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Removal of Defendant from Roll of Legal Profession Sought by Commissioner

Victorian Legal Services Commissioner v Logan [2022] VSC 97 (28 February 2022)

An application was made by the Commissioner for the removal of the defendant's name from the Roll of persons admitted to the legal profession.  The defendant did not appear or take any step in this proceeding.  The Court, in making its orders, assessed the defendant's plea of guilty and failure to comply with orders. 

Facts:

The Commissioner applied pursuant to s 23(1)(c) of the Legal Profession Uniform Law, on the recommendation of the designated tribunal, for the name and other particulars of the defendant, NICHOLAS PATRICK LOGAN, to be removed from the Roll of persons admitted to the legal profession.  Ms Richardson is a senior investigator in the Discipline and Suitability Team of the Commissioner.  The defendant did not appear or take any step in this proceeding.  Initially, a process server was unable to effect service but he deposed to the efforts made to track the defendant down to effect service at a number of different residential and commercial premises.  

A second process server deposed that he ‘served’ the defendant on 23 December 2021 by handing the relevant documents to the defendant’s father, Mr Logan (first name withheld), a male person, apparently above the age of 16 years, at an address in Indented Head.  In these circumstances, service had not been strictly effected.  Service was perfected by the order of Efthim AsJ, made 14 February 2022, pursuant to r 6.11 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), that service of the documents was effected on 23 December 2021.

On 14 March 2018, VCAT handed down its penalty decision. Senior Member Butcher ordered that: the defendant is ineligible to apply for or be granted a new practising certificate before 1 May 2024; the defendant is to pay compensation in the sum of $32,863.86 to one of the complainants; and the defendant is referred to the Supreme Court of Victoria with a recommendation that his name be struck off the Roll of Practitioners.  

Issue:

Whether or not it is necessary to remove the defendant from the Roll.

Applicable law:

Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 - pursuant to which the Commissioner applied for the removal of NICHOLAS PATRICK LOGAN from the Roll of persons admitted to the legal profession. 

Bolitho v Banksia Securities (No 18) [2021] VSC 666 - set out the relevant principles for striking a practitioner from the Roll. 

Hughes & Vale Pty Ltd v NSW (No 2) [1955] HCA 28(1955) 93 CLR 127 - provides that to be fit and proper, a legal practitioner must be honest, independent, able to judge what ethical conduct is required of them, and then be capable of diligently discharging the responsibilities of their office. 

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 - provides that a legal practitioner must be ‘possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails. 

Victorian Legal Services Board v Gobbo [2020] VSC 692 - provides that whether a practitioner fails to meet these criteria is a fact-sensitive inquiry.

A Solicitor v Law Society (NSW) [2004] HCA 1(2004) 216 CLR 253 - provides that the court must also inquire into whether the practitioner has insight into, and fully appreciates, the gravity of his wrongdoing and has demonstrated effective rehabilitation. 

MN Legal and Management Consultants Pty Ltd v The Council of the Law Society of New South Wales [2018] NSWSC 1410 - Davies J identified the inherent requirements for assessing the fitness and propriety of a legal practitioner. 

Guss v The Law Institute of Victoria [2006] VSCA 88 - provides that it is difficult to overstate the importance in the administration of justice of the paramount duty of a legal practitioner not to mislead the court. 

Legal Services Commissioner v Logan (Legal Practice) [2014] VCAT 345 - VCAT Senior Member Butcher found the defendant guilty of misconduct at common law for sending a letter containing a threat which would reasonably be regarded as disgraceful or dishonourable. 

Victorian Legal Services Commissioner v Logan (Legal Practice) [2016] VCAT 544 - VCAT Senior Member Butcher found the defendant guilty of two charges of misconduct at common law for acting, issuing and maintaining proceedings without instructions and conducting litigation without seeking instructions or properly advising the client, and one charge of professional misconduct for allowing dishonest letters to be sent. 

Victorian Legal Services Commissioner v Logan (Legal Practice) [2016] VCAT 1193 - VCAT accepted an undertaking from the defendant as to the manner in which he would practice in the future and ordered that the defendant’s local practising certificate be suspended with effect from 1 September 2016 until 30 June 2017 and that he pay the Commissioner’s costs.

Victorian Legal Services Commissioner v Logan (Legal Practice) [2016] VCAT 1963 - VCAT Member Wentworth found the defendant guilty of two charges of professional misconduct and one charge of unsatisfactory professional conduct for making trust account payments to a repairer without notice to a third party factorer/financier. 

Victorian Legal Services Commissioner v Logan (Legal Practice) [2017] VCAT 189 - where it was held that in failing to act upon the opportunity extended to him in the form of the Undertaking and the leniency of the prior reprimands, the Respondent has demonstrated a flagrant disregard for the most basic obligations placed upon a solicitor towards his clients. 

Analysis:

Mr Logan has pleaded guilty to all charges. However, in doing so he stated that he did so in order to 'save costs'.  This indicates a lack of insight into and acceptance of the wrongfulness of his conduct and although it has shortened the proceedings for which credit is given, it deprives him of the full benefit/credit which might otherwise be given to a plea of guilty.  Mr Logan has at no time expressed any remorse or offered any apology for his conduct either to the Commissioner, the Tribunal or the complainants.  Mr Logan has not paid or offered any compensation to Mr Palmieri.  

Mr Logan has not co-operated with the Commissioner during the Commissioner's investigation of complaints and indeed has attempted to mislead the Commissioner.  The defendant’s failure to comply with orders of the Tribunal to pay costs ordered and, more significantly, to pay the compensation of $32,863.86 ordered on 14 March 2018 in favour of a complainant, is ongoing.  This, the Commissioner submitted, is indicative of a lack of respect for the orders and a lack of insight as to the seriousness of his conduct.

Conclusion:

The Court ordered that the name and other particulars of the defendant, NICHOLAS PATRICK LOGAN, be removed from the Roll of persons admitted to the legal profession kept by this Court on the application of the plaintiff, the Victorian Legal Services Commissioner (‘Commissioner’).  The defendant is to pay the Commissioner’s costs.

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