tribunal found aggravating circumstances in relation to charge one of the grounds that:
(a) the client of the opponent practitioner was a child;
(b) the dealing with the child amounted to a “coercion” of the child;
(c) the contents of the statutory declaration prepared by the respondent and signed by the child “conflicted with the instructions given to the child’s legal representative and the child protection workers”;
(d) the child did not understand “the contents“ of the statutory declaration when he signed it;
(e) the dealing with the child by the respondent was “designed” to achieve the interests of the child’s father which were “clearly against the interests of the child”;
(f) the course of action adopted by the respondent “indicates an abuse of the Court’s process”; and
(g) the investigation of the respondent’s conduct has its genesis in a “complaint made by the head of the Children’s Court”.
The third question of law in support of Grounds A and B is that each of the findings of aggravated circumstances were either made in the absence of any supporting evidence, or by taking into account irrelevant considerations or alternatively failing to account for irrelevant considerations.
The question of law and associated grounds of appeal, as phrased by the appellant, appear to be no more than an attack on the findings of the Tribunal.
In the oral and written submissions, the appellant put forward that the Tribunal took into account irrelevant considerations and ignored relevant considerations to find aggravating circumstances in relation to charge 1. Accordingly, the finding of aggravated circumstances is unsound and therefore the cancellation of the appellant’s practising certificate is not reasonable.[24]
[24]Appellant’s written submissions, [4].
The appellant submits that “Unless the Tribunal found aggravating circumstances in relation to charge 1, it would not have cancelled the practising certificate or alternatively cancellation could not be justified”.[25]
[25]Appellant’s written submissions, [5].
The starting point is that the statutory regime of Chapter 4 of the Legal Profession Act contains no requirement that there be a finding of “aggravation” in order for a disposition involving cancellation of a practising certificate. It was open to the Tribunal to make any orders set out in ss 4.4.16, 4.4.17, 4.4.18 and 4.4.19 of the Legal Profession Act2004, including “any other order the Tribunal thinks fit”.
Having found the appellant guilty of professional misconduct, it was open to the Tribunal to order the appellant’s practising certificate be cancelled for a specified time (s 4.4.17) and that he complete further ethics training.
Ground 2 of the proposed notice of appeal seeks to impugn the Tribunal’s findings on the basis that the member took irrelevant factors into consideration while disregarding relevant factors. In the Tribunal’s reasons, the member stated:
The respondent has said that when approached by members of the community to assist he cannot say no and in the broader context that might be seen as a laudable attitude but in the context of legal practice it must be the position of every lawyer to say no when that lawyer understands the course of action which is being requested is improper. The [appellant] has undertaken training over and above that which was required of him to obtain his admission to practice. He was admitted on the basis of his law degree from the University of Melbourne and the completion of Articles clerkship. However, subsequent to his admission, he undertook the Leo Cussen course and it is notorious that ethics training is part of that course. From the point of view of his own knowledge he must clearly have known that his course of action was improper. The aggravating factor of this relates to charge 1. This is a matter which involved a child. The circumstances under which Mr Tuferu communicated with that child were that the child had an application before the Children’s Court which involved the protection of that child. To have communicated with the child in his own office with other adult males present can only be seen as coercion of the child to pursue the course of action which was then pursued, that is, the making of a statutory declaration before the respondent stating that the child, did not wish to pursue the intervention order against his father.
Significantly this was revealed to not be the case and the intervention order was granted because the child wanted to pursue the intervention order and also significantly the investigation by the Legal Services Commissioner has, as its genesis, a complaint made by the head of the Children’s Court.
The course of action indicates an abuse of court’s process and that action was also clearly against the interests of the child. One can deduce that in this circumstance it was designed to be in the interests of the father who I am satisfied was represented, having regard to all the circumstances, by the [appellant].
Whilst the charges refer to communication in relation to charge 1 with the child and in relation to charge 2 with an officer of the DHS, the aggravating circumstances of charge 1 are most significant.
I am of the view that the aggravation is sufficiently serious to warrant the cancellation of the respondent’s practising certificate.[26]
[26]Legal Services Commissioner v Tuferu (Legal Practice) [2013] VCAT 1438, [14]-[17].
In order for leave to be granted under s 148(1) of the VCAT Act, the appellant must establish that the question of law and related grounds raise a question of law. Even then, however, leave may not be granted if the question of law is not attended with sufficient doubt.
