Tribunal refuses to stay application on cancellation of practising certificate

In Teffaha v Victorian Legal Services Board (Legal Practice) [2021] VCAT 590 the Victorian Civil and Administrative Tribunal refused a sole practitioner’s application for a stay of the decision by the Victorian Legal Services Board (the board) to cancel her practising certificate.

On 19 March 2021, the applicant was notified by the board that it was considering cancelling her practising certificate on the basis that she was unable to satisfy the inherent requirements of a practitioner.

The applicant was invited to respond to the board as to why cancellation should not occur, however she refused to provide the information and documents sought by the board. The applicant alleged the board had engaged in “sham and wilful attempts to sabotage her legal practice”,¹ demanded it withdraw the notice, and threatened proceedings against the board, as well as individual employees.

The Legal Services Commissioner subsequently decided to cancel the applicant’s 2020-21 practising certificate as she held a reasonable belief that the applicant was unable to fulfil the inherent requirements of an Australian legal practitioner. The commissioner further notified the applicant that, in order to protect the public, as well as the reputation of the profession and the administration of justice, the applicant could not apply for a practising certificate until 1 April 2022 (the cancellation decisions).

Issues

The applicant applied to the tribunal for a stay of the cancellation decisions, to continue legal practice pending the hearing of her appeal against the cancellation decisions.

In reaching its decision, the tribunal noted it would have regard to the following matters:

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• whether the failure to grant a stay would render the application nugatory
• whether there was a serious question to be tried on review
• whether it was in the community interest to grant a stay, and
• how long it would be before the application for review could be heard.

Issues considered

The tribunal held that the protection of the public was a significant consideration in granting a stay of a decision to cancel a practising certificate, referring to several decisions, including the following interrelated public interest principles articulated in NSW Bar Association v Cummins:²

1. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers.
2. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues.
3. The judiciary must have confidence in those who appear before the courts.
4. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice…

Inherent requirements of an Australian legal practitioner

The tribunal observed that the Legal Practice Uniform Law (Vic.) does not define the inherent requirements of an Australian legal practitioner. The board and the commissioner relied on the principles set out by Davies J in MN v The Council of the Law Society of New South Wales.³

“[T]he inherent requirements for a legal practitioner must include…

a. the ability to perform the day-to-day tasks associated with providing legal services, the ability to communicate in a professional manner with the courts, law-enforcement agencies and other legal practitioners
b. the ability to discharge the legal practitioner’s tortious and fiduciary duties to his or her clients, whether arising under their retainer, in tort or in equity
c. the ability to discharge the legal practitioner’s duties to the Court, including:
i. the duty to be honest and courteous in all dealings in the course of legal practice⁴
ii. the duty not to engage in conduct, in the course of practice or otherwise, which is likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice, or bring the profession into disrepute⁵
iii. the duty not to knowingly or recklessly mislead the court⁶
iv. the duty not to allege any matter of fact in any court document settled by the solicitor, or any submission during any hearing, unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so⁷
v. the duty not to communicate in the opponent’s absence with the court concerning any matter of substance in connection with the current proceedings.⁸

To those matters there would need to be added, an obligation to obey the law and to comply with court orders.”⁹

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The tribunal considered some examples of the applicant’s conduct relied on by the board in determining she did not fulfil the inherent requirements of a legal practitioner:

• The applicant acted for the mother in family court proceedings when there was a conflict of interest, and breached a written undertaking not to communicate with the father, which resulted in the applicant becoming a witness in the proceedings. The applicant was ultimately restrained from acting.
• The applicant wrote inappropriate letters to the Chief Judge of the Family Court, the Chief Magistrate of Victoria and the Deputy Chief Commissioner of Victoria Police complaining amongst other things, about the conduct of Family Court judges, the Chief Magistrate and the deputy commissioner.
• The applicant made multiple public statements online and in a speech at a ‘Freedom Rally’, describing the legal profession and judges as corrupt and alleging that Family Court judges and independent children’s lawyers “enabled and assisted perpetrators of abuse”.
• In her ‘Freedom Rally’ speech, the applicant also induced the public to breach the law, by encouraging or condoning violence, and encouraging the public not to abide by COVID-19 public health directives in relation to mask-wearing, social distancing and lockdown restrictions.
• The applicant’s practice bookkeeper made a statement to the commissioner’s senior trust investigator that trust money had been paid into a non-trust account, and non-trust monies paid into trust.

The tribunal was satisfied the board had “established a rational link between the conduct it identified and the conclusions it drew”.¹⁰ It was noted that a stay hearing was not the forum to litigate the merits of the decisions, or to determine the lawfulness or correctness of the board’s decisions.

Many interested members of the public attended the virtual stay hearing – there were more than 218 separate Zoom logins. Several non-parties requested to address the tribunal in support of the applicant, however they were refused as ultimately no evidence was sought to be adduced from them.

The tribunal noted the applicant’s primary submission in support of a stay related to her desire to pursue a national class action representing thousands of members “dealing with the disproportionate response to the COVID pandemic”, and a number of Federal and High Court actions against Family Court judges and magistrates “allegedly involved in alleged child sexual abuse cover-ups and family violence cover-ups”.

With respect to:

• Whether the application for review would be rendered nugatory if a stay was not granted, the tribunal held that “whether the applicant’s beliefs, and conduct in expressing those beliefs, prevents her from upholding the law, acting in the best interests of her clients, or maintaining public confidence in the administration of justice is at the heart of the decision to cancel her certificate. That remains the issue, whether a stay is granted or not.”¹¹
• Whether there was a serious question to be tried on appeal, the applicant had not established “such a likelihood of success as to weigh heavily in favour of granting a stay”.¹² The tribunal was not satisfied that there was a sound evidentiary basis to support the applicant’s conclusions. The applicant had “not demonstrated she is able, or willing, to distinguish between her role as a lawyer holding a practising certificate, and as an activist and campaigner in relation to what she characterises as corruption and maladministration in the Family Court, and elsewhere”.¹³
• Whether it was in the community interest to grant a stay, “the public interest in holders of practising certificates upholding the law, maintaining public confidence in the administration of justice, and of protecting the best interests of their clients” weighed heavily against the grant of a stay.¹⁴ With respect to the private interests of the applicant and her clients, the tribunal found that the applicant was not the “only legal practitioner capable of advising on the merits of, or having the carriage of the proposed actions, or of representing the class members. If the cancellation were stayed, the manager, appointed by a separate process which has not been appealed, remains in control of [her law practice]”.
• The length of time before the application for review could be heard, the tribunal did not consider that the likely delay in hearing the substantive review was a factor which weighed heavily in the applicant’s favour. The public interest in refusing a stay far outweighed the arguments advanced by the applicant.

The application for a stay was refused.

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Footnotes
¹ Teffaha v Victorian Legal Services Board (Legal Practice) [2021] VCAT 590, 4 (Teffaha).
² NSW Bar Association v Cummins [2001] 52 NSWCA 95, [20] (Spigelman J).
³ MN (MN Legal and Management Consultants Pty Ltd) v The Council of the Law Society of New South Wales; Michail v The Council of the Law Society of New South Wales [2018] NSWSC 1410.
⁴ Citing Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 (NSW) r4.1.2.
⁵ Ibid r5.1.
⁶ Ibid r19.1.
⁷ Ibid r21.3.
⁸ Ibid r22.5.
⁹ Above, n3 [47]-[48].
¹⁰ Teffaha [55].
¹¹ Ibid [72].
¹² Ibid [73].
¹³ Ibid [76].
¹⁴ Ibid [77].