Kyriackou v Law Institute of Victoria Limited

(2014) 45 VR 540; [2014] VSCA 322

Victorian Court of Appeal

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Interrogate

Catchwords

1. Legal Practitioners
2. › Lay associates
3. › Disqualification order
4. › Party to act or omission that may have resulted in charge if person were legal practitioner
5. › Misappropriation of trust funds
6. › Whether findings open on the evidence
7. › Legal Profession Act 2004 (Vic), ss 2.2.6(1)(b), (2), (3), (4), (5), 3.3.21
1. Legal Practitioners
2. › Disciplinary proceedings
3. › Penalty
4. › Indefinite disqualification of lay associate
5. › Whether manifestly excessive
6. › Relevance of failure to give evidence
7. › Specific and general deterrence
8. › Protection of the public
9. › Legal Profession Act 2004 (Vic), ss 2.2.6(2), 2.2.7, 2.2.8
1. Evidence
2. › Standard of proof
3. › Civil proceedings
4. › VCAT not bound by rules of evidence
5. › Whether Briginshaw principles apply to VCAT proceedings
6. › Principles as informing evidentiary logic rather than binding standard
7. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 98
8. › Evidence Act 2008 (Vic), s 140
1. Appeal
2. › Appeal on question of law from VCAT
3. › Defective notice of appeal
4. › Whether findings of fact open on the evidence
5. › Whether question of law properly raised
6. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148
7. › Legal Profession Act 2004 (Vic), s 2.2.6(5)

Quick Take

VCAT is not bound by s 140 of the Evidence Act 2008 or the Briginshaw principles because it is not bound by the rules of evidence under s 98 of the VCAT Act; however, those principles properly inform the Tribunal's approach to evidentiary logic when considering allegations of serious misconduct. In disciplinary proceedings against lay associates, failure to give evidence is relevant to penalty and may support an indefinite disqualification order. The power of indefinite disqualification under s 2.2.6(2) of the Legal Profession Act 2004 is specific to persons who are not Australian legal practitioners.