On a plain reading of grounds 2 and 3, the appellant appears to seek to do no more than make an attack on the findings of fact.
An appeal on the ground that the decision was contrary to the evidence and the weight of the evidence, is not an appeal on a point of law as a general rule.[27] Gillard J, in Bulasa Pty Ltd v Baytown Properties Pty Ltd and Robert Bassett-Smith,[28] said:
However, where the issue is whether the decision was based on no evidence or is so contrary to the evidence before the court that it was perverse, a question of law arises. See Transport Accident Commission v Hoffman [1989] Vic RP 18; [1989] VR 197 at 200 and 207. The merit of the decision is not the subject of judicial review, but the making of a finding not supported by evidence amounts to an abuse of power and would cause injustice. Although some of the old cases support the conclusion that the common law review jurisdiction does not extend to a decision made without evidence, the better view is that an order made without evidence is an order made without jurisdiction. See Folkstone Corporation v Brockman. Hence, the modern view is that review is open where the issue is whether there was any evidence to support the decision, and it extends not only to the situation where there is no evidence but to where the evidence, carefully analysed, could not reasonably support the finding made. See Lee v Showman’s Guild of Great Britain. The test is whether any tribunal could reasonably have reached that conclusion on the evidence. See R v Roberts. Applying the same tests that one applies to a jury’s finding of fact, was the decision perverse?
The decision making process was a matter for the Tribunal. It was charged with the function of finding the facts. There is no appeal from any finding of fact. There is only an appeal on a question of whether there was any evidence to support the finding made that Mr Bassett‑Smith was practising as a real estate agent. Was the finding perverse? As evidence was given of Mr Bassett‑Smith’s work which the Member accepted, Bulasa assumes a very heavy burden to persuade this court that the Member’s finding is unsupportable.[29]
[27]Bulasa Pty Ltd v Baytown Properties Pty Ltd and Robert Bassett-Smith [2003] VSC 248, [40].
[28]Ibid.
[29]Ibid [41]-[42] (citations omitted).
I am not satisfied that question 2 or grounds 2 and 3 raise a question of law. Even if they were to raise a question of law, then I would not be satisfied that the decision is attended with sufficient doubt. The appellant seeks to impugn a discretion conferred on the Tribunal in determining what disposition should be made following a finding of professional misconduct. The Tribunal’s decision on disposition was made in the exercise of its discretion.
The Tribunal member took into consideration a number of matters in determining what he described as “aggravating” aspects of charge 1.[30] I will go through the “aggravating” factors referred to by the appellant in his submissions.
[30]Legal Services Commissioner v Tuferu (Legal Practice) [2013] VCAT 1438, [14].
(a) The matter involved a child
The first finding which the appellant seeks to impugn is that the person dealt with was a child. The appellant concedes that if the facts before the Tribunal were simply that it was a 14 year old child, the Tribunal would have been correct to find an aggravating circumstance. However, the appellant submits that in making a finding that the appellant was a child, the Tribunal failed to consider the relevance of the fact that at no time was the child without responsible adult support when the appellant dealt with him.
The evidence before the Tribunal was that the uncle was “his [the child] carer at the time.[31]
[31]Affidavit of Susan Vickers (sworn 7 November 2012) [5].
The Tribunal member notes that between the date of the first Court hearing and the later adjourned date, the appellant met the child in company with the child’s uncle and other male members of the community.[32]
[32]Legal Services Commissioner v Tuferu (Legal Practice) [2013] VCAT 1438, [4].
It was clearly open to the Tribunal member to make the finding of fact that the client of the opposing practitioner was a child.
(b)the dealing with the child by the [appellant] amounted to a “coercion of the child”
The appellant submits that the circumstances in which the child signed the statutory declaration do not amount to coercion. The appellant submits that his direct evidence was not considered either in the reasons or on the transcript.[33]
[33]Appellant’s written submissions, [21].
The first point to be made is that there was no direct evidence given by the appellant at the hearing before the Tribunal. As already noted, the appellant was invited by the Tribunal member to give his evidence under oath or affirmation and declined to do so.
