Wong v Law Institute of Victoria
[2014] VSC 136
•31 March 2014
| Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. 04043 of 2013
| JONATHAN WONG | Plaintiff |
| v | |
| LAW INSTITUTE OF VICTORIA | Defendant |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10-11 December 2013 | |
DATE OF JUDGMENT: | 31 March 2014 | |
CASE MAY BE CITED AS: | Wong v Law Institute of Victoria | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 136 | |
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ADMINISTRATIVE LAW — Leave to appeal under s 148 Victorian Civil and Administrative Tribunal Act 1998 — Law Institute of Victoria refusal to renew solicitor’s practising certificate —Solicitor not fit and proper person under s 2.4.7 Legal Profession Act 2004 — Review of VCAT decision under s 2.4.37 Legal Profession Act 2004 — Whether Tribunal erred by adopting findings of Migration Agents Registration Authority — Whether breach of s 117(1) and (5) of Victorian Civil and Administrative Tribunal Act 1998by failure to give reasons —Whether imposition of pre-conditions to application for renewal of practising certificate punitive —Whether findings open on evidence —Leave refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Hurley | Jonathan Wong & Associates |
| For the Defendant | Ms K Anderson | Law Institute of Victoria |
HER HONOUR:
The application
On 4 September 2012, the Law Institute of Victoria (‘the LIV’) (as delegate of the Legal Services Board) refused to renew Mr Wong’s local practising certificate for the period from 1 July 2012 to 30 June 2013. Under s 2.4.7(2)(b) of the Legal Profession Act 2004 (‘the Legal Profession Act’) the Board or its delegate could not renew a local practising certificate unless satisfied that the applicant was a ‘fit and proper’ person to continue to hold one. The LIV had decided that Mr Wong was not.
Mr Wong sought a review of the LIV decision. The Victorian Civil and Administrative Tribunal (‘VCAT’) affirmed the decision. On 10 July 2013, Member Wentworth ordered that Mr Wong not be granted a practising certificate before 1 July 2014. She added the requirement that he demonstrate in any application for a practising certificate that, in the preceding 12 months, he had completed at least 10 hours of LIV approved Continuing Professional Development training in the area of ethics and professional responsibility.
Mr Wong now seeks leave to appeal from that decision and those orders under s 148 of the Victorian Civil and Administrative Tribunal Act 1997 (‘the VCAT Act’). To succeed, he must persuade the Court that he has identified a question of law relevant to the grant of the relief sought on appeal. He must show a real or significant argument, to the extent that there is sufficient doubt about the question to justify the grant of leave, and he must establish that to allow the error to go uncorrected would impose substantial injustice.[1]
[1]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 335-7 (Phillips JA (Tadgell and Batt JJA agreeing)).
Proposed grounds of appeal and questions of law
The proposed grounds of appeal and questions of law which remain in Mr Wong’s Further Amended Draft Notice of Appeal dated 11 December 2013 are as follows:
GROUNDS OF APPEAL
4.The Tribunal erred in law in determining a proceeding under Part 2.4 of the [Legal Profession Act] that raised the issue of whether the applicant was ‘fit and proper’ to hold a practising certificate under the [Legal Profession Act] by making orders that effected a punishment of the applicant where the applicant had already been punished in proceedings under Part 4.4 of the [Legal Profession Act].
5.The Tribunal erred in law in making findings that the applicant was not fit and proper by reference to his conduct as a migration agent by adopting the findings and opinions of MARA instead of making its own judgement.
5A.The Tribunal erred in law by failing in paragraphs [159] and [160] to give reasons for the decision in paragraph [170] as required by sec 117(1) and (5) of the VCAT Act in respect of its finding that the applicant had given immigration assistance while his registration was suspended.
5AA.The Tribunal erred in law in failing in paragraphs [159] and [160] to comply with the requirements of sec 117(1) and (5) of the VCAT Act by failing to clearly state whether it concluded the applicant had continued to give immigration assistance while his registration was suspended.
5B.The Tribunal erred in accepting there was material before it that allowed it to find in accordance with Briginshaw v Briginshaw [1938] 60 CLR 336 that the applicant had given immigration assistance while his registration as a migration agent was suspended.
7.Having found that the applicant was a person who fell within the categories of matters referred to in sub-sec 2.4.4(1) of the [Legal Profession Act] the Tribunal erred in law by failing to consider under sub-sec 2.4.4(2) whether the circumstances warranted a finding that he may yet be found to be a fit and proper person ? (sic)
QUESTIONS OF LAW
5A.Did the Tribunal err in law by failing in paragraphs [159] and [160] to give reasons as required by sec 117(1) and (5) of the VCAT Act when finding that the applicant had given immigration assistance while his registration was suspended?
5AA.Did the Tribunal fail to comply with the requirements of sec 117(1) and (5) of the VCAT Act by failing to give reasons that set out whether it had in fact found the applicant had continued to give immigration assistance while his registration was suspended?
5B.Was it open to the Tribunal to find in accordance with the law as explained in Briginshaw v Briginshaw [1938] 60 CLR 336 the applicant had given immigration assistance while his registration as a migration agent was suspended given the gravity of such a finding?
