CHINESE BIGOTRY FOR A LAWYER IN WA: THE LAW FOR REMOVAL OF A LAWYER IS ＡＰＰＬＩＥＤ ＩＮ ＴＨＥ ＳＴＡＴＥ ＯＦ ＶＩＣＴＯＲＩＡ ＢＵＴ ＮＥＶＥＲ APPLIED IN WA

AT MELBOURNE PRACTICE COURT S CI 2014 03989 In the matter of the Legal Profession Act 2004 (Vic) BETWEEN LEGAL SERVICES COMMISSIONER Plaintiff v NICHOLAS TELEHUS Defendant --- JUDGE: Ferguson JA WHERE HELD: Melbourne DATE OF HEARING: 15 September 2014 DATE OF JUDGMENT: 15 September 2014 DATE OF REASONS 29 September 2014 CASE MAY BE CITED AS: Legal Services Commissioner v Telehus MEDIUM NEUTRAL CITATION: [2014] VSC 462 --- LEGAL PRACTITIONERS — Roll of practitioners — Removal of name — Defendant misappropriated trust funds, represented that he held a practising certificate when he did not, failed to lodge tax and GST returns and breached court order that he file tax returns, made false declarations in support of application for renewal of practising certificate — No involvement by Defendant in disciplinary process or hearing to remove name from roll — No suggestion that Defendant had taken steps towards rehabilitation — Defendant not fit and proper person to practise law. --- APPEARANCES: Counsel Solicitors For the Plaintiff Mr P J Matthews Maria Smith, solicitor to the Legal Services Commissioner For the Defendant No Appearance TABLE OF CONTENTS Introduction......................................................................................................................................... 1 Is Mr Telehus a fit and proper person to remain on the roll of legal practitioners?............. 2 Conclusion........................................................................................................................................... 5 HER HONOUR: Introduction The Legal Services Commissioner applied for an order that the name of Nicholas Telehus be removed from the Court’s roll of practitioners. I made an order to that effect and said that I would deliver written reasons for doing so at a later date. These are those reasons. The Victorian Civil and Administrative Tribunal (‘VCAT’) recommended that Mr Telehus’ name be removed from the roll.[1] It did so in the context of having found Mr Telehus guilty of 27 charges of professional misconduct.[2] Among other things, VCAT ordered that Mr Telehus not be granted a practising certificate before April 2023. In summary, VCAT found that Mr Telehus: [1] Legal Profession Act 2004 (Vic) s 4.4.17(a). [2] Legal Services Commissioner v Telehus (Legal Practice) [2013] VCAT 2185 (6 December 2013) (Senior Member Smithers); Legal Services Commissioner v Telehus (Legal Practice) [2014] VCAT 24 (14 January 2014) (Senior Member Smithers). (a) failed to pass on approximately $35,000 he received on behalf of a client and instead spent that money for his own purposes (although he did subsequently repay $16,000 of the amount which he took); (b) failed to provide a bill to that client and to explain the basis upon which he claimed approximately $18,000 in fees; (c) failed to pass on approximately $1,400 to another client; (d) failed to deposit that amount into the trust account which he operated, thus creating a deficiency in the trust account; (d) failed to provide a trust account statement to his client; (e) failed to take action in the interests of the client in that he did not provide further information requested by a trustee in bankruptcy in respect of a proof of debt lodged on behalf of the client; (f) claimed that he was entitled to practise as a lawyer when he did not hold (and for three years had not held) a practising certificate and was not entitled to practise; (g) failed to lodge nine income tax returns between 1997 and 2005; (h) failed to comply with a subsequent court order that he file those returns; (i) failed to lodge 11 GST returns between December 2005 and June 2006; (j) made three false declarations (in 2007, 2009 and 2011) in applications for renewal or the issue of practising certificates by failing to disclose in the first two declarations that he had been found guilty of tax offences and stating in the third application that at the time of pleading guilty he had lodged the outstanding tax returns (when he had not); and (k) failed to respond to requests from the Commissioner for information sought under the Legal Profession Act.[3] [3] Section 4.4.11. Mr Telehus did not participate in the hearing of the charges. Moreover, he did not take up the opportunity afforded to him to make submissions and lead evidence before VCAT determined what sanctions should apply. Similarly, he did not appear at the hearing of this application although the documents were served on him. Is Mr Telehus a fit and proper person to remain on the roll of legal practitioners? The Commissioner made the application for removal from the roll seeking orders in the exercise of the inherent jurisdiction of the Court.[4] [4] A statutory power of removal is given by s 2.4.42(5) of the Legal Profession Act. As to the distinction between that statutory power and the exercise of the inherent jurisdiction of the Court, see Legal Services Commissioner v Rushford [2012] VSC 632 [5]–[7]. The question is whether, at the time of the hearing and based on the evidence before the Court, Mr Telehus was a fit and proper person to remain on the roll.