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Zarah wins

July 29th, 2008 · No Comments

Ms Garde-Wilson’s back in business. In fact she never went out of business, since following the non-renewal of her practising certificate, she held a deemed practising certificate pursuant to the Legal Profession Act, 2004, s. 2.4.5(3) pending her VCAT merits review application. The assertion that she had ceased to be a fit and proper person seems fundamentally to have been about her contempt of the Supreme Court of Victoria in refusing to answer questions on oath, and certain criminal charges which were pending against her. The criminal charges went away, and the Board obviously subsequently formed the view that the unusual circumstances of the contempt conviction were not such as to demonstrate her unfitness to engage in legal practice, and so gave her her practising certificate back. These things are determined at the date of a decision, and so the fact that the Board determined now that Ms Garde-Wilson was a fit and proper person does not necessarily suggest that its decision back then was wrong.

I suspect that Justice Bell commencing his decision in Garde-Wilson v Legal Services Board [2007] VSC 225:

‘The plaintiff, a young and intelligent solicitor, was working hard in a firm specialising in criminal law,’

must not have harmed her cause. So too Justice Harper’s reasons for not imposing any sentence on her upon finding her guilty of contempt of court, which began:

‘Zarah Garde-Wilson, you are a solicitor who, on the evidence available to me, is intelligent, hard working and determined to represent your clients to the best of your ability. These are valuable attributes in any legal practitioner. Another such attribute is that combination of learning, technical legal skills and common sense which, appropriately mixed, results in sound judgment. None of us get the combination exactly right all the time.’ (R v Garde-Wilson [2005] VSC 452)

The Age article alerted me to a Zarah decision I had missed, about the detail of which I will fill you in on soon. Here it is: Garde-Wilson v Legal Services Board [2008] VSCA 43. The Court of Appeal, led by Justice of Appeal Dodds-Streeton, overturned Justice Bell’s decision mentioned above, which had dismissed Ms Garde-Wilson’s application for judicial review of the Board’s decision to suspend her practising certificate. Justice Bell had said that Ms Garde-Wilson had a perfectly adequate alternative remedy in the merits review option in VCAT, and that is a good reason why judicial review should not be availed of. Not so, said the Court of Appeal.

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Tags: Criminal liability · Practising certificates · Professional regulation · regulators' duties