The Tribunal member relies upon the fact that the appellant communicated with the child in his own office with other males present. The appellant submits that the Tribunal member did not take into consideration the evidence of Mr Daniel Dondo in his affidavit sworn 4 February 2013 where he states:
I have spoken with the child LH about the circumstances of him attending the office of his father’s lawyer and how he came to be there. He was either unable or unwilling to give me a clear explanation. LH is a young person who has had a very difficult background who finds court processes very distressing and I do not believe it is in his interests to press him for further information.
The appellant submits that when the child was asked about his experience at the appellant’s office, it does not disclose that he was coerced. The appellant then points to the evidence of Ms Kathleen Corridon, the child’s lawyer, where she states:
When I interviewed my client at court on 7th July, 2011 I asked him about the statutory declaration and why he signed it. He instructed me that his uncle, with whom he was residing, told him to go to the lawyer’s office and to sign a document. He further instructed that the lawyer was a family friend and he did not understand the nature of the document that he signed.
The appellant submits that the most that can be said is that the child’s uncle “told him to go to the lawyer’s office and to sign a document” and that there is no basis for the Tribunal to conclude that being “told” equates to being coerced. The appellant submits that in making the finding that the child was coerced by the appellant, the Tribunal ignored the relevant evidence before it.
At the end of the day, I consider that there was evidence before the Tribunal member to have made a finding that the child was coerced to sign the statutory declaration. The uncontested evidence is that the child was told to go to the lawyer’s office and to sign a document. He did so in the company of adult males, including his uncle, at the appellant’s office.
(c)the contents of the statutory declaration prepared by the respondent and signed by the child “conflicted with the instructions given to the child’s legal representative and the child protection workers”
The appellant submits that the Tribunal’s finding that the contents of the statutory declaration prepared by the appellant and signed by the child “conflicted with the instructions given to the child’s legal representative and the child protection workers”. The appellant submits that if the use of the word “given” in the finding refers to past tense, the finding is contrary to the evidence before the Tribunal. If the use of the word “given” is a reference to the future, it is not a relevant consideration at the time the appellant dealt with the child.
The uncontested evidence before the Tribunal members was that: the child stated to Ms Vickers that he wanted an intervention order that his father not be allowed to hit him and that at court, because he was informed and believed that the child gave instructions to his own lawyer, Ms Kathleen Corridon, that he wanted to proceed with the intervention order. Ms Vickers made the assessment that the intervention order was in the best interests of the child and gave those instructions to the DHS’s barrister, Mr Ingram.[34]
[34]Affidavit of Susan Vickers (sworn 7 November 2012), [14].
Further evidence before the Court includes a letter from Jonathon Hirst, barrister for the child, dated 25 May 2011, which was an exhibit to the affidavit of Ms Kathleen Corridon. At paragraph five of the letter, Mr Hirst states:
I rang [the child] at […] who instructed me that (a) he did want to proceed with the intervention order, (b) he did not want to return to reside with his father, (c) he remained fearful that his father would hurt him again, (d) he had not had access with his father since the making of the intervention order.
On this basis, DHS changed its position in relation to withdrawing its application and the matter was adjourned for a further contest.
On the basis of this evidence alone, it was open to the Tribunal member to make a finding that the contents of the statutory declaration prepared by the appellant and signed by the child conflicted with the instructions given to the child’s legal representative and the child’s protection worker. It cannot be said that the finding was not open to the Tribunal on the evidence before it.
(d)the child did not understand the “contents” of the statutory declaration when he signed it
In its reasons for the decision the Tribunal states:
The first the legal representatives for the child knew about the statutory declaration was on the day before the adjourned hearing when a fax was received from an unknown source. That fax was the statutory declaration without any header sheet. Subsequently the child confirmed that he did not understand the contents of the statutory declaration, when he signed it, that the statutory declaration did not reflect his wishes and that he wished to proceed.[35]
[35]Legal Services Commissioner v Tuferu (Legal Practice) [2013] VCAT 1438, [6].
The appellant submits that there is no direct evidence before the Tribunal that the child did not understand the contents of the document, The evidence before the Tribunal given by Ms Corridon was that on 7 July 2011 the child told her that “He did not understand the nature of the document that he signed”. The appellant submits that it is questionable whether the Tribunal could infer that a lack of understanding about the nature of a document amounted to a lack of understanding about the content of a document.