[5] This is to be determined on the balance of probabilities, taking into account (amongst other things) the gravity of the matters alleged.[6] [5] A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253. [6] Evidence Act 2008 (Vic) s 140(2)(c). Fitness for office involves three things — honesty, knowledge and ability.[7] In this case, no more need be said by way of explanation of the test to be applied. For here, I am satisfied that Mr Telehus has behaved dishonestly over a significant period and there is nothing to suggest that he will curb his misconduct in the future. I take into account that the effect of the order removing his name from the roll may be disastrous for him. Nevertheless, that consideration is heavily outweighed by other matters, including the need to protect the public, ‘the legal profession , the courts, the justice system and community confidence in that system’.[8] The full details of Mr Telehus’ misconduct are set out in the reasons for decision of the VCAT Senior Member.[9] I will not repeat them in these reasons, but will highlight particular aspects of Mr Telehus’ misconduct to demonstrate why I have formed the view that he is not a fit and proper person to remain on the roll. [7] Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127, 156; Legal Services Board v McGrath (2010) 29 VR 325 [12]–[13]. [8] Legal Services Board v McGrath (2010) 29 VR 325, [10]. [9] Legal Services Commissioner v Telehus (Legal Practice) [2013] VCAT 2185 (6 December 2013) (Senior Member Smithers); Legal Services Commissioner v Telehus (Legal Practice) [2014] VCAT 24 (14 January 2014) (Senior Member Smithers). Mr Telehus behaved dishonestly in misappropriating his clients’ moneys. He used those funds for his own purposes. The first misappropriation of approximately $1,400 occurred in 2005. The moneys were not deposited into the trust account that he operated. The second misappropriation of approximately $35,000 occurred in September 2008. Mr Telehus did repay $16,000 in April 2013, but he has never explained why he misappropriated the funds in the first place nor why he has not repaid the balance of the amount wrongly taken. Misappropriation of trust funds is a most serious matter. It is essential that future clients are protected from those who have breached their trust obligations and who have not shown that they have taken steps towards rehabilitation. Mr Telehus made three false declarations in support of his applications for practising certificates — the first in 2007, the second in 2009 and the last in 2011. Again, these are very serious matters. In 2007, Mr Telehus applied to renew his practising certificate. His application included a statutory declaration that the information he provided was true and correct. He stated in the application that he had not been found guilty of a tax offence. That was a false statement. Only three weeks earlier he had been found guilty in the Magistrates’ Court of nine income tax offences and 11 GST offences. Mr Telehus did not hold a practising certificate from 1 June 2008. In January 2009, he applied for a new practising certificate. He stated in his application that he had not been found guilty of a tax offence. Again, this was a false statement. In addition to the offences in respect of which he had been found guilty earlier, the month before he made the declaration, Mr Telehus had been found guilty of an additional 17 breaches of the Taxation Administration Act 1953 (Cth). Mr Telehus applied for a practising certificate again in March 2011. This time he declared that he had been found guilty of a tax offence for failing to lodge tax returns between 2005 and 2007. He stated that at the time he pleaded guilty, he had lodged returns which showed an operating loss. The statement was false in respect of his 2005 return. He was ordered to file that return and failed to do so. This resulted in a conviction in 2008. In addition, there are the other matters that I have summarised above — failure to comply with tax obligations over a nine‑year period, court orders and statutory information requests from the Commissioner. On the evidence before me, Mr Telehus has taken no steps to redress his conduct nor do I have any confidence that he would alter his ways in the future. He has taken no part in the disciplinary process. As I have said, he failed to attend the hearing on this application. Conclusion It follows from what I have said that I was satisfied that Mr Telehus is not a fit and proper person to remain on the roll. On the day of hearing, an order was made that his name be removed from the roll of persons admitted to the legal profession kept by the Court. Article source: Supreme Court of Victoria Citation report Full report: View this article in the Jade Citator Citations: [2014] VSC 462 Add a citation Export and alerts: Print/Export · Alert: when this document is cited · Alert: list of authorities Visualisations: Similarity · HotSpot · More ? Citation counts: Show: Cases citing this decision No matching results found Cases cited by this decision Name Court Date Citations Legal Services Commissioner v Telehus (Legal Practice) [2014] VCAT 24 Victorian Civil and Administrative Tribunal 2014 2 citations Legal Services