6.Does the fact that sec 2.4.37(3) of the [Legal Profession Act] give VCAT (but not [the LIV]) the power in proceedings under Part 2.4 of the [Legal Profession Act] to make the orders referred to in the discipline proceedings under Part 4.4?
9A.Did the Tribunal err by accepting at paragraphs [112], [113], [114], and [120]-[122], MARA’s findings as discharging its duty [under] the VCAT Act to determine the review?
11.Having found that the applicant was a person who fell within the categories of matters referred to in sub-sec 2.4.4(1) of the Legal Profession Act did the Tribunal err by failing to consider under sub-sec 2.4.4(2) whether the circumstances warranted a finding that he may yet be found to be a fit and proper person?
Relevant statutory provisions
There are a number of statutory provisions referred to in the further amended draft notice of appeal or otherwise relevant, which I will include here.
VCAT Act
The obligation to give reasons for a Tribunal decision arises under s 117:
117 Reasons for final orders
(1)The Tribunal must give reasons for any order it makes in a proceeding, other than an interim order,…
(5)If the Tribunal gives written reasons, it must include in those reasons its findings on material questions of fact.
The relevant provisions in relation to appeals are in s 148:
148 Appeals from the Tribunal
(1)A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding— …
(b)to the Trial Division of the Supreme Court in any other case—
if … the Trial Division, as the case requires, gives leave to appeal. …
(7)The … Trial Division … may make any of the following orders on an appeal—
(a)an order affirming, varying or setting aside the order of the Tribunal;
(b)an order that the Tribunal could have made in the proceeding;
(c)an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;
(d)any other order the court thinks appropriate.
The Legal Profession Act
Section 1.2.1 provided that a ‘suitability matter’ has the meaning given in s 1.2.6 which is in these terms:
1.2.6 Suitability matters
(1)Each of the following is a suitability matter in relation to a natural person—
(a)whether the person is currently of good fame and character;
…
(g)whether the person—
…
(ii)has been the subject of disciplinary action, however expressed, in another profession or occupation that involved a finding of guilt;
The purposes of Part 2.2 include those set out in ss 2.2.1 and 2.3.1:
2.2.1 Purposes
The purposes of this Part are—
(a)to protect the public interest in the proper administration of justice by ensuring that legal work is carried out by those who are properly qualified to do so;
(b)to protect consumers by ensuring that persons carrying out legal work are entitled to do so.
2.3.1 Purposes
The purposes of this Part are—
(a)in the interests of the administration of justice and for the protection of consumers of legal services, to provide a system under which only applicants who have appropriate academic qualifications and practical legal training and who are otherwise fit and proper persons to be admitted are qualified for admission to the legal profession in this jurisdiction;
(b)to provide for the recognition of equivalent qualifications and training that makes applicants eligible for admission to the legal profession in other jurisdictions.
The question of the suitability of a person to hold a local practising certificate is dealt with in s 2.4.4:
2.4.4 Suitability to hold local practising certificate
…
(1)The Board, in considering whether or not the person is, or is no longer, a fit and proper person to hold a local practising certificate, may take into account any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section—
…
(f)any other matter the Board thinks appropriate.
(2)A person may be considered a fit and proper person to hold a practising certificate even though the person is within any of the categories of the matters referred to in subsection (1), if the Board considers that the circumstances warrant the determination.
The grant or renewal of a local practising certificate is the subject of s 2.4.7:
2.4.7 Criteria for grant or renewal of local practising certificate
(1)The Board must not grant a local practising certificate unless it is satisfied that the applicant—
(a)was eligible to apply for the grant when the application was made; and
(b)is a fit and proper person to hold the certificate.
(2)The Board must not renew a local practising certificate if it is satisfied that the applicant—
(a)was not eligible to apply for the renewal when the application was made; or
(b)is not a fit and proper person to continue to hold the certificate.
A person may apply to the Legal Services Board for the renewal of his practising certificate under s 2.4.8.
The Board was empowered to impose conditions on a renewed practising certificate under s 2.4.14:
2.4.14 Conditions imposed by the Board on grant or renewal
(1)The Board may impose conditions on a local practising certificate when it is granted or renewed.
The Board had power under s 2.4.27(2)(b) to require an applicant to provide a written statement as to why he considered himself to be a fit and proper person to hold a practising certificate. The Board then had power to refuse to renew his practising certificate under s 2.4.28, which provided:
2.4.28 Refusal, amendment, suspension or cancellation of local practising certificate—failure to show cause
(1)The Board may refuse to grant or renew, or may amend, suspend or cancel, a local practising certificate if the applicant or holder—
…
(b)has provided a written statement in accordance with section … 2.4.27, but the Board does not consider that the applicant or holder has shown in the statement that, despite the show cause event concerned, he or she is a fit and proper person to hold a local practising certificate.
Under s 2.4.29, the Board could prevent the applicant from making further applications:
2.4.29 Restriction on making further applications
(1)This section applies if the Board decides under section … 2.4.28 to refuse to … renew a local practising certificate or to cancel a person's local practising certificate.
(2)The Board may also decide that the person is not entitled to apply for the grant of a local practising certificate for a specified period ending on or before the end of the current financial year.
…
(4)A person in respect of whom a decision has been made under this section, or under a provision of a corresponding law, is not entitled to apply for the grant of a local practising certificate during the period specified in the decision.
