Suspensions which are not suspensions and orders which are not orders

VCAT’s latest decision to come to my attention, of Member Elizabeth Wentworth, involved another solicitor who did not lodge tax returns over an extended period. He was suspended from practice for 12 months, but the suspension was suspended provided he did not breach certain conditions in the three years after the orders.  If he does, then the Commissioner may apply for the suspension of the 12 month suspension to be lifted so it comes into operation. Member Wentworth decided to leave what exactly would happen in the case of a breach to the discretion of the any future Tribunal constituted to consider it rather than providing automatically for the suspension of the suspension to be lifted.  Legal Services Commissioner v GB [2015] VCAT 254 is interesting to me for six reasons:

1. The Tribunal reiterated the importance of delay as a mitigating factor in relation to penalty: ‘Delay is a mitigating factor which the Tribunal must take into account and which, in most cases, significantly reduces the penalty,’ citing the Court of Appeal’s decision in Stirling.

2. The Tribunal drew a distinction between ‘findings’ of professional misconduct, and ‘orders’ which were limited to the disposition.  This represents admirable care in the formulation of orders which is likely to minimise confusion about the time in which to appeal (since, subject to leave, s. 148 of the VCAT Act 1998 permits appeals on questions of law from orders, including ‘interim orders’) and the status of such findings for the purposes of litigation estoppels.

Often, the liability hearing and plea hearing in professional discipline cases are separate, and held weeks or months apart so that the time for appeal of a finding of professional misconduct (if it were truly an ‘order’ for the purposes of s. 148) would pre-date the receipt of the decision, especially if reserved, on the matters the subject of the plea hearing.

The Tribunal’s approach reflects the law.  The only ‘orders’ the Legal Profession Act 2004 contemplates VCAT making in a disciplinary prosecution are those described in s. 4.4.16, which are predicated on a ‘satisfaction’ that ‘the practitioner is guilty of unsatisfactory professional conduct or professional misconduct’.   In Victoria v Turner [2007] VSC 362 VCAT found, under a different but conceptually similar statute, that a document headed ‘order’ made by VCAT making findings that the State had discriminated against Ms Turner in one respect, dismissing the case in all other respects, and adjourning the hearing to determine the appropriate penalty.  The Chief Justice decided that the finding of discrimination was not an ‘order’ at all for the purposes of s. 148, but a ‘finding’ which is unappeasable, so that the application for leave to appeal was incompetent.  The State should have waited until the orders proper, which would have articulated the penalty (if any), before appealing.  The potential for documents which are not orders in the s. 148 sense but which are entitled ‘orders’ to create confusion is evident from the fact that a Master of the Supreme Court initially granted leave to appeal the finding of discrimination.

3. The Commissioner amended the charge mid-hearing, with the practitioner’s consent, to plead non-intentional misleading in the alternative to the original charge, which squarely alleged fraud, and there was then a contest about whether the misleading statement was intentional, which the practitioner prevailed in.  Nevertheless, because the practitioner pleaded guilty to a statutory form of professional misconduct regardless of the outcome of the contest, he was still found guilty of professional misconduct on the rolled-up charge which also carried other allegations of wrongdoing.

4. Though the practitioner was found guilty of s. 4.4.3(1)(b) professional misconduct (defined to mean ‘conduct … that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice’), no one argued and the Tribunal did not consider that he should not now be allowed to practise, strongly suggesting that the correct interpretation of the test for that kind of misconduct is to be assessed as at the time of the conduct and that a finding of that kind of misconduct is consistent with a recognition that the unfitness for practice has passed in the period between the conduct and the hearing (another advantage, from contrite practitioners’ point of view, of investigative and prosecutorial delay).

5. Though Member Wentworth seemed in effect to suggest that suspended suspensions of the kind ordered by the Court of Appeal in Stirling’s Case are conceptually problematic, observing that if suspension is necessary for the protection of the public it should ordinarily be imposed absolutely, she accepted the practitioner’s counsel’s ‘compelling submissions’ that it was the most appropriate sanction in this particular case, and the Commissioner himself proposed the ‘suspended suspension’ orders.

6. The Tribunal declined to make an order that the suspended suspension come into effect immediately upon one of the breaches of the conditions to which the the suspension of the suspension from practice was subject, saying:

  1. In addition, in my view, it is potentially problematic to bind a future Tribunal to a particular disposition. So much depends on the circumstances that may arise in the intervening period, including the circumstances of any breach of the relevant conditions.
  2. In the particular circumstances here, an order in similar terms to that in Stirling is appropriate, in my view, with one deviation from the orders drafted by Counsel for the Commissioner. The order as made, gives any future Tribunal the discretion as to whether or not to revoke the suspended order period, even if it is satisfied that there has been a material breach of the conditions.
  3. … 
  4. There will accordingly be a ‘head suspension period’ of 12 months, which shall be wholly suspended for three years (the suspended order period), reflecting the fact that [GB’s] conduct is less blameworthy than that of the practitioners referred to in the cases above. A number of conditions are imposed. If [GB] fails to comply with any of the specified conditions during the suspended order period of three years the Commissioner may make an application to the Tribunal to revoke the suspended order period. The orders also allow the Tribunal to impose a longer period than 12 months if it thinks appropriate.



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