Giurina v McLeay [2024] VSCA 326 (20 December 2024)

Last Updated: 6 January 2025

SUPREME COURT OF VICTORIA COURT OF APPEAL

S EAPCI 2023 0095

ERMANNO GIURINA	Applicant
v
FIONA MCLEAY	First Respondent
and
THE COUNTY COURT OF VICTORIA	Second Respondent

---

JUDGES:	LYONS and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2024
DATE OF JUDGMENT:	20 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 326
JUDGMENT APPEALED FROM:	Giurina v McLeay [2023] VSC 397

---

ADMINISTRATIVE LAW – Appeal from judicial review – Applicant sought review of decision of County Court on appeal from Magistrates’ Court – Applicant convicted of breach of s 11(1) of Legal Profession Uniform Law by representing he was entitled to engage in legal practice when he was not a ‘qualified entity’ – Judicial review application dismissed – Whether judge erred in concluding s 11(1) created a strict liability offence – Whether judge erred by failing to find that County Court judge unreasonably concluded particulars of charge had been proved beyond reasonable doubt – Whether County Court judge erred by failing to grant relief in respect of County Court judge’s failure to consider applicant’s submission that he was a ‘qualified entity’ – Leave to appeal refused.

Legal Profession Uniform Law Application Act 2014, sch 1 ss 3, 6, 9, 10, 11 and 12.

He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523; Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536, applied; Law Society of New South Wales v Spring [2007] NSWSC 1273; Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507; R v Murray (1987) 11 NSWLR 12, considered; Batten v Legal Services Board (County Court of Victoria, Judge Parrish, 29 October 2013); R v Lane [2018] UKSC 36; [2018] 1 WLR 3647; Pwr v DPP [2022] UKSC 2; [2022] 1 WLR 789, distinguished.

---

Counsel
Applicant:			In person
First respondent:			Ms J L Dodd
Second respondent:			No appearance
Solicitors
Applicant:			--
First respondent:			Colin Biggers & Paisley
Second respondent:			--

LYONS JA
ORR JA:

1. The applicant is qualified as a lawyer but does not hold a practising certificate.
2. In 2019, the first respondent,^[1] the Victorian Legal Services Commissioner (the ‘Commissioner’), charged the applicant with breaching s 11(1) of the Legal Profession Uniform Law (the ‘Uniform Law’).^[2] The charge alleged that on 24 January 2018, the applicant represented that he was entitled to engage in legal practice by attending the Supreme Court Registry and producing certain documents, and making certain statements, when he was not a ‘qualified entity’ within the meaning of the Uniform Law.
3. At all times, the applicant has denied the charge.
4. On 20 November 2020, the Magistrates’ Court found the applicant guilty of the charge, fined him $5,000 without conviction and ordered him to pay costs. The applicant commenced an appeal in the County Court, which was conducted as a de novo hearing of the charge before her Honour Judge Brimer (whom we shall refer to as the ‘County Court judge’). The appeal was dismissed on 1 December 2021. The applicant then applied to the Supreme Court for judicial review of the County Court’s decision. Justice Forbes (whom we shall refer to as the ‘judge’) dismissed the application on 28 July 2023.^[3]
5. The applicant now seeks an extension of time to file an application for leave to appeal.^[4]
6. The applicant is self-represented. He raises five proposed grounds of appeal, which may be summarised as follows:

(a) The judge erred by concluding (as the County Court judge had done) that s 11(1) of the Uniform Law created an offence of strict liability (proposed grounds 1 and 2).

(b) The judge erred by failing to find that certain findings of fact made by the County Court judge were unreasonable. These findings related to particular ways in which the applicant had represented that he was entitled to engage in legal practice (proposed grounds 3 and 4).

(c) The judge erred in failing to grant relief on the basis that it was unreasonable for the County Court judge to be satisfied that he was not a ‘qualified entity’ within the meaning of the Uniform Law, in circumstances where the County Court judge had failed to consider his submissions on that point (proposed ground 5).