An unsuccessful applicant for renewal of a practising certificate could seek a review of the Board’s decision by the Tribunal under s 2.4.37. As well as giving the Tribunal all the powers of the Board in relation to the application to renew the practising certificate, s 2.4.37 gave the Tribunal the additional powers it would have had in a matter arising under the complaint and disciplinary provisions of Part 4:
2.4.37Review of decisions about local practising certificates
(1)A person whose interests are affected by the decision may apply to the Tribunal for review of a decision of the Board—
(a)refusing to … renew a local practising certificate under section … 2.4.28;
…
(3)On a review under this section, in addition to having all the powers of the Board in respect of the decision, the Tribunal may make any order the Tribunal could make under section 4.4.17 or 4.4.19 (except paragraph (a)).
The orders which the Tribunal could make under ss 4.4.17 and 4.4.19 were set out in those sections giving power to make them as follows:
4.4.17Orders requiring official implementation in this jurisdiction
The Tribunal may make the following orders under this section—
…
(c)an order that a local practising certificate not be granted to the practitioner before the end of a specified period;
…
4.4.19 Orders requiring compliance by practitioner
The Tribunal may make the following orders under this section—
…
(c)an order that the practitioner undertake and complete a specified course of further legal education;
…
(n)any other order the Tribunal thinks fit.
The purposes of Part 4 itself were set out in s 4.4.1:
4.1.1Purposes
The purposes of this Chapter are—
(a)to provide a scheme for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of legal services and the public generally;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession;
(c) to provide a means of redress for complaints about the legal profession.
Background
A number of background facts were not in dispute.
Mr Wong had sought the renewal of his practising certificate under s 2.2.8 on 30 April 2012.
Mr Wong had been a legal practitioner since 1984 and a registered migration agent under the Migration Act 1958 (Cth) until the Migration Agents Registration Authority (‘MARA’) had suspended his registration on 5 August 2009 and had later cancelled it on 28 February 2012. He had not sought a review of either MARA determination.
He had also been the subject of disciplinary proceedings before the Tribunal itself in relation to his legal practice. On 2 March 2009 (before the 5 August 2009 MARA decision), Ross J had found him guilty of three counts of legal professional misconduct.[2] On 21 August 2009, Senior Member Davis had also found him guilty of one such count.[3]
[2]Legal Services Commissioner v Wong (Legal Practice) [2009] VCAT 318 (2 March 2009).
[3]Legal Services Commissioner v Wong (Legal Practice) [2009] VCAT 1728 (21 August 2009).
The MARA decision on 28 February 2012 had dealt with four complaints. Two related to alleged advertising by Mr Wong to the effect that he was entitled to provide immigration assistance as a registered migration agent, despite the suspension of his registration in 2009. Another related to him allegedly providing that assistance after being engaged by Mr Andrew Young to obtain a visa for his wife, Mrs Fang.
MARA had found the complaints proven and had not accepted Mr Wong’s explanation that Mr Young’s matter had been processed by his employee, Mr K. Le, a registered migration agent at the time. MARA had found that it had never had a record of the registration of a ‘K. Le’. It had cancelled Mr Wong’s registration as a migration agent on 28 February 2012.
Subsequently, on 29 March 2012, Member Butcher had found him guilty at the Tribunal, of two further counts of professional misconduct.
The LIV, as the Board’s delegate, had written to Mr Wong on 25 June 2012, referring to the 2012 MARA and Tribunal decisions and requesting him to provide a written statement as to why he was, nevertheless, a fit and proper person to hold a practising certificate. Mr Wong responded by letter dated 9 July 2012.
The Tribunal’s decision
Member Wentworth referred to the background MARA and Tribunal proceedings in the reasons for her decision that Mr Wong was not a fit and proper person to hold a legal practising certificate. She dealt with the overlap between those decisions as follows:
14.In both its decisions, MARA made adverse findings in relation to Mr Wong’s integrity and found that he was not a fit and proper person to provide immigration assistance.
15.MARA’s 2012 decision to cancel his registration was based largely on its findings that, despite his suspension, Mr Wong had misleadingly advertised that he was a registered migration agent, and had continued to provide immigration assistance.
Overlap in subject matter
16.There has been some overlap in the subject matter of the disciplinary proceedings taken by the Legal Services Commissioner and by MARA. The overlap, in summary, is as follows.
17.In 2007 and 2008 Mr Wong applied to MARA for renewal of his migration agent registration. In the statutory declarations he made to MARA, he should have disclosed investigations by the Commissioner, which were on foot at the time. He did not disclose those investigations.
18.MARA became aware of the failure to disclose the Commissioner’s investigations when those investigations led to the charges of professional misconduct heard and determined by Ross J in March 2009. MARA’s 2009 decision to suspend Mr Wong’s registration was based in part on the two false statutory declarations.
19.The charges heard by Ross J in 2009 related to Mr Wong’s failure to respond to the Commissioner’s requests for information and documents in relation to two complaints: a complaint from a Mr and Mrs Leong, who were clients of Mr Wong in his capacity as a lawyer (one count); and a complaint by a Mr Wang whose migration matter Mr Wong handled (two counts).
