Victorian Legal Services Commissioner v Tan
[2021] VSC 692
•26 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2020 02372
| VICTORIAN LEGAL SERVICES COMMISSIONER | Plaintiff |
| v | |
| KE YUAN TAN | Defendant |
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JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 September 2021 |
DATE OF JUDGMENT: | 26 October 2021 |
CASE MAY BE CITED AS: | Victorian Legal Services Commissioner v Tan |
MEDIUM NEUTRAL CITATION: | [2021] VSC 692 |
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LEGAL PRACTITIONERS — Removal of name from roll of practitioners — Whether Defendant fit and proper person to practice law — Name removed — Section 23(1)(c) Legal Profession Uniform Law Application Act 2014.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Imrie | Victorian Legal Services Commissioner |
| For the Defendant | In person |
HIS HONOUR:
Ke Yuan Tan was admitted to legal practice on 13 August 2014. He held a practising certificate which permitted him to work as an employee of a law practice from 2 October 2014 until 19 January 2017. Over that time he worked at the law practice of Wayne Wong & Associates.
On 25 May 2018, the Victorian Legal Services Commissioner (the Commissioner) brought a disciplinary proceeding against Mr Tan in the Victorian Civil and Administrative Tribunal (VCAT). On 11 October 2018, VCAT made various orders including referring Mr Tan to the Court with the recommendation that his name be struck off the roll of persons admitted to the legal profession kept by the Court.[1] The Commissioner filed an originating motion seeking that relief on 28 May 2020.
[1]Victorian Legal Services Commissioner v Tan (Legal Practice) [2018] VCAT 1585 (the VCAT decision).
On 1 September 2021, I made an order pursuant to s 23(1)(c) of the Legal Profession Uniform Law Application Act 2014 removing Mr Tan from the roll. Mr Tan consented to the Court making such an order and did not otherwise make any submissions. These are my reasons for judgment for making that order.
Applicable principles
The principles which govern an application for the removal of a legal practitioner’s name from the roll of practitioners were succinctly summarised by Warren CJ in Legal Services Board v McGrath as follows:[2]
An exercise of the court’s discretion to remove a practitioner from the roll is made by reference to a number of longstanding principles.[3] … Such a decision will only be made when the court is satisfied at the time of the hearing[4] that the practitioner in question is shown “not to be a fit and proper person to be a legal practitioner”[5] or is shown not to be a “fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor”[6] and will likely remain so for the indefinite future.[7] The person or entity bringing such an application bears the onus of satisfying the court of the requisite degree of indefinite unfitness on the balance of probabilities.[8] ... While the onus of proof is a civil one, the court approaches the making of such decisions with caution[9] and “meticulous care”,[10] and with a great appreciation for “the possibly disastrous consequences of disbarment to the individual concerned”.[11]
[2](2010) 29 VR 325, [9] (McGrath).
[3]Ex parte Brounsall(1778) 2 Cowp 829, 98 ER 1385.
[4]A Solicitor v Council of the Law Society (NSW)(2004) 216 CLR 253, 268 [21].
[5]Ibid 265 [15].
[6]Re Weare[1893] 2 QB 439, 448. See also Southern Law Society v Westbrook(1910) 10 CLR 609, 612.
[7]Stanoevski v Council of the Law Society of New South Wales[2008] NSWCA 93, [54].
[8]Prothonotary of the Supreme Court of New South Wales v Sukkar[2007] NSWCA 341, [9]–[16].
[9]Legal Services Board v Bourozikas[2009] VSC 382, [15]. See also Ziems v Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279, 288 (Ziems) and A Solicitor v Council of the Law Society (NSW)(2004) 216 CLR 253, 268, [21].
[10]Ziems (n 9) 288.
[11]Ibid 287.
After noting that the Court’s disciplinary power ‘is entirely protective’,[12] Warren CJ emphasised that ‘the fundamental issue is whether the practitioner in question is fit and proper, or not’.[13] In Hughes and Vale Pty Ltd v New South Wales (No 2),[14] the High Court described the inquiry as to whether or not a practitioner is fit and proper in wide terms:
The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it” — Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.[15]
[12]McGrath (n 2) [10].
[13]Ibid [11].
[14](1955) 93 CLR 127.
[15]Ibid 156-7.
In Legal Services Commissioner v PFM,[16] Elliott J distilled the relevant principles as to fitness and propriety as follows:[17]
[16][2014] VSC 341.
