Removal from Roll of Legal Practitioners due to Dishonest Conduct

Victorian Legal Services Commissioner v Tan [2021] VSC 692 (26 October 2021)

Mr Tan engaged in three episodes of dishonest conduct engaged in by him between August 2015 and May 2017.  VCAT referred Mr Tan to the Court with the recommendation that his name be struck off the roll of persons admitted to the legal profession kept by the Court.  The Court, in determining whether or not Mr Tan is a fit and proper person to practice law, assessed the submissions made in relation to the transactions involved from August 2015 and May 2017.

Facts:

Ke Yuan Tan was admitted to legal practice on 13 August 2014.  He held a practising certificate which permitted him to work as an employee of a law practice from 2 October 2014 until 19 January 2017.  Over that time he worked at the law practice of Wayne Wong & Associates.  On 25 May 2018, the Victorian Legal Services Commissioner (the Commissioner) brought a disciplinary proceeding against Mr Tan in the Victorian Civil and Administrative Tribunal (VCAT). 

VCAT referred Mr Tan to the Court with the recommendation that his name be struck off the roll of persons admitted to the legal profession kept by the Court.  The Commissioner filed an originating motion seeking that relief on 28 May 2020.  The decision to order the removal of Mr Tan from the roll follows from the consideration of three episodes of dishonest conduct engaged in by him between August 2015 and May 2017.  In April 2015, Wayne Wong & Associates commenced acting for a husband and wife in relation to the purchase by them of a Chinese restaurant business.  The transaction involved the transfer of a liquor licence. 

On 10 August 2015, Mr Tan emailed the vendor’s solicitor attaching a PDF of an email dated 6 August 2015 (the 6 August email) which he stated he had received from the Victorian Commission for Gambling and Liquor Regulation (the VCGLR).  He had created the 6 August email ‘in order to secure settlement’ and to cover his mistake in not submitting the liquor licence transfer form as soon as reasonably practicable.  The second episode involved acting for a company in relation to the purchase of a business known as ‘Wine Window’ wherein Mr Tan created a document purporting to be a liquor licence in the name of the purchaser of the Wine Window business.  Mr Tan provided a copy of this false liquor licence to his client on 29 July 2016.  He did so knowing that the VCGLR had not issued a valid liquor licence and that the document he created and provided was fraudulent.

The third episode involved dealing with Robert Liu in relation to a claim for compensation sought to be made by Mr Liu from the Victorian Property Fund in Mr Tan's capacity as a volunteer paralegal.  Mr Tan dishonestly obtained for himself or another financial advantage from Wayne Wong & Associates, in the form of an electronic transfer of funds to Robert Liu, in the amount of $165,000, by deception, by submitting false and/or misleading information to the Westpac Banking Corporation Ltd and legal practitioner Wayne Wong of Wayne Wong & Associates

Issue:

Whether or not the Defendant is a  fit and proper person to practice law.

Applicable law:

Legal Profession Uniform Law Application Act 2014 s 23(1)(c) - provides that the Attorney General may, from time to time, appoint a person to act in the office of the NSW Commissioner during the illness or absence of the NSW Commissioner (or during a vacancy in the office of NSW Commissioner) and a person, while so acting, has all the functions of the NSW Commissioner.

Legal Services Board v McGrath [2010] VSC 266; (2010) 29 VR 325, [9] -  summarised the principles which govern an application for the removal of a legal practitioner’s name from the roll of practitioners.

Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 - where it was held that the expression “fit and proper person”'s very purpose is to give the widest scope for judgment and indeed for rejection.

Legal Services Commissioner v PFM [2014] VSC 341 - Elliott J distilled the relevant principles as to fitness and propriety.

Frugtniet v Board of Examiners [2002] VSC 140 - provided that the requirement for admission to practice law that the applicant be a fit and proper person, means that the applicant must have the personal qualities of character which are necessary to discharge the important and grave responsibilities of being a barrister and solicitor.

Stanoevski v Council of the Law Society of New South Wales [2008] NSWCA 93, [54] - an exercise of the court’s discretion to remove a practitioner from the roll will only be made when the court is satisfied at the time of the hearing that the practitioner in question is shown “not to be a fit and proper person to be a legal practitioner and will likely remain so for the indefinite future.

Prothonotary of the Supreme Court of New South Wales v Sukkar[2007] NSWCA 341, [9]–[16] - provides that the person or entity bringing such an application bears the onus of satisfying the court of the requisite degree of indefinite unfitness on the balance of probabilities.

 Analysis:

Central to Mr Tan’s misconduct in the Chinese restaurant transfer was the creation by him of a fake email from the VCGLR which falsely stated that the transfer of the relevant liquor licence had been conditionally approved. Then, in the Wine Window transfer, Mr Tan went so far as to forge a liquor licence which he caused his client to sign and which was placed on Wayne Wong & Associates file.  His client operated its business assuming that this document was what it purported to be. Finally, in the Rockbank transaction, Mr Tan’s dishonesty was not limited to the creation of false documents which he persisted in doing in creating the false email account, but extended to dishonestly taking $165,000 from his principal’s trust account. 

The three episodes to which the Court have referred demonstrate Mr Tan’s deceptions to be extensive and calculated. Secondly, the nature and extent of Mr Tan’s dishonesty has escalated from his actions in relation to the Chinese restaurant transfer to those he engaged in by the time of the Rockbank transaction. Thirdly, this escalation has occurred despite the Commissioner and then Victoria Police engaging with Mr Tan in relation to his misconduct from as early as November 2015. 

Conclusion:

The Court is satisfied that Mr Tan is not a fit and proper person to remain on the roll and that he will likely remain so for the indefinite future.