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A criminal lawyer accused of breaching anti-money laundering legislation across dozens of cash transactions has convinced a tribunal to allow him to rely on penalty privilege as he attempts to overturn a 2023 decision to cancel his practising certificate.
The Victorian Civil and Administrative Tribunal decided a penalty privilege could apply to Nick Marcevski’s application to review a decision of the Legal Services Board to cancel his practising certificate and prohibit him from applying for a new one until late 2028.
The board alleged Marcevski failed to comply with reporting obligations relating to significant cash transactions in excess of $10,000 between August 2016 and April 2023 and for transfers of between $9,000 and $9,900 between November 2018 and May 2022.
In November 2023, Marcevski attempted to stay the decision but had this dismissed on the grounds of community or public interest.
Under Towie v Medical Practitioners Board of Victoria, it was found that it may “ordinarily be appropriate” if a party is given directions to provide an outline or argument, or other written material, “before the case advanced against the applicant has been completed”.
The board argued the Towie principles, or penalty privilege, could not apply because Marcevski had already “put forward his petition”, had gone on oath by filing and serving an affidavit for the stay of the hearing, and flagged his intention to go into the witness box.
In reply, Marcevski said the requirement to state his position before the board did not have the effect of cancelling out the privilege.
While he did go into evidence on the stay application, Marcevski said he was required to have those papers before the tribunal. Marcevski added he did not, by his affidavit, outline his case.
“The applicant stated that he has not yet decided to give evidence in relation to whatever may be the board’s allegations in this proceeding or whether he will otherwise present a positive case.
“The applicant has not sought to set out in detail his case, as he does not yet know what the board’s case will be,” the tribunal said.
In ruling in his favour, the tribunal clarified that Marcevski remains entitled not to be required to provide further material about his case prior to the board losing its case, “save for an outline of argument in broad terms as to the issues in dispute”.
Marcevski attempted to recover his practising certificate in mid-2024 on an application for leave to appeal, but Justice Michelle Quigley was not satisfied it had “a real prospect of success”.
The new case is Marcevski v Victorian Legal Services Board (Legal Practice) [2025] VCAT 369 (30 April 2025).
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
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