[17]Ibid [30], omitting citations.
(1)The term “fit and proper person” is used to give “the widest scope for judgment and indeed for rejection”.
(2)“Fit” with respect to an office involves 3 things: honesty, knowledge and ability.
(3)To be a fit and proper lawyer, a person must have qualities of character necessary to discharge the grave responsibilities of a legal practitioner.
(4)A legal practitioner assumes duties to the courts, fellow practitioners and clients; at the heart of those duties is a commitment to honesty and, when required, open candour and frankness irrespective of self-interest or embarrassment.
(5)The entire administration of justice in a community governed by the rule of law depends on honest working legal practitioners who can be relied upon to meet high standards of honesty and ethical behaviour.
(6)Any attempt by a lawyer to mislead her or his professional body must be considered an extremely serious breach of duty.
(7)Lack of insight into wrongdoing committed by a legal practitioner is a serious matter to take into account in determining the appropriateness and nature of any sanction.
(8)If a practitioner has been prevented from applying for a practising certificate for a significant period of time because of wrongful conduct, that fact alone might justify the practitioner’s name being removed from the roll of practitioners.
(9)If it is brought to the court’s attention that a legal practitioner may not be a fit and proper person to practice, the court has a positive duty to reconsider the suitability of that practitioner’s name appearing on the roll of practitioners.
One of the authorities cited by Elliott J in relation to the fourth of the above principles was Frugtniet v Board of Examiners[18] in which Pagone J stated:
The requirement for admission to practice law that the applicant be a fit and proper person, means that the applicant must have the personal qualities of character which are necessary to discharge the important and grave responsibilities of being a barrister and solicitor. A legal practitioner, upon being admitted to practice, assumes duties to the courts, to fellow practitioners as well as to clients. At the heart of all of those duties is a commitment to honesty and, in those circumstances when it is required, to open candour and frankness, irrespective of self-interest or embarrassment. The entire administration of justice in any community which is governed by law depends upon the honest working of legal practitioners who can be relied upon to meet high standards of honesty and ethical behaviour. It is the legal practitioner who is effectively the daily minister and executor in the administration of justice when advising clients, acting for clients, certifying documents, and making presentations to courts, governments, other professionals, and so on. The level and extent of trust placed in what legal practitioners say or do is necessarily high and the need for honesty is self-evident and essential.[19]
[18][2002] VSC 140.
[19]Ibid [10] (emphasis added). This paragraph was referred to with approval by Gillard J in Frugtniet v Board of Examiners [2005] VSC 332, [29].
Mr Tan’s misconduct
My decision to order the removal of Mr Tan from the roll follows from my consideration of three episodes of dishonest conduct engaged in by him between August 2015 and May 2017.
Episode 1 – the Chinese restaurant transfer
In April 2015, Wayne Wong & Associates commenced acting for a husband and wife in relation to the purchase by them of a Chinese restaurant business. The transaction involved the transfer of a liquor licence. Mr Tan was the legal practitioner with responsibility within Wayne Wong & Associates for working on the transaction.
On 14 July 2015, Mr Tan emailed the solicitors for the vendor a liquor licence transfer form with the purchaser’s information inserted. The next day Mr Tan received the completed liquor licence transfer form back from the vendor’s solicitor.
Over the following two weeks, the vendor’s solicitors wrote to Wayne Wong & Associates notifying them that the solicitors for the landlord required confirmation that the liquor licence transfer form had been approved.
On 5 August 2015, Mr Tan emailed the vendor’s solicitor and falsely stated that the completed liquor licence transfer form had been submitted and that he was awaiting acknowledgment of receipt from the Victorian Commission for Gambling and Liquor Regulation (the VCGLR). Mr Tan did not in fact submit the liquor licence transfer form until after settlement of the contract for the purchase of the restaurant on 14 August 2015; the completed liquor licence transfer form was received by the VCGLR on 19 August 2015.
On 10 August 2015, Mr Tan emailed the vendor’s solicitor attaching a PDF of an email dated 6 August 2015 (the 6 August email) which he stated he had received from the VCGLR. Mr Tan also provided a copy of the 6 August email to the landlord, stating that it had been received from the VCGLR. The 6 August email stated that the transfer of the liquor licence relevant to the Chinese restaurant transfer was ‘conditionally approved’ and contained various other representations of purported conditional approval.