The only evidence before the Tribunal was from Ms Corridon, who stated that the child did not know the nature of the document. If the appellant wanted the Tribunal to consider evidence that he did ask the child what the child wanted, he should have put that evidence before the Tribunal.
In the circumstances, I consider that it was open to the Tribunal member to make the finding that the child did not understand the content of the statutory declaration when he signed it.
(e)the dealing with the child by the respondent was “designed” to achieve the interests of the child which were “clearly against the interests of the child”
The appellant submits that once the child gave instructions that he wished to proceed with the application for an intervention order against his father, it is conceded that a withdrawal of the application was not consistent with the interests of the child. However, the appellant submits that during the time the child gave instructions that he wanted to reconcile with his father, the statutory declaration that he wished to withdraw the intervention order proceedings was consistent with the child’s interests.
The appellant submits that when he attended the Children’s Court on 25 May 2011, he was correct to assume that reconciliation with the father was in the best interests of the child. The appellant relies on the evidence of Mr Hirst that on 25 May 2011:
DHS were not wishing to proceed with the contest as they were working towards reunification with the father.
The appellant also relies on the affidavit of Ms Vickers, who deposed that that it was not until 7 July 2011 that she made the final assessment that the intervention order was in the best interests of the child.[36]
[36]Affidavit of Susan Vickers (sworn 7 November 2012), [14].
The appellant submits that he gave direct evidence as to his intention and desire to meet with the child and preparing the statutory declaration. The evidence referred to is a letter attached to the VCAT application dated 28 November 2011 in which he says that he believed that “the community had intervened in their matter and had resolved their differences”.
The first point is to deal with the submission that the appellant gave direct evidence. As already noted, the appellant did not give any direct evidence before the Tribunal member. The Tribunal member would have had the VCAT application and all of the annexures attached to the application, including the letter from the appellant dated 28 November 2011. However, the letter was never tendered into evidence and the appellant was never cross-examined on the contents of the letter, despite being given the opportunity by the Tribunal member to give evidence in relation to any potential conflicting facts.
In relation to the evidence given by Mr Hirst, if one goes to paragraph five of the same letter which was tendered into evidence, Mr Hirst says that he rang the child, who instructed him that he did not want to proceed with the intervention order and did not want to return to reside with his father. Further, at paragraph one, Mr Hirst says:
[The child] did not attend court. I was told by Mr Ingram that [the child] had indicated he did not want to come to court as he found it too stressful and that he did not want the intervention order to proceed.
I consider that it was open to the Tribunal to make a finding that the appellant’s actions were not in accordance with the interests of the child.
(f)the course of action adopted by the respondent “indicates an abuse of the court’s processes”
In summary, the appellant submits that the finding that the course of action “indicates an abuse of the court’s processes” was not open to the Tribunal on the evidence before it.
Before turning to whether it was open to the Tribunal on the evidence before it, I note that it is not clear that the Tribunal considered this fact to be an aggravating factor. The appellant submits that the conduct, namely, the obtaining of the statutory declaration and witnessing the document, were processes which occurred outside of the courtroom and did not involve court documents or court processes.
The starting point is that there was a finding of fact by the Tribunal that the appellant was acting against the interests of the child.[37] The best interests of the child are protected under a statutory regime in the Children’s Court proceeding of this nature by the very appointment of a separate trial representative. In the context of a contested intervention order proceeding, the finding that the child was encouraged to sign a document purporting to express an intention to withdraw those proceedings is plainly against the child’s interests in circumstances where the child is separately represented. This conduct was undoubtedly in the context of legal proceedings and can amount to an abuse of process. Accordingly, I consider that the finding was reasonably open to the Tribunal on the evidence before it.
(g)the investigation of the respondent’s conduct has its genesis in a complaint made by the head of the Children’s Court
[37]Legal Services Commissioner v Tuferu (Legal Practice) [2013] VCAT 1438, [15].
The appellant submits that the Tribunal’s finding that the complaint was made by the head of the Children’s Court is irrelevant to the process of assessing the gravity of charge one. In its reasons, the Tribunal states:
Significantly this was revealed to be not the case and the intervention order was granted because the child wanted to pursue the intervention and also significantly the investigation by the Legal Services Commissioner has, as its genesis, a complaint made by the head of the Children’s Court.[38]
[38]Ibid [14].
