In 2014, the practitioner – who will not be named pending the outcome – went on record for a class action brought on behalf of 16,000 members. He took over from a firm that was found to have had a conflict of interest when the court discovered that its owner was also jointly running the funder of the class action.

Similarly, a QC who was retained to bring the class action was restrained from acting because his wife was also a joint member of the funder. Subsequently, the QC and another practitioner involved in the conflict was removed from the roll of persons admitted to the legal profession. The same would have applied to the first firm’s owner, but he died prior to the settlement of the class action proceedings.

While the judge considering the class action did not make any findings about the practitioner now before VCAT, he did make “scathing comments”. This included that the practitioner had acted in “gross dereliction of his duty to the court” and, by being “complicit in the charade”, he had “corrupted the administration of justice”.

Specifically, it was alleged that those found to have a conflict of interest with the funder had continued to control the proceedings through the practitioner.

When the practitioner applied for a practising certificate in 2019, he informed the Legal Services Board that there were “allegations of dishonesty, misleading conduct and unsatisfactory professional conduct and misconduct”, which were the subject of an ongoing hearing. As no immediate decision was made in respect of his application to renew, the practitioner was entitled to continue to practise.

However, in 2022, when the practitioner sought to renew his practising certificate again, the board informed him a preliminary decision had been reached that he was not a “fit and proper person” and should be restricted from applying for a practising certificate until 2026. The practitioner was permitted to make a submission before a final decision was made as to whether to refuse his application to practise.

After some communications, the practitioner sent an application to the board that exercised his rights to apply for a review of the decision. This application was rejected by an acting registrar of VCAT last month and, later that same day, the board informed the practitioner that a final decision had been reached.

VIEW ALL

The practitioner requested a stay on the decision until a determination could be made by VCAT. Among many of the contested issues, the practitioner has argued that no official disciplinary findings were made against him at the same time the other legal representatives were struck from the roll of practitioners. Any perceived findings were about the “scathing” comments only and nothing else.

In addition, setting aside the question of whether the practitioner is a fit and proper person, the validity of the board’s final decision was flagged as an issue. Under the Uniform Law, the board is precluded from making a decision on a person’s application for a practising certificate after the expiry of a 90-day period unless it is satisfied that no appeal or application for review has been made.

In VCAT’s view, the making of the final decision suggests that – notwithstanding the language used by the justice criticising the practitioner’s conduct – there are serious questions to be tried as to the proper characterisation of the practitioner’s conduct and whether the tribunal can and should exercise the discretion to refuse his practising certificate in light of the application in proceedings.

A representative for the board submitted that, in the present case, there was a risk of harm to both clients and the administration of justice more broadly in allowing the practitioner to remain in practice given the comments made about him.

However, VCAT was not satisfied that this warranted refusing the stay, given that the board has been on notice of this potential misconduct since 2019 but the practitioner has continued to practise for two-and-a-half years without causing harm to clients.

Further, with both the show cause hearing and the review proceeding hanging over his head, the tribunal “can be comforted in the knowledge that the public interest in the meantime will be catered for” as the practitioner will “have the strongest possible motives to refrain from anything that might be inappropriate”.

More to come.