In fact, Mr Tan had himself created the 6 August email. He later admitted to doing so with the intention of misleading the vendor’s solicitor and the landlord’s solicitor into relying on its contents.
The Commissioner received a complaint from the VCGLR regarding the 6 August email on 23 September 2015 and subsequently commenced an investigation.
On 30 November 2015, Mr Tan admitted the conduct referred to above and stated that he had created the 6 August email ‘in order to secure settlement’ and to cover his mistake in not submitting the liquor licence transfer form as soon as reasonably practicable.[20]
[20]The Commissioner then held the VCGLR’s complaint in abeyance pending investigation or prosecution by Victoria Police.
In the disciplinary proceeding at VCAT, Mr Tan pleaded guilty to four charges of professional misconduct by acting dishonestly. Those charges related to Mr Tan sending the email referred to in [12] above and in creating and distributing the 6 August email.[21]
[21]The specific charges to which Mr Tan pleaded guilty are set out in the findings recorded in the VCAT decision.
Episode 2 – the ‘Wine Window’ transfer
On or about 16 October 2015, Wayne Wong & Associates commenced acting for a company in relation to the purchase of a business known as ‘Wine Window’. The proposed purchase involved the transfer of a liquor licence. Mr Tan was the legal practitioner with carriage of the file in relation to the purchase.
On 5 May 2016, Mr Tan posted a completed liquor licence transfer form to the VCGLR to effect the transfer of a liquor licence for Wine Window. This was the day after settlement of the sale of the business.
Some three weeks later, the VCGLR wrote to Wayne Wong & Associates stating that the liquor licence transfer form which had been provided could not be accepted because it did not contain all required information.
In May and June 2016, Mr Tan received telephone calls from Hongtao Jia, the director of the client of Wayne Wong & Associates involved in the Wine Window purchase, seeking updates about the transfer of the liquor licence. Mr Tan told Mr Jia that ‘there is no problem’ and that he was ‘not sure why it was taking so long’ and that he would follow up with the VCGLR.
Despite these statements, Mr Tan did not contact the VCGLR after sending the liquor licence transfer form on 5 May 2016. Mr Tan knew that the VCGLR had returned the liquor licence transfer form, that the transfer was not being processed and that he had not contacted the VCGLR and was not intending to do so.
Sometime in the period between mid-July and 29 July 2016, Mr Tan created a document purporting to be a liquor licence in the name of the purchaser of the Wine Window business. Mr Tan provided a copy of this false liquor licence to his client on 29 July 2016. He did so knowing that the VCGLR had not issued a valid liquor licence and that the document he created and provided was fraudulent.
Mr Tan then caused Mr Jia to sign a copy of the false liquor licence and placed that document on Wayne Wong & Associates’ file, together with unrelated correspondence from the VCGLR.
On 27 October 2016, Mr Jia telephoned Mr Tan and told him that investigators from the VCGLR had stated that the liquor licence was false. Mr Tan assured Mr Jia that this was a mistake and that he would attempt to clarify the issue with the VCGLR.
On 28 October 2016, a representative of the VCGLR requested a meeting with Mr Jia. Mr Jia informed Mr Tan of this request and told him that the VCGLR had requested that Mr Tan attend this meeting. Mr Jia then attended Wayne Wong & Associates and Mr Tan told him that there was a mistake on the part of the VCGLR and he would contact the VCGLR to sort out the problem.
On 2 November 2016, Mr Tan contacted the relevant representative of the VCGLR to reschedule the meeting from 4 November 2016 to 9 November 2016. The following day, Mr Tan telephoned Mr Jia to inform him of a change of the meeting date, stating that the VCGLR had requested the time change.
A meeting was held at Wayne Wong & Associates on 3 November 2016 attended by Mr Tan, Mr Jia and the principal of Wayne Wong & Associates, Wayne Wong. Mr Tan told Mr Wong that ‘everything was completed and it was a mistake on the part of the VCGLR’.
After the meeting, Mr Tan confessed the true position to Mr Wong.
The Commissioner received a complaint from Mr Wong regarding Mr Tan’s conduct in relation to the Wine Window purchase on 10 November 2016.[22] Following correspondence with the Commissioner in December 2016 and January 2017, on 19 January 2017 Mr Tan surrendered his practising certificate and signed an undertaking to the Victorian Legal Services Board not to continue employment at any law practice.