20.Mr Wang had also complained to MARA. MARA made findings in relation to Mr Wang’s complaint in its 2009 decision.
21.As a result of MARA’s 2009 decision, the Commissioner in turn became aware that Mr Wong had made the two false statutory declarations in 2007 and 2008. The declarations were the subject of the charges of professional misconduct heard by Member Butcher in 2012.
22.In March 2012, Member Butcher found Mr Wong guilty of two counts of professional misconduct at common law in relation to those statutory declarations - that he made statutory declarations which he ought to have known were false. Mr Wong had been charged with knowingly making false declarations, but the charges were amended to the lesser charge (that he ought to have known they were false) and Mr Wong pleaded guilty to them in their amended form.[4]
[4]Wong v Law Institute of Victoria Ltd (Legal Practice) [2013] VCAT 1178 (10 July 2013), [14]-[22].
Member Wentworth went on to note that, despite the overlap and Mr Wong’s challenges to the Tribunal’s previous decisions on jurisdictional grounds, his counsel had conceded that she could take into account the conduct which had been the subject of proceedings before both MARA and the Tribunal.[5] Accordingly, she disregarded the Tribunal’s own previous decisions, to the extent that they had been dealt with by MARA, but took into account those MARA determinations and the conduct to which they related.[6] She also had regard to one of the unchallenged determinations of Ross J and the unchallenged determination of Senior Member Davis.
[5]Ibid [44].
[6]Ibid [47].
The Tribunal conducted the review under s 2.4.37 of the Legal Profession Act as a hearing de novo.[7] It heard evidence which had not been before the LIV. Mr Wong made a witness statement and gave oral evidence at the hearing as well.
[7]See Zarah Garde-Wilson v Legal Services Board [2008] VSCA 43.
Member Wentworth emphasised that her decision was not only based on Mr Wong’s disciplinary history, both as a migration agent and as a solicitor, but also upon his conduct since March 2012 in relation to his practising certificate renewal application as well as his evidence about the previous Tribunal and MARA decisions.[8] She said that she had also borne in mind that the Tribunal had not previously taken away Mr Wong’s right to practise.[9]
[8]Wong v Law Institute of Victoria Ltd (Legal Practice) [2013] VCAT 1178 (10 July 2013), [49].
[9]Ibid [50].
The Tribunal considered the weight which should be given to the MARA decision. Member Wentworth noted Mr Wong’s submission that, whilst he could not dispute the fact of those decisions, he could contest MARA’s conclusions and its judgments. She agreed that the MARA decisions did not create any issue estoppel in relation to the facts.[10] She noted Mr Wong’s further submissions that the Tribunal should accept his evidence and conclude that the MARA findings were erroneous or that they contained irrelevant criticism and that he argued that, in any event, they should be given minimal weight.
[10]Ibid [106].
Member Wentworth was not persuaded that the MARA findings were incorrect solely on the basis of Mr Wong’s evidence before the Tribunal.[11] She stated that she had accorded the findings weight, accepting MARA’s expertise to evaluate a migration agent’s conduct in light of the requirements of migration law and practice.[12]
[11]Ibid [108].
[12]Ibid [107].
Member Wentworth explained her decision in the paragraphs which lead up to and include paragraphs [112]-[114] to which Mr Wong refers in paragraph 9A of the proposed questions of law in his draft notice of appeal:
109.In a number of instances, Mr Wong gave the same explanation to this Tribunal that he gave to MARA. Unlike the Tribunal however, MARA had before it not only Mr Wong’s explanation, but also details of the complaint made by the client. Importantly, MARA also had before it Immigration Department records that enabled it to evaluate Mr Wong’s explanations in the light of those records
110.In a number of instances, MARA found that those records directly contradicted Mr Wong’s explanation.
111.For example, MARA had departmental records before it that indicated that two visa applications were lodged using his [Migration Agent’s Registration Number] on 11 January 2010, while his registration was suspended.[13]
112.MARA also had regard to information from one of the complainants that Mr Wong prepared and dealt with his visa application while suspended.
113.According to Departmental records, the decision letter for the Young visa application was addressed and sent to Mr Wong at his business address, rather than transmitted by email to Mr Le, as stated by Mr Wong to MARA and to this Tribunal.
114.Further MARA considered its own records in relation to registered migration agents and found that there was no record of anyone by the name of K Le ever having been registered with MARA as a migration agent. I accept this finding and deal with the consequences of it below.[14]
[13]The Tribunal’s footnote to this paragraph refers to paragraph [72] of the 28 February 2012 MARA decision.
[14]Wong v Law Institute of Victoria Ltd (Legal Practice) [2013] VCAT 1178 (10 July 2013), [109]-[114].
Member Wentworth went on to give other reasons for not accepting Mr Wong’s explanations for his conduct in the following paragraphs. They include paragraphs [120]-[122] to which Mr Wong also refers in paragraph 9A of the proposed questions of law:
116.As a result of matters that arose in cross-examination, I formed the view that in giving the Tribunal the same explanations he gave MARA, Mr Wong had been prepared to state, as positive facts, matters which he conceded under cross-examination to be guesswork or speculation. This significantly discredited his explanations, in my view.