Reading this paragraph in its entirety, there is nothing to suggest that the fact of the investigation originating in a complaint from the head of the Children’s Court was an aggravating circumstance. It is stated as a fact and a reasonable finding on the evidence. The fact is undisputed and nowhere in the reasons is it stated to be aggravating.
Conclusion – Aggravating factors
In summary, I consider that questions of law A and B relied upon by the appellant, and the supporting grounds of law, do not, in fact, raise a question of law. The written reasons for the Tribunal’s decision set out the relevant findings[39], which are supported by uncontested evidence and admissions by the appellant. The Tribunal took into consideration additional matters in determining the appropriate disposition. The Tribunal member referred to the child being legally represented and that the appellant knew this.[40] There was no suggestion that the appellant was unaware that the child was separately represented. Further, there were no reasonable grounds for the appellant to believe that the circumstances were so urgent as to require the practitioner to communicate with the child. In addition, there was no reasonable grounds for the appellant to believe that the dealing was not unfair to the opponent’s client.[41]
[39]Ibid [14]-[15]
[40]Ibid [9].
[41]Ibid.
The Tribunal found that the appellant’s actions were in the interests of his own client.[42] The Tribunal also noted that the appellant acknowledges that his actions constituted a conflict of interest and that, as a member of the legal profession, the appellant’s primary duty is to the court.[43]
[42]Ibid [10].
[43]Ibid [13].
Finally, the Tribunal found that the appellant had already undertaken training over and above that which was required of him to have attained admission to practice, including ethics training from which the appellant “must clearly have known his course of action was improper”.[44]
[44]Ibid [14].
It is beyond question that the Tribunal had evidence before it making it open to the Tribunal to make the findings of fact it did and, importantly, considering those facts in determining the appropriate disposition.
Question C: Was the cancellation of the respondent’s practising certificate manifestly excessive and/or, unnecessarily punitive? Related grounds (4), (5) and (6)
The appellant’s related grounds of appeal 4, 5 and 6 are as follows:
(4)The Tribunal erred in making a disciplinary order that was manifestly excessive in cancelling the practising certificate and punitive in effect beyond the purposes set out in s 4.1.4 of the Legal Profession Act2004. Alternatively, the Tribunal failed to give adequate reasons as to why only a cancellation of the practising certificate could achieve the objectives of s 4.1.4 of the Legal Profession Act2004.
(5)The Tribunal only considered that the cancellation of the respondent’s practising certificate was warranted because in relation to charge 1 “the aggravation is sufficiently serious”. If as submitted, on review the Tribunal could not reasonably have “sufficient” aggravating circumstances it follows that the sanction of the cancellation of the practising certificate was excessive.
(6)Even if the Tribunal’s findings of aggravated circumstances were upheld, the Tribunal nevertheless failed to take into account relevant mitigating factors and imposed an excessive sentence in that:
(a)it treated the financial effect of the cancellation of the respondent’s practising certificate as irrelevant to the sanction in process;
(b)it failed to consider that a penalty that allowed the respondent to continue to practice would nevertheless adequately meet the objectives of denunciation, deterrence and community protection;
(c)it failed to take into account the appellant’s conduct during the VCAT proceedings in that the appellant:
(i)plead guilty to the charges evidencing remorse;
(ii)the plea of guilt saved the Tribunal and the respondent the expense of a contested hearing;
(iii)did not require any witnesses for the purposes of cross-examination; and
(iv)accepted a notice to admit.
The appellant submits that the penalty of cancellation is open to review because the Tribunal failed to take into account all relevant matters in much the same way that a sentencing judge is required to take into account all relevant matters when synthesising a sentence.
In summary, the appellant submits that the Tribunal is expected to:
(a) impose the least punitive sanction on a legal practitioner that is capable of achieving the necessary degree of community protection;[45]
[45]Burgess v McGarvie [2013] VSCA 142, [67].
(b) where alternative penalties are available, the Tribunal must explain why it chooses one course over another and reveal the path of reasoning which led to that conclusion;[46]
[46]Quinn v Law Institute of Victoria Ltd (2007) 27 VAR 1, [46].
(c) the Tribunal erred in that it failed to consider the penalty of suspension of the certificate that the LSC submitted was open as an alternative to cancellation;[47]
[47]Transcript of proceedings, p 23, line 4.