Commissioner v Telehus (Legal Practice) [2013] VCAT 2185 Victorian Civil and Administrative Tribunal 2013 2 citations Legal Services Commissioner v Rushford [2012] VSC 632 Supreme Court of Victoria 19 Dec 2012 1 citation: Para 5-7 Legal Services Board v Francis McGrath [2010] VSC 266; 29 VR 325 Supreme Court of Victoria 16 Jun 2010 2 citations: Para 10, 12-13 A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253 High Court of Australia 03 Feb 2004 1 citation Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; 93 CLR 127 High Court of Australia 08 Jun 1955 1 citation: Page 156 Legislation cited by this decision Name Citations Evidence Act 2008 (Vic) 1 citation: Section 140(2)(c) Legal Profession Act 2004 (Vic) 2 citations: Section 4.4.17(a) Taxation Administration Act 1953 (Cth) 1 citation

COSTS AGAINST DISCIPLINARY BODIES

The Australian Professional Liability Blog NZCA stomps on attempt to limit costs against disciplinary bodies Posted: 07 Sep 2014 05:11 PM PDT In Roberts v A Professional Committee of the Nursing Council of New Zealand [2014] NZCA 141 a nurse had pleaded guilty to having sex with a vulnerable patient. He had been suspended from nursing for three years. The High Court upheld his appeal and reduced his period of suspension to 18 months, precisely as he had requested. It dismissed the cross-appeal, which contended that he should have been deregistered. He sought costs. He got costs of the cross-appeal, fixed at 25% of the costs of the appeal because it had been doomed to fail and should never have been brought. But he failed in his claim for costs of his own appeal though he had obtained in it precisely what he had sought. Why? Because there were no ‘compelling reasons’ justifying such an order. The High Court noted that unlike disciplinary cases against lawyers, where first instance decision makers were empowered to make orders for and against the legal regulator, costs orders could be made only in favour of the nurses’ disciplinarian. The first-instance immunity to costs of nurses, and the important public function of the maintenance of standards in the provision of healthcare caused the High Court to carve out of quite a prescriptive costs regime in the High Court rules, one of the policies of which is apparently to make costs decisions predictable, a ‘compelling reasons’ threshold. So he did not get costs of his own appeal. He appealed again, on costs. The Court of Appeal allowed his appeal, and found there was no ‘compelling reasons’ threshold to be overcome before costs could be awarded against disciplinary regulators. The judges unanimously said: ‘[27] That is not to say we consider costs should always follow the event in these sorts of cases. We accept (as indeed did [the nurse's counsel]) that the fact professional conduct committees are performing a public function and have an immunity at Tribunal level may properly be taken into account in determining whether costs may be awarded and if so in what amount. [28] Given that the fact conduct committees are performing a public function will be a factor in every appeal, it might be thought that taking this into account will for all intents and purposes produce exactly the same result as that proposed by the Judge’s compelling reason threshold. Taking the public function into account will effectively mean that “something else” in addition to success may sometimes be required before costs can be awarded to a successful applicant. Ultimately, however, it is a question of degree or emphasis. [29] In our view, the correct and more principled approach is simply that the usual presumption still applies but, at the discretion of the Judge, the presumption may be more easily displaced than usual on account of the public function of professional conduct committees. A successful appellant is not, however, required to satisfy a “compelling reason” threshold. [30] That this is not just a matter of semantics is demonstrated by the facts of this case. Counsel agreed that if we rejected the “compelling reason” threshold, then rather than remit the matter back to the High Court for reconsideration, we should decide Mr Roberts’ costs application ourselves. [31] We have done so and have concluded that costs to Mr Roberts should have been awarded on both the appeal and cross-appeal. In our assessment, in the circumstances of this case, the fact the Conduct Committee was performing a public function was not a matter of any particular significance. The appeal was a fairly routine appeal in which the appellant succeeded and in fact obtained the precise reduction in sentence that he had sought in his notice of appeal.’ Cases on costs in disciplinary cases in NZ cited by the judgment include: Director of Proceedings v Medical Practitioners Disciplinary Tribunal [2003] NZAR 250 (HC). F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 (CA), esp at [88]; Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [16]–[17]; Patel v Complaints Assessment Committee HC Auckland CIV-2007-404-1818, 31 October 2007; MacDonald v Professional Conduct Committee HC Auckland CIV-2009-404-1516, 10 July 2009; ABC v Complaints Assessment Committee [2012] NZHC 1901, [2012] NZAR 856; and Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [13].