117.A critical instance of this was the explanation Mr Wong gave to the Tribunal in relation to the Young matter.
118.By way of background, the Department had granted a partner visa in January 2010 and had notified Mr Wong’s firm in that month, but the information was not given to Mr Young. Mr Young made several inquiries with Mr Wong’s firm over the course of 2010. In October 2010, Mr Young and his wife discovered their application had been granted some 9 months earlier, after they made their own inquiries with the Department.
119.As noted above, in his witness statement in these proceedings, Mr Wong said that the notification had gone to the email address of a Mr Kevin Le, who, Mr Wong said, was an employee solicitor and registered migration agent and was handling the matter.
120.He gave the same explanation to MARA. On the basis of Department records, however, MARA was satisfied that the notification had not gone by email, and had not been addressed to Kevin Le. More seriously, on the basis of its own records MARA found that there was no record of Kevin Le being a registered migration agent. The latter finding formed part of MARA’s conclusion that Mr Wong had continued to work as a migration agent despite his suspension – it rejected his explanation that he had delegated that work to a registered migration agent, Mr Le.
121.I accepted that MARA was in the best position to establish whether Mr Le was a registered migration agent and conclude that he was not, and had never been. In light of Mr Wong’s willingness to make the same statement to the Tribunal, that Mr Le was a registered migration agent, I formed an adverse view of Mr Wong’s willingness and ability to comply with his obligations of frankness and candour to this Tribunal.
122.As a related matter, Counsel for the Commissioner established on cross-examination that Mr Wong’s positive statement – that the email had gone to Kevin Le’s email address – was guesswork.
123.These are serious matters. They do not only go to Mr Wong’s credit as a witness but also to the question of whether he was frank and candid with the Tribunal. They directly relate to an assessment of whether he is a fit and proper person to hold a practising certificate.
124.I found Mr Wong not to be a witness of credit and concluded that he had made statements to the Tribunal, which were demonstrably untrue.[15]
[15]Ibid [116]-[124].
Member Wentworth considered that the MARA findings and Mr Wong’s evidence were ‘suitability matters’ under sub-ss 1.2.5(a) and (g) of the Legal Profession Act. If there were any doubt whether the MARA findings included one of guilt, she took the view that they were nevertheless relevant under s 2.4.4(f), as other matters the Tribunal thought appropriate to take into account as to whether Mr Wong was a fit and proper person to hold a practising certificate.
In paragraph [131], Member Wentworth recorded MARA’s findings that:
·The seriousness of [Mr Wong’s] conduct may be reasonably regarded as disgraceful or dishonourable by registered migration agents of good repute and competency;
·Mr Wong is not a person of integrity and is not a fit and proper person to give immigration assistance; and
·His conduct would be viewed with contempt by other registered migration agents in the profession. (footnotes omitted)[16]
[16]Citing MARA, ‘Decision Report’ (Decision No 9358785-4878 4952 5335 5447, 28 February 2012), [174], [175] and [179].
In paragraphs [158]-[160], Member Wentworth went on to summarise her concerns about Mr Wong’s evidence at the Tribunal itself:
158.I have noted above the matters that concerned me about Mr Wong’s evidence. Those concerns in summary are:
·He attributed the complaints made by clients to MARA and the Commissioner as motivated only by seeking to avoid payment, with the exception of Young, in the face of considered findings by MARA upholding those complaints, and a 2008 Tribunal decision dismissing his claim for costs against Mr Wang;
·He persisted in explanations that he had given to MARA, which MARA had rejected on the basis of on information provided by the clients and departmental records: in a number of instances he conceded that the explanation he had given the Tribunal, which he had stated as positive fact, was instead guesswork;
·His witness statement argued the merits of the client complaints to MARA and the Commissioner but failed to address the fact that the 2009 Tribunal decisions related to failing to respond to the Commissioner’s requests for information. His explanation in evidence about why he had failed to do so led me to conclude that he had not responded because he believed the complaints to be unjustified;
·He added explanations under cross-examination that had not been in his witness statement and in some cases were inconsistent with what he told MARA.
159.Most serious, in my view, is his repetition in these proceedings, of the statement made to MARA that he had delegated work to Kevin Le who was an employee solicitor and registered migration agent. MARA had no record of a person by that name in its records of registered migration agents, and concluded that Mr Wong’s statement was false. I have reached the same conclusion.
160.The fact the Mr Le was not a registered migration agent also supports a conclusion that Mr Wong continued to provide migration assistance after his suspension. It was part of his case that he had delegated the relevant work to a registered migration agent at the relevant time.[17]
[17]Wong v Law Institute of Victoria Ltd (Legal Practice) [2013] VCAT 1178 (10 July 2013), [158]-[160].
Member Wentworth went on to affirm the LIV’s decision and to decide that Mr Wong was not a fit and proper person to hold a practising certificate. She stated her ultimate conclusion in paragraph [170]. Proposed ground of appeal and question of law 5A each refer to paragraphs [159] and [160] as those where the Tribunal erred by failing to give reasons for what is said to be a finding in paragraph [170] that Mr Wong had given immigration assistance while his registration was suspended.
The Member stated her conclusions as follows:
Is Mr Wong a fit and proper person to hold a practising certificate?
