In PJQ v Law Institute of Victoria Ltd [2005] VSCA 326, the President of the Court of Appeal laid down the law in relation to applications for stays pending appeals of suspension orders meted out by VCAT (then the Full Legal Profession Tribunal):
‘The principles governing stay applications in proceedings of this kind were clearly elucidated by the former President, Winneke, P. (with whom Chernov, J.A. agreed) in Woods v. The Legal Ombudsman:
‘Legal practitioners who seek a stay of orders made by their disciplinary tribunal while an appeal is pending or for any other reason have the onus of persuading the Court that such a stay should be granted. There are a number of balancing factors which will bear upon the Court’s decision as to whether such an indulgence should be afforded. The first is that disciplinary proceedings against those who hold themselves out to the public as fit to practise, in this case the solicitors, are sui generis. The discipline imposed, while punitive in its application to the practitioners involved, is very largely protective of the public interest. Other matters which this Court will take into account will include the seriousness of the conduct which has led to the tribunal’s decision and the prospects which the instituted appeal has of succeeding.’
The Court ordered a stay because:
- ‘unless a stay is granted a successful appeal will effectively be rendered nugatory. The appeal is unlikely to be heard before mid-2006 at the earliest, by which time half of the suspension period will have been served. Moreover, by that time it would very likely be impossible to restore Mr Quinn to his former position if he were to succeed in the appeal. This consideration would carry less weight if it appeared that the prospect of success on the appeal were slight.’
- there was an unexplained inconsistency between the Institute’s submission on appeal that suspension was necessary for the protection of the public and its failure to submit, at the hearing below, that suspension was an appropriate outcome; and
- there was a further inconsistency between that submission on appeal and the Institute’s failure since March 2005 (when a court document made clear that it knew of the facts which ultimately gave rise to the misconduct convictions) to exercise its power to cancel the solicitor’s practising certificate pursuant to its power to do so where necessary for the protection of the public (s.38(6), Legal Practice Act, 1996).