[22]The Commissioner determined to hold the complaint in abeyance pending an investigation or prosecution by Victoria Police.
In the disciplinary proceedings before VCAT, Mr Tan pleaded guilty to 10 charges of professional misconduct by acting dishonestly in relation to his actions in respect of the Wine Window transfer set out above.[23]
[23]The specific charges to which Mr Tan pleaded guilty are set out in the findings recorded in the VCAT decision.
Episode 3 – the Rockbank transaction
Despite having surrendered his practising certificate on 19 January 2017 and undertaking not to be employed at any law practice, Mr Tan continued working at Wayne Wong & Associates as a ‘volunteer paralegal’ until 4 May 2017.[24] In that capacity, Mr Tan dealt with Robert Liu in relation to a claim for compensation sought to be made by Mr Liu from the Victorian Property Fund. The background to that matter is set out below.
[24]I was informed by counsel for the Commissioner that Mr Tan’s principal solicitor is facing disciplinary proceedings as a result of permitting Mr Tan to continue to work on a voluntary basis.
In late 2015 or early 2016, Mr Liu became the nominated purchaser of certain land in Rockbank (the property). He paid a deposit of $340,000 to J&T Law Investment Pty Ltd (J&T), a real estate agency. Mr Liu engaged Wayne Wong & Associates to act for him in relation to the purchase; Mr Tan had had carriage of that matter on behalf of Wayne Wong & Associates, under the supervision of Mr Wong.
Before settlement of the sale of the property, J&T was wound up for unpaid tax liabilities and a liquidator appointed. Mr Liu was subsequently revoked as a purchaser of the property and on 23 December 2016 settlement of the sale of the property occurred between the vendor and another party as purchaser.
Mr Liu subsequently received $160,000 in relation to the deposit which he had paid for the purchase of the land, but $180,000 of the deposit (the remaining portion of the deposit) was retained by the vendor’s solicitor in their trust account. It was subsequently released to the liquidator of J&T.
It was in these circumstances that Wayne Wong & Associates received instructions from Mr Liu to make a claim for compensation from the Victorian Property Fund.
Although Mr Tan had carriage of this claim on behalf of Wayne Wong & Associates, he did not file the required documentation with Consumer Affairs Victoria in order to effect the claim for compensation.
In March 2017, Mr Liu sought an update from Mr Tan about the progress of the release of the remaining portion of the deposit. Mr Tan told Mr Liu that the remaining deposit would not be released until the conditions of a settlement deed were met.
On 3 April 2017, Mr Liu attended the offices of Wayne Wong & Associates and met with Mr Tan. Mr Liu requested payment of the remaining portion of the deposit.
Remarkably, Mr Tan drew a cheque in the sum of $5,000 from his personal account in favour of Mr Liu. He subsequently transferred a further sum of $10,000 from his personal account to Mr Liu’s account.
Mr Liu contacted Mr Tan again on 10 April 2017 and demanded the release of the remaining portion of the deposit.
In the morning of 11 April 2017, Mr Liu accused Mr Tan of withholding from him the remaining portion of the deposit. That afternoon, when Mr Wong was out of the office, Mr Tan took a blank cheque from Wayne Wong & Associates’ general trust account cheque book which was in Mr Wong’s office. He filled out the cheque by inserting an amount of $165,000, identifying Robert Liu as the payee and then forged Mr Wong’s signature.
Mr Tan then presented the cheque at the Abbotsford Branch of Westpac Bank (the branch) and told Mr Liu that he had deposited the amount into his account. Mr Liu requested Mr Tan make the deposit with a special clearance as he urgently required the funds. Mr Tan returned to the branch and paid a fee for special clearance. On 11 April 2017, the sum of $165,000 was credited to a bank account in the name of Robert Liu and Wi Tang.
Mr Wong was away from his office from 12 April 2017 until about 20 April 2017. Upon his return on 21 April 2017, he discovered that $165,000 was missing from his firm’s general trust account, that a cheque was missing from the general trust account cheque book and that the cheque butt for that cheque was blank. He told Mr Tan that there was a discrepancy with the trust account and an issue with the cheque book and asked him if he knew anything about the discrepancy. Mr Tan denied any knowledge about it.
Mr Wong then attended the branch and discovered that the shortage in the trust account was due to a cheque having been written and issued to Mr Liu. Mr Wong obtained a copy of the cheque and showed it to Mr Tan who continued to deny any knowledge about it. Mr Wong then asked Mr Tan to contact Mr Liu and request a return of the funds.