164.On the basis of the evidence that he gave the Tribunal, I was satisfied to the required degree that Mr Wong either has no real understanding of what his obligation of frankness and candour involves, or understands that obligation but chooses to disregard it. He has a disregard for the regulatory framework and his professional obligations in relation to it, and has learned little from the decisions of the Tribunal and MARA in relation to those obligations. He persisted in attributing his disciplinary record to a coincidence of disgruntled clients.
165.The conclusions I reached are consistent with previous findings of MARA that he has a disregard for or indifference to professional obligations and the regulatory framework.
166.They are consistent with Senior Member Davis’ concerns in 2009 that Mr Wong had learned little from the decision of Ross J four months earlier. They are consistent with Member Butcher’s conclusion in 2012 that Mr Wong displays a certain lack of regard or lack of attention to the requirements of regulatory authorities that can only be condemned.
167.My conclusions go further. I formed the view that in giving evidence to the Tribunal in these proceedings Mr Wong had been prepared to state matters as positive fact which he later conceded were guesswork or speculation.
168.Most seriously, he repeated a statement, that his employee Kevin Le was a registered migration agent, which MARA found to be false based on their records. I am satisfied that at the least Mr Wong made that statement carelessly as to its truth and in circumstances where he ought to have known that it was demonstrably untrue.
169.Because of the seriousness of this conclusion, I raised it with Counsel during their final submissions. Counsel for Mr Wong sought instructions from him. Those instructions were limited to the statement that the employee was a solicitor.
170.On the totality of the matters raised in this case including the matters not before the Tribunal in 2012 but before me, I am satisfied to the required degree that Mr Wong is not a fit and proper person to hold a practising certificate.[18]
[18]Ibid [164]-[170].
The issues in this application
Proposed ground of appeal and question 5AA - Did the Tribunal err by failing to provide reasons showing whether it had concluded that Mr Wong practised as a migration agent after suspension?
Proposed ground of appeal 5AA asserts that the Tribunal erred by failing to comply with sub-ss 117(1) and (5) of the VCAT Act by failing to give reasons indicating whether it had found that Mr Wong continued to give immigration assistance whilst his registration was suspended. The proposed ground of appeal 5AA states that this failure occurred in paragraphs [159] and [160] of the Tribunal’s reasons.
Counsel for Mr Wong argues that the Tribunal’s reasons in those two paragraphs ‘leave the reader guessing’ as to whether the Tribunal has found that Mr Wong continued to practise as a migration agent after suspension. As a result, he submits, the reasons do not reveal the basis on the evidence for any such finding and whether the requisite Briginshaw standard of proof has been met.[19] Counsel argues that the Tribunal should have said that it was not making such a finding if it did not do so.
[19]See Briginshaw v Briginshaw (1938) 60 CLR 336.
The answer is provided by counsel for the LIV who points out that it was not in issue before the Tribunal as to whether Mr Wong had continued to practise as a migration agent after suspension. The issue for the Tribunal, squarely addressed by the reasons, was as to whether Mr Wong was a fit and proper person to hold a practising certificate. It was not a necessary step in the process of reasoning to that conclusion that the Tribunal determine whether or not Mr Wong practised as a migration agent after suspension, as MARA found he did in its 2012 decision. The Tribunal’s obligation under s 117(5) of the VCAT Act to include in its reasons its findings on material questions of fact did not require it to make a determination of that issue.
The relevant material facts for the Tribunal were those of the MARA decision itself and Mr Wong’s response to it. It was that response which Member Wentworth considered relevant to her assessment of Mr Wong’s attitude to issues of professional regulatory compliance and his willingness and ability to comply with his obligations of frankness and candour to the Tribunal itself.
In particular, the Tribunal was concerned about Mr Wong’s continuing assertion that he had left the conduct of the Young matter to an employee solicitor and registered migration agent, Mr Kevin Le, during the period of his own suspension. He had made the same assertion to MARA and the Tribunal accepted MARA’s findings that there was no such registered migration agent included in its records. Mr Wong had been given ample opportunity to address this issue by adducing evidence to contradict what would have been a matter of public record. He had not done so either in his witness statement or in viva voce evidence, despite the 25 June 2012 LIV letter requesting him to address the MARA findings.
The application for leave on proposed ground 5AA must fail because, in my view, Mr Wong has failed to show a real argument that there is sufficient doubt on the matter to justify the grant of leave.
Proposed ground and question 5B - Was such a finding open?
In proposed ground of appeal 5B, Mr Wong asserts that the Tribunal erred, on the basis that it had found that he gave immigration assistance whilst his registration was suspended. He maintains that it was not open to the Tribunal to make such a finding, applying the Briginshaw standard of proof, taking into account the gravity of the conclusion. Question 5B is the relevant question.
Even if the Tribunal should be taken as having found that Mr Wong continued to give immigration assistance after his registration was suspended, there was ample evidence upon which it might have been so satisfied to the Briginshaw standard. There was the evidence that MARA had found on 28 February 2012 that Mr Wong had advertised, misleadingly, that he was able to provide immigration assistance after the suspension of his registration.[20] There was also the evidence that Mr Wong had not sought a review of that suspension. There was the evidence of that representation by the use of Mr Wong’s suspended migration registration number on letterhead on his bills of costs and correspondence dated after his suspension.[21] There was also the evidence (considered unsatisfactory by the Tribunal[22]) that Mr Wong explained the letterhead use of his suspended registration number on the basis that his trusted employees, responsible for the letters, had used old templates and that the use of his number was an oversight. There was then Mr Wong’s repetition of his explanation to MARA that he had delegated that work to Mr Le, a registered migration agent.
