Tuferu v Legal Services Commissioner - [2013] VSC 645

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2013] VSC 645
Decision Date: 25 November 2013

CaseChat Overview and Summary

In the matter of Tuferu v Legal Services Commissioner, the appellant, Mr Tuferu, sought leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (VCAT) which dismissed his application for review of a penalty imposed by the Legal Services Commissioner. Mr Tuferu, a legal practitioner, was found to have contravened the Legal Profession Act 2004 and the Professional Conduct and Practice Rules (As Amended) 2005, specifically rule 18.4, and as a consequence, the Commissioner imposed a penalty. The nature of the dispute pertains to the extent of the penalty imposed and whether the Tribunal erred in its consideration of relevant and irrelevant factors, as well as the sufficiency of the reasons provided.

The central legal issues before the court were whether the Tribunal had taken into account irrelevant considerations, ignored relevant considerations, and whether it had erred in failing to provide sufficient reasons for its decision. Furthermore, Mr Tuferu argued that the penalty imposed was manifestly excessive. The court had to assess the validity of these contentions and determine whether the Tribunal's decision was sound in law and just in the circumstances.

The court examined the reasoning of the Tribunal and found that it had not taken into account any irrelevant considerations nor failed to consider relevant ones. It was held that the Tribunal had provided adequate reasons for its decision, and the penalty imposed was not manifestly excessive. The court was satisfied that the Tribunal had exercised its discretion appropriately and that the appeal did not disclose a prima facie case of error warranting leave to appeal. Consequently, the appeal was dismissed, and the original penalty remained in place.

Orders