At about 5.00pm on 21 April 2017, Mr Tan placed his mobile phone number on private and rang and spoke to Mr Wong. Identifying himself as Mr Liu, he said that someone from Wayne Wong & Associates had called him about the payment of $165,000 and that he agreed to return the funds. About ten minutes later, Mr Tan sent an email to Wayne Wong & Associates from a false email account which he had created (the false email account). The email, which purported to be from Mr Liu, stated:
Hi Wayne, Thank you for your call. We believe the amount of $165,000 was mistakenly deposited into our account. Please advise us of your account details for our transfer back.
On 24 April 2017, Mr Tan sent another email to Wayne Wong & Associates from the false email account which again purported to be from Mr Liu. In the email, he dishonestly stated that a bank cheque had been posted.
Having not received a bank cheque from Mr Liu, Mr Wong sent an email to the false email on 26 April 2017 urging Mr Liu to follow up the matter and to ensure the return of the funds.
Mr Wong then telephoned and spoke to Mr Liu. Mr Liu denied calling Mr Wong. He acknowledged having received $180,000, being an electronic transfer of $5,000, a bank cheque of $10,000 and a cheque payment in the sum of $165,000.
On 3 May 2017, Mr Tan transferred $50,000 from his personal account to the general trust account of Wayne Wong & Associates.
On 4 May 2017, Mr Tan signed a ‘statement of admission’ in which he admitted to the ‘crime of theft, fraud, forgery and misappropriation of trust funds’ and referred to some of the matters set out in paragraphs [32]-[50] above. The following day he signed a further statement of admission and was formally interviewed by Victoria Police.
On 27 May 2017, Westpac refunded $115,000 to restore the remaining discrepancy in Wayne Wong & Associates’ trust account.
On 22 September 2017, Mr Tan was charged with the following indictable offences:
(a) The defendant at Richmond on 11 April 2017 did steal a bank cheque being property belonging to Wayne Wong & Associates valued at $5.
(b) The defendant at Richmond on or about 11 April 2017 dishonestly obtained for himself or another financial advantage from Wayne Wong & Associates, in the form of an electronic transfer of funds to Robert Liu, in the amount of $165,000, by deception, by submitting false and/or misleading information to the Westpac Banking Corporation Ltd and legal practitioner Wayne Wong of Wayne Wong & Associates, namely by:
(i) purporting cheque No 402028 033031 152374, dated 11/04/17, made payable to Robert Liu, and drawn on the trust account of Wayne Wong & Associates, in the amount of $165,000 was a legitimate transaction;
(ii) purporting that the Principal Solicitor of Wayne Wong & Associates, Wayne Wong, had knowledge of the negotiation of the Wayne Wong & Associates cheque No 402028 033031 152374;
(iii) purporting Robert Liu had contacted Wayne Wong by telephone in response to providing an explanation concerning the missing funds from the Wayne Wong & Associates’ trust account; and
(iv) purporting he was Robert Liu in email communications with legal practitioner Wayne Wong.
On 13 June 2018, Mr Tan pleaded guilty to one charge of theft and one charge of obtaining financial advantage by deception before her Honour Judge Lawson of the County Court of Victoria. Mr Tan was convicted on 14 June 2018 and placed on a community correction order for two years.
Consideration
I am satisfied that the failings of character revealed by Mr Tan’s admitted misconduct are incompatible with his name appearing on the roll of practitioners kept by the Court.
As indicated by the authorities, honesty is at the heart of the duties owed by legal practitioners to the Court, to fellow practitioners and to clients. Without diminishing the seriousness of the other aspects of Mr Tan’s dishonesty revealed in the three episodes of misconduct to which I have referred, his conduct involved several egregious failures to discharge this cardinal duty he owed to fellow practitioners, the regulatory body and his supervising principal. Central to Mr Tan’s misconduct in the Chinese restaurant transfer was the creation by him of a fake email from the VCGLR which falsely stated that the transfer of the relevant liquor licence had been conditionally approved. Then, in the Wine Window transfer, Mr Tan went so far as to forge a liquor licence which he caused his client to sign and which was placed on Wayne Wong & Associates file. His client operated its business assuming that this document was what it purported to be. Finally, in the Rockbank transaction, Mr Tan’s dishonesty was not limited to the creation of false documents which he persisted in doing in creating the false email account, but extended to dishonestly taking $165,000 from his principal’s trust account. His attempt to then cover his tracks by impersonating his client by email and in a telephone conversation with his principal was audacious and breathtaking in its disregard of basic professional and personal standards.