[20]MARA, ‘Decision Report’ (Decision No 9358785-4878 4952 5335 5447, 28 February 2012) [69]-[71].
[21]Wong v Law Institute of Victoria Ltd (Legal Practice) [2013] VCAT 1178 (10 July 2013), [128].
[22]Ibid [129].
I agree with counsel for the LIV that, at the Tribunal, Mr Wong did not seriously contest the MARA finding that Mr Le was not registered as a migration agent, notwithstanding the ample opportunities afforded him to do so.
In all the circumstances, I am not persuaded that there is a real argument to the extent that there is sufficient doubt on the issue as to whether it would have been open to the Tribunal to make such a finding, applying the Briginshaw standard, to justify the grant of leave to appeal on proposed ground 5B.
Proposed ground 5 and question 9A - Did the Tribunal simply adopt MARA’s findings when reaching its conclusion?
In proposed ground of appeal 5, Mr Wong claims that the Tribunal did not afford him natural justice in so far as it found he was not ‘fit and proper’ by simply adopting MARA’s finding and opinion instead of making its own judgment. The related question of law 9A refers in particular to paragraphs [112]–[114] and [120]-[122] of the Tribunal reasons to argue that it adopted those findings to discharge its obligation when reviewing the LIV decision as to whether Mr Wong was a fit and proper person to practise as a legal practitioner.
Applicable principles with reference to a tribunal’s treatment of evidence in other proceedings were stated in Cadbury UK Ltd v Registrar of Trademarks[23] by Finkelstein J as follows:
17.… unless otherwise provided by statute, rules of evidence do not bind administrative tribunals. Subject to an overriding duty of fairness … a tribunal may have regard to probative evidence of any kind from any source. …
18.The evidence to which an administrative tribunal may have regard can include evidence that has been given in another proceeding, including a court proceeding, provided the evidence is relevant to an issue before the tribunal: In Re A Solicitor [1993] QB 69 at 77. A tribunal may also accept as evidence the reasons for judgment given by a judge in other proceedings. But if the tribunal takes the approach that it should not disagree with findings made by the judge then the tribunal has fallen into error. The general rule is that a tribunal that is required to decide an issue will be in breach of that obligation if it merely adopts the decision of the judge on the same issue. … I do not mean to imply that reasons for decision given by a judge are irrelevant to an administrative tribunal. First of all, those reasons may, as I have said, be received into evidence. They must then be given some weight. Indeed, the judge’s findings may be treated as prima facie correct. On the other hand, if the judge’s findings are challenged, the tribunal must decide the matter for itself on the evidence before it: General Medical Council v Spackman [1943] AC 627 …
19.Of course, when the tribunal is required to decide the matter for itself it is entitled to have regard to the judge’s findings. What weight it attaches to those findings will depend on a variety of considerations. Without in any way wishing to be exhaustive, the considerations can include: (a) whether the tribunal has available to it more evidence than was before the judge; (b) whether the arguments put to the tribunal were made to the judge; and (c) whether the tribunal is a specialist body with expert knowledge of the subject matter.[24]
[23](2008) 107 ALD 316.
[24]Ibid [17]-[19].
In my view, the Tribunal treated the MARA findings correctly and made its own findings of fact properly taking into account MARA’s findings as a more expert body in the area, as it was entitled to do. Mr Wong’s submissions ignore the Tribunal’s detailed reasons identifying the findings of fact upon which it determined the different question before it as to whether Mr Wong was a fit and proper person to hold a legal practising certificate.
Member Wentworth addressed the legal framework for her determination of that question.[25] She set out the conclusions to be reached on the basis of previous Tribunal and MARA decisions.[26] She described MARA’s relevant findings and Mr Wong’s evidence in relation to them.[27] Significantly, she considered the weight to be given to MARA’s findings in relation to Mr Wong’s conduct as a migration agent and its relevance.[28] She also analysed the effect of Member Butcher’s decision and Mr Wong’s response to it, as well as relevant matters which had arisen since March 2012.[29] Member Wentworth concluded that Mr Wong’s 9 July 2012 reply to the LIV’s 25 June 2012 letter comprehensively failed to address the serious findings made by MARA in its 2012 decision.[30]
[25]Wong v Law Institute of Victoria Ltd (Legal Practice) [2013] VCAT 1178 (10 July 2013), [33]-[40].
[26]Ibid [42]-[47].
[27]Ibid [72]-[88], [95]-[103].
[28]Ibid [104]-[131].
[29]Ibid [132]-[157].
[30]Ibid [151].
Member Wentworth noted that Mr Wong’s 9 July 2012 reply stated that the MARA decisions related to the ‘most disorganised times of [his] practice between 2006 to 2008’.[31] She also noted that Mr Wong declared that he had made structural changes to his practice, in terms of staffing levels and office automation, since 2002. He had expressed confidence that they would overcome the disorganised office management in that period. Member Wentworth then went on to say:
155.In my view, the detailed and serious findings made by MARA required a detailed and serious response by Mr Wong. I formed the view, from reading this letter, that he had no significant appreciation of either the seriousness of those findings, or the need to provide some better explanation.