(d) the Tribunal did not provide any reasoning for preferring cancellation over suspension in its reasons;
(e) the Tribunal failed to explain why it considered that nothing short of cancellation would provide the level of community protection, deterrence and denunciation that it called for;
(f) all that the Tribunal’s reasons note is that it was “not of the view that a fine would be appropriate”; and
(g) the Tribunal was obliged to give reasons why cancellation was the only adequate penalty, not why a fine was an inadequate penalty.
Given the above, the appellant submitted that the Tribunal failed to give adequate reasons on this point, therefore vitiating its decision on penalty.
The appellant, relying on the principles set out in Quinn v Law Institute of Victoria Ltd,[48] submitted that the Tribunal is obliged, in its reasons, to make apparent what matters it took into account for the purpose of sentencing. The Tribunal is in error if it fails to explain in its reasons, however briefly, what relevance a mitigating factor had in the sentencing disposition. Further, the Tribunal erred in that it failed entirely to take into account relevant and mitigating factors that were in evidence and which called for a reduction in the penalty. Finally, the appellant submitted that the Tribunal failed to treat the financial effect of a penalty as relevant to the sanctioning process and, as such, the penalty is tainted by error.
[48](2007) 27 VAR 1,, [41] - [42].
The parties agree that the Tribunal’s discretion in relation to sanctions is very broad. Further, it was agreed between the parties that the stated purposes of Chapter 4 of the Legal Profession Act 2004 include (at s 4.1.1) providing a scheme for the discipline of the legal profession in the interests of the administration of justice and for the protection of consumers of legal services and the public generally, as well as to promote and enforce professional standards, competency and honesty of the legal profession.
In Guss v Law Institute of Victoria Ltd,[49] it was held that to be “manifestly excessive”, a penalty must be “obviously outside the range of penalties reasonably open to the Tribunal, so as to demonstrate that the penalty discretion had not been properly exercised”.[50]
[49][2006] VSCA 88.
[50]Ibid [28] (per Maxwell P, Callaway and Chernov JJA agreeing).
Cancellation or suspension of a practising certificate is expressly permitted by the Legal Profession Act 2004.
The respondent submits that there is no obligation on the Tribunal to impose the least restrictive sanction. In Quinn v Law Institute of Victoria Ltd,[51] the Court noted that the Tribunal’s disciplinary function is primarily protective. Maxwell P stated that:
Thus, where there is a choice of sanctions, it is to be expected that the Tribunal will choose that sanction which maximises protection of the public.[52]
[51](2007) 27 VAR 1, [28]-[31].
[52]Ibid [28] (Maxwell P, Callaway and Chernov JJA agreeing).
In the same case, Chernov JA explained:
Although the Tribunal’s discretion on this issue is very wide, it must be exercised judicially which means that it was required to act in accordance with relevant principles and take into account all relevant matters and not those that are irrelevant. It is also the case that the Tribunal was obliged to explain in its decision the path of reasoning that it adopted in order to come to the impugned decision so that the parties and the appellate court could discern if the Tribunal relevantly erred. This requirement includes the obligation to make apparent what matters it took into account for the purpose of sentencing the appellant.
… It was therefore incumbent on the Tribunal to explain in its reasons, however briefly, what relevance that mitigating factor had in the sentencing disposition. I consider that its failure to do so means that its reasons in this respect are inadequate. Consequently, its decision on penalty is vitiated and must be set aside.[53]
[53]Ibid [41] (Chernov JA).
In his decision, the Tribunal member stated:
I am of the view that the aggravation is sufficiently serious to warrant the cancellation of the respondent’s practising certificate. The purposes of the Tribunal’s disposition in matters such as this are protection of the public and to impose individual and general deterrence. There is also a need to protect the reputation of the legal profession. I am not of the view that a fine would be appropriate. I impose as an aggregate disposition that the respondent’s practising certificate is cancelled, that he may not re-apply for a local practising certificate before 1 August 2013 and until he has completed a course in legal ethics as approved by the Legal Services Board. The applicant has submitted that the respondent should pay the applicant’s legal costs of $8,132.32 and I have received no argument from the respondent in relation to the liability or the quantum of costs. Accordingly, the respondent is to pay the applicant’s costs fixed by the Tribunal in the sum of $8,132.32.[54]
[54]Legal Services Commissioner v Tuferu (Legal Practice) [2013] VCAT 1438, [17].