There are three other aspects of this course of dishonesty which are particularly significant in my decision to remove Mr Tan’s name from the roll. First, in general terms, the three episodes to which I have referred demonstrate Mr Tan’s deceptions to be extensive and calculated. Secondly, the nature and extent of Mr Tan’s dishonesty has escalated from his actions in relation to the Chinese restaurant transfer to those he engaged in by the time of the Rockbank transaction. Thirdly, this escalation has occurred despite the Commissioner and then Victoria Police engaging with Mr Tan in relation to his misconduct from as early as November 2015. Instead of treating the situation in which he then found himself after the events surrounding the Chinese restaurant transfer as an opportunity to rehabilitate himself, he not only persisted in behaving in a manner which was manifestly inconsistent with his professional duties, but the flagrancy of his misconduct increased.
These matters leave me satisfied that Mr Tan is not a fit and proper person to remain on the roll and that he will likely remain so for the indefinite future. My conclusion in that regard is further underlined by the fact that the sorry tale of dishonesty revealed by Mr Tan’s actions in relation to the Rockbank transaction occurred after he had surrendered his practising certificate following his misconduct in relation to the Wine Window transfer. The irresistible conclusion is that either Mr Tan is indifferent about the basal professional obligation of honesty, or he is prepared to sacrifice that duty for other interests.
A most unusual feature of this case is that there is no suggestion that Mr Tan derived any financial or other valuable benefit from his dishonesty. Instead, the interest he appears to have elevated over his duty of honesty was a desire to avoid embarrassment in the face of the mistakes he made in his work in relation to the three episodes of misconduct to which I have referred. In the case of the Chinese restaurant transfer, instead of addressing and remedying his failure to lodge the liquor licence transfer form, he falsified the 6 August email and misrepresented the situation so as to indicate that the transfer had been conditionally approved. Again, in relation to the Wine Window transfer, instead of dealing with the unwelcome news from the VCGLR that the liquor licence transfer form he had submitted could not be accepted, he created a false liquor licence about which he made false representations to his client and Principal. And again, in the case of the Rockbank transfer, Mr Tan’s florid dishonesty occurred after his failure to file a claim for compensation with the Victorian Property Fund.
These observations also highlight that, aside from his dishonesty, Mr Tan’s conduct also engaged the other essential elements of fitness and propriety: in each of the three episodes of misconduct, Mr Tan failed to practise competently and diligently and demonstrated a lack of knowledge of how to address his shortcomings.
Although it is relevant that Mr Tan has not benefited in any financial way from his dishonesty, this leaves unaffected the conclusion that his conduct over time has demonstrated an abject failure to recognise the paramount need for honesty and candour in dealing with errors, shortcomings and mistakes in practice. At least in relation to Mr Tan’s deceptions in relation to the Rockbank transaction, it would also appear that his conduct occurred in the face of persistent and urgent demands by his client. However, as observed by Pagone J in Frugtniet, honesty is required ‘irrespective of self-interest or embarrassment’.[25] Given the professional duties and responsibilities to which they are subject, this injunction is of special significance to legal practitioners. The legal system of which they are part assumes that legal practitioners will not forego their fundamental obligation of honesty in the face of client demands, or when mistakes or errors of practice occur.
[25]See [7] above.
In concluding that Mr Tan is not a fit and proper person to be a legal practitioner and will likely remain so for the indefinite future, it is relevant that Mr Tan did not seek to rely upon any evidence to suggest that he had genuine insight into his misconduct, or that he was taking steps to rehabilitate. There is no basis upon which I might be satisfied that Mr Tan has genuine insight into his actions and is unlikely to engage in such conduct again.
Finally, a conclusion that Mr Tan is not a fit and proper person and that there is no prospect that he might attain that status in the future is also supported by the fact that he has consented to his removal from the roll.[26]
[26]See also the approach adopted by Forbes J in Victorian Legal Service Board v Gobbo [2020] VSC 692, [5], [53].
I am accordingly satisfied that Mr Tan is not a fit and proper person to be a legal practitioner and will likely remain so for the indefinite future.
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