156.Counsel for Mr Wong submitted that what Mr Wong did or did not say in the letter of 9 July 2012 are matters of evidence and not inference. In my view I can draw direct inferences from what Mr Wong said, and what he did not say, in the letter. The letter was a clear opportunity for Mr Wong to put in writing all the matters that he relied upon to persuade the LIV that he was a fit and proper person despite the decisions.
157.As noted above, Mr Wong described the MARA 2012 decision as ‘ludicrous’ in evidence before me. He said that he thought the 2009 decision had some merit, even though he did not agree completely. His response to the LIV is consistent with dismissing the MARA 2012 decision and choosing not to address it. If he took the finding seriously, there is no indication of that in his letter. (footnote omitted).[32]
[31]Ibid [152].
[32]Ibid [155]-[157].
Finally, Member Wentworth expressed her concerns about Mr Wong’s evidence and moved on to state her ultimate conclusion reached on the basis of all the evidence.[33]
[33]Ibid [158]-[170].
Mr Wong has failed to satisfy me that he has a real argument that there was sufficient doubt about the question raised by proposed ground 5 to justify the grant of leave.
Proposed ground of appeal 7 and question 11 – Did the Tribunal err by failing to consider under s 2.4.4(2) whether the circumstances warranted a finding that Mr Wong was fit and proper?
Counsel for Mr Wong argues that the tribunal was invited to have regard to the ‘whole position’,[34] citing A Solicitor v Council of NSW Law Society[35] where the High Court referred to the need to consider the facts and circumstances of the case where a practitioner appeals from an order removing them from the roll of practitioners.
[34]See Jonathon Wong, ‘Outline of the Submission of the Applicant’, Submission in Wong v Law Institute of Victoria Ltd (Legal Practice) [2013] VCAT 1178 (10 July 2013), 17 May 2013, [1.12] (exhibit ‘HH2’ to the affidavit of Helen Hartsias sworn on 17 September 2013).
[35](2004) 216 CLR 253, [18] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).
In my view, there is no real or significant argument for Mr Wong’s claim that the Tribunal failed in this regard. I have just referred to the detailed and comprehensive reasons given for Member Wentworth’s decision in which she clearly considers all the circumstances before stating in her final paragraph [170] that she has indeed made her decision that Mr Wong was not a fit and proper person to hold a practising certificate in that way.
Proposed ground of appeal 4 and question 6 – Did the Tribunal err by making orders under Part 4.4 of the Legal Profession Act?
Counsel for Mr Wong argues that the Tribunal erred in making what he described as an internally inconsistent order. The inconsistent orders were the refusal of his application for renewal on the basis that he was not a fit and proper person to hold a practising certificate and that he not be granted one before a certain date with an attached condition that he undertake education in the meantime. He concedes, however, that s 2.4.29 of the Legal Profession Act permits the Board to order that a person applying for renewal of a practising certificate may not apply for a grant of a certificate for a period ending before or (as was the case with Mr Wong) at the end of the current financial year. It is common ground that the Tribunal had all the powers of the Board (and the LIV as its delegate) on the review by virtue of s 2.4.37(3). In so far as the proposed ground is based upon the argument that the Tribunal lacked the power to make the order that Mr Wong not be granted a practising certificate before 1 July 2014, it has no substance and leave should be refused.
Counsel for Mr Wong seeks too to characterise the orders preventing Mr Wong from being granted a certificate and requiring him to complete training in the area of ethics and responsibility as effectively operating as punishment which might have been appropriate in the disciplinary provisions under Part 4. Counsel submits that they showed that the Tribunal had confused its function in relation to the Part 2 application with that in disciplinary proceedings under Part 4 like the Tribunal whose decision was the subject of a successful appeal in Delahunty v Law Institute of Victoria.[36] The orders made and principles applied by the Tribunal in Delahunty were different from those made by and applied by the Tribunal here.
[36][2013] VSC 157.
As counsel for the LIV points out, Hollingworth J did note that most of the 18 orders in ss 4.4.17 and 4.4.19 of Part 4 which the Tribunal had power to make in a review under s 2.4.37 might be equally appropriate in practising certificate and disciplinary proceedings.[37] I agree with the LIV’s submission that the condition that Mr Wong undergo training is not punitive in nature, requiring him to address his lack of insight into his professional obligations and responsibilities.
[37]Ibid [108].
The purposes of Part 2 would only be advanced by having Mr Wong’s skills in those important areas increased before he was to be allowed to engage in legal practice again. The protection of the public interest in the proper administration of justice by ensuring that those carrying out legal work are properly qualified and entitled to do so is the focus of Part 2. Mr Wong’s argument that s 2.4.37 should be read down so as to remove the power to attach such an educational condition otherwise contemplated under s 4.4.19 (c) and that the Tribunal erred by adding that condition lacks force and does not justify leave to appeal on proposed ground 4.
Conclusion
Leave to appeal should be refused and the application dismissed.
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