Earlier in his decision, the Tribunal member said:
The sad part about these proceedings is that I accept that the respondent is a respected member of this community and that as an educated professional member of this community he is looked up to and is a person to whom members of the community go for advice and assistance. As such he clearly provides a valuable service to that community. I have no difficulty in accepting that.[55]
[55]Ibid [13].
The Tribunal member invited the appellant to make submissions in relation to the appropriate disposition. The transcript reveals that the appellant put before the Tribunal his financial situation and that cancellation of his practising certificate would place “a big impact on me. To have an undertaking to fulfil the requirements and would be very ….”. The appellant also put before the Tribunal that he was married with four children, one aged 21 and one aged 18, and that he was responsible for their education and that he had two younger children.[56] The appellant informed the Tribunal that he had sold his mortgaged house and was now renting due to financial circumstances, and that he was responsible for taking care of his family. The appellant’s wife did not work.
[56]Transcript of proceedings, p 27, line 11
When asked what he considered to be an appropriate disposition of the Tribunal, the appellant replied that it should be an undertaking to commit to the requirements of the CPD course or take some courses towards renewing his practising certificate.[57]
[57]Transcript of proceedings, p 28, lines 41-43.
The Tribunal asked the appellant whether he had given any thought to the costs which had been the subject of an application. In response, the appellant said that he would not dispute the costs order, but that he would try to raise the money from the community.[58]
[58]Transcript of proceedings,, p 29, lines 1-2.
The penalty imposed on the appellant was open to the Tribunal. The Tribunal took into account the fact that the sanction it chose would maximise the protection of the public. The Tribunal did hear evidence about the appellant’s financial circumstances and the impact of cancellation on his ability to earn and provide for his family.
Did the Tribunal err in law by failing to provide sufficient reasons for its decision?
The appellant submits that, according to the principles set out in Quinn v Law Institute of Victoria Ltd,[59] the Tribunal is obliged in its reasons to make apparent what matters it took into account for the purpose of sentencing. The Tribunal is in error if it fails to explain in its reasons, however briefly, what relevance “[a] mitigating factor had in the sentencing disposition”. The appellant submits that the Tribunal was in error when it failed to take into account relevant mitigating factors that were in evidence and which call for a reduction in the imposable penalty. These included not only the appellant’s early plea of guilty, but his wholehearted cooperation with the LSC, including the acceptance of the notice to admit served on him by the LSC in circumstances where the rules did not require him to submit to such procedures.[60]
[59](2007) 27 VAR 1, [41] - [42].
[60]Appellant’s written submissions, [41].
The appellant also submits that the evidence he gave that a cancellation of his practising certificate would have serious financial impact to himself and his family is not reflected in the reasons given by the Tribunal. Relying on Burgessv McGarvie[61], the appellant submits that the Tribunal is required to treat the financial effect of a penalty as relevant to the sanctioning process. The appellant submits that the Tribunal failed to do so in its reasons and, as such, its decision on penalty is tainted by error.
[61][2013] VSCA 142, [67].
The Tribunal considered the appellant’s role as a member of the legal profession and associated duties in the context of the promotion of the proper administration of justice.[62] In addition, the Tribunal noted matters such as the protection of the public; general and specific deterrence; and protection of the reputation of the legal profession.[63] The Tribunal also considered the inadequacy of the proposed disposition by the appellant, that he undergo further training.[64] The Tribunal noted that the respondent had undertaken training over and above that which was required of him to obtain his admission to practice, including training in ethics.[65] The Tribunal noted that a fine would not be appropriate.[66] In the course of submissions, the appellant noted that he would be able to pay for the costs on the basis that he would raise money from the community. The learned member asks the appellant:
Have you given any thought to the costs which have been the subject of an application?
MR TUFERU: Your Honour I wouldn’t dispute it. I’ve seen it. But I will try to raise money from the community.[67]
[62]Legal Services Commissioner v Tuferu (Legal Practice) [2013] VCAT 1438, [13].
[63]Ibid [17].
[64]Ibid [14].
[65]Ibid.
[66]Ibid [17].
[67]Transcript of Proceedings p 28, line 45.
