A barrister has had his appeal allowed by the Supreme Court of Victoria against a 2012 decision of the Victorian Civil and Administrative Tribunal (VCAT) which handed down a 3-year suspension of his practising certificate following a finding that he was guilty of professional misconduct within the meaning of s 4.4.3(1)(b) of the Legal Profession Act2004 (Vic) for engaging in conduct that justified a finding that he was not a fit and proper person to engage in legal practice.

The barrister admitted before the VCAT that he had failed to disclose on time income earned from 1 July 1996 to 30 June 2004, and that he had failed to make provision for and pay on time income tax on income earned from 1 July 1996 to 30 June 2005. He was charged with professional misconduct under the Act following, among other things, his conviction on 7 September 2004 of a tax offence for failing to lodge an income tax return for the financial year ended 30 June 2001, and for his failure to lodge BASs on time for the quarters 30 June 2006, 30 September 2006, 31 December 2006 and 31 March 2007. The VCAT suspended the barrister for 3 years. He appealed.

The Vic Supreme Court said that, without diminishing the significance of the barrister’s conduct, it was “not in the category of misconduct that brings directly into question the security of a client’s interests or his technical competence as a practitioner”. While the Court considered the barrister was not a fit and proper person to currently practice, it considered that his circumstances were such that his future practice should be governed for a time by conditions that should assist his rehabilitation. The Court allowed the barrister’s appeal and imposed a fresh penalty. The Court ordered that the barrister be suspended from practice for a period of 30 months, with 24 of those months being suspended for a period of 5 years. In imposing a new penalty, it imposed conditions on any practising certificate that may be given to the barrister after the term of his suspension is completed. Those conditions would apply for a period of 5 years.

(Stirling v Legal Services Commissioner [2013] VSCA 374, Supreme Court of Victoria, Warren CJ, Neave JA and Dixon AJA, 17 December 2013.)

[LTN 247, 20/12/13]

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