The Supreme Court of Victoria has granted the Legal Services Commissioner’s application for leave to appeal from an order made by the Victorian Civil and Administrative Tribunal which imposed sanctions on a barrister for various tax offences over a 10-year period (including the non-payment of tax) which the Commissioner considered inadequate as they only involved a reprimand and did not include any suspension to practice. As a result, the Court remitted the matter to the Tribunal to be reheard according to the law.
A key consideration taken into account by the Court was whether the [Legal Services?] Commissioner’s 5 year delay in pursuing the matter was a bar to granting leave. After considering the matter closely (including the barrister’s age, that his tax affairs were now in order and that suspension at this stage could spell the end of his career), the Court concluded that given the importance of the protective jurisdiction of the Tribunal, the reputation of the legal profession, as well as the gravity of the barrister’s conduct in breaking the law over a 10-year period, the delay ought not to preclude the grant of leave to appeal. However, the Court emphasised that the delay may be a mitigating factor in any decision to be made by the Tribunal.
In addition, the Court found that the Commissioner’s other grounds for leave to appeal were made out including that “theft from the revenue” was an equally serious offence as defrauding a client, the need to protect the public, and the need to provide a proper deterrence.
(Legal Services Commissioner v Turner [2012] VSC 394, Supreme Court of Victoria, Emerton J, 5 September 2012.)
[LTN 176, 11/9]