The reasons set out by the Tribunal clearly show the factors which the Tribunal took into account in relation to charge 1, and which it considered were aggravating aspects relating to that charge.[68] It was these factors, along with the other matters referred to in the reasons[69] and summarised above, which form the basis of the Tribunal determining to cancel the appellant’s practising certificate and the condition for further training.
[68]Legal Services Commissioner v Tuferu (Legal Practice) [2013] VCAT 1438, [14].
[69]Ibid [14], [17].
It is true that the Tribunal does not provide reasons as to why it specifically considered cancellation to be appropriate over and above suspension. However, this was an alternative put to the Tribunal by the LSC, not the appellant. The Tribunal did address the alternatives in disposition proposed by the appellant at the hearing.
The suggestion that the appellant’s guilty plea was evidence of remorse and a factor not taken into account by the Tribunal is somewhat misconceived. At the hearing, counsel appearing for the LSC stated to the Tribunal member:
The matter is to proceed – I can’t say by way of plea, but the – Mr Tuferu has confirmed that the facts as set out in the notice [of admit] are not disputed, and he has helpfully confirmed that he does not require any of the witnesses for cross-examination.
MR BUTCHER: All right. Is that the case, sir?
MR TUFERU: Yes, sir.
MR BUTCHER: All right. So facts as alleged not in dispute. No witnesses required.
MS CHERRY: What does remain in dispute sir is the implications, if any, of those facts and whether a finding ought properly be made and, if indeed a finding is made, of course, disposition.[70]
[70]Transcript of proceedings, p 4, lines 39-45; p 5, lines 1-6.
The fact that limited reasons for decision are given by a Tribunal should not lead to the conclusion that the Tribunal failed to give consideration to relevant matters which it was obliged to address, or to arguments of counsel, or to evidence.[71] As Eames J noted in Eiken v Housing Guarantee Fund[72]:
It may well be that the reasons for decision of a specialist tribunal, especially a busy one, should not be required to provide the same comprehensiveness of analysis as might be required of superior courts and, as Fullagar J held in Michaelis Bailey (Vic) Pty Ltd v MMBW, the decisions of such a tribunal should “not be set aside by over legalistic analyses of reasons stated or by over-zealous drawing of inferences from things not stated”.[73]
[71]Eiken v Housing Guarantee Fund and Beca [2001] VSC 23, [42].
[72]Ibid.
[73]Ibid [42] (citations omitted).
Having said that, Eames J noted that reasons must contain a sufficient degree of particularity and the reasoning must adequately deal with those matters on which issue has been joined at trial. I accept that the Tribunal does not specifically refer to the appellant’s financial situation and the impact of the sanction in this regard.
While the reasons are not lengthy, I do not consider that the reasons portray error in law. The Tribunal did, in its reasons, set out the salient matters that were considered in relation to the penalty imposed on the appellant.
Conclusion
On an application for leave to appeal, it is not necessary, as I have stated, for the appellant to persuade me that the Tribunal has fallen into error. It is sufficient to persuade me that it is arguable that such an error of principle occurred and that the may have affected the outcome of the case. Even if the grounds of appeal sought to be raised by the appellant identify three questions of law as reflected by the questions, I am not persuaded that the decision by the Tribunal is attended by sufficient doubt with respect to the issues raised by those questions of law so as to justify the grant of leave to appeal.
Nor do I consider that if the suggested errors of law were corrected as a result of a successful appeal, and the evidence was then reconsidered with proper application of legal principle, that the appellant’s claim would have a different outcome. In other words, it was open to the Tribunal to conclude that on a proper view of the evidence, the Tribunal had sufficient evidence before it to reach the conclusion that it did in relation to disposition, and that it was not manifestly excessive or unnecessarily punitive to cancel the respondent’s practising certificate. I conclude, therefore, that the decision of the Tribunal is not tainted by sufficient doubt to justify a grant of leave to appeal.
The appellant submits that the personal importance of the questions of law need little explanation. While I accept this proposition, I do not consider that the case raises a question of public importance but, rather, it concerns the evaluation of facts in an individual case. Accepting that the issues are of personal importance to the appellant, the decision has not been shown to have been attended by sufficient doubts as to justify the grant of leave, and as noted, nor would the correction of any suggested errors of law produce a different outcome in the case.
Accordingly, I dismiss the appellant’s application for leave to appeal. I will hear the parties as to costs.
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