7. By a notice of contention, the Commissioner contends that even if the judge erred as asserted in proposed grounds 3 and 4, the judge ought to have refused to grant relief on the discretionary basis that the relevant findings of the County Court judge were not essential to the conclusion that the applicant was guilty of the charge.
8. We will commence by setting out the key legislative provisions, before providing some background facts. We will then consider the evidence in the County Court appeal, as well as the findings made in that appeal, before turning to the decision on the judicial review application. Finally, we will address each of the proposed grounds of appeal.

Key legislative provisions

9. The central provision for the purpose of this application is s 11(1) of the Uniform Law, which contains the offence with which the applicant was charged. It provides:
   11. Prohibition on advertisements or representations by or about unqualified entities

(1) An entity must not advertise or represent, or do anything that states or implies, that it is entitled to engage in legal practice, unless it is a qualified entity.

Penalty: 250 penalty units.^[5]

10. As we explain below, the applicant also relied on the provisions immediately preceding and following s 11. They provide:
    10. Prohibition on engaging in legal practice by unqualified entities

(1) An entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity.

Penalty: 250 penalty units or imprisonment for 2 years, or both.

...

12. Entitlement of certain persons to use certain titles, and presumptions with respect to other persons

(1) Titles

This section applies to the following titles—

(a) lawyer, legal practitioner, barrister, solicitor, attorney, counsel or proctor;

(b) Senior Counsel, Queen’s Counsel, King’s Counsel, Her Majesty’s Counsel or His Majesty’s Counsel;

(c) any other title specified in the Uniform Rules^[6] for the purposes of this section.

...

(3) Presumption of representation of entitlement of person

The taking or use of a title to which this section applies by a person gives rise to a rebuttable presumption (for the purposes of section 11(1)) that the person represented that he or she is entitled to engage in legal practice.

...

11. Section 6 of the Uniform Law is the definitional provision. Several definitions, which are set out in full below, are relevant:

Australian legal practitioner means an Australian lawyer who holds a current Australian practising certificate;

disqualified person means ... a person who has been refused the grant or renewal of an Australian practising certificate and who has not been granted an Australian practising certificate at a later time;

engage in legal practice includes practise law or provide legal services, but does not include engage in policy work (which, without limitation, includes developing and commenting on legal policy);

jurisdiction means a State of the Commonwealth, the Australian Capital Territory or the Northern Territory of Australia;

qualified entity means—

(a) an Australian legal practitioner; or

(b) a law practice; or

(c) either —

(i) an Australian registered-foreign lawyer; or

(ii) a foreign lawyer who is not an Australian-registered foreign lawyer but only to the extent that the foreign lawyer’s legal practice is limited to the practice of foreign law and is carried out in accordance with the applicable requirements of Part 3.4; or

(d) an individual engaged in legal practice under the authority of a law of the Commonwealth or of a jurisdiction other than this Law or the Uniform Rules; or

(e) an entity engaged in legal practice of a kind specified in the Uniform Rules for the purposes of this definition, but only while the entity engages in the legal practice in accordance with the applicable requirements of the Uniform Rules[.]

Background facts

12. The applicant held a volunteer practising certificate for the 2016/17 practising year. On 26 May 2017, he applied to the Victorian Legal Services Board (the ‘Board’) to renew his certificate for the 2017/18 practising year.
13. On 12 July 2017, the Board emailed correspondence to the applicant, in which the Acting Commissioner informed the applicant of his preliminary view that the applicant was not a fit and proper person to hold a practising certificate, and his reasons for that view. The Acting Commissioner noted that the applicant’s practising certificate for the 2016/17 practising year had expired on 30 June 2017. He invited the applicant to respond to his preliminary view that he was not a fit and proper person, which the applicant did by post in correspondence dated 28 July 2017.
14. On 2 August 2017, the Board attempted to email correspondence to the applicant, for the purpose of giving him the opportunity to provide a further response concerning his renewal application. The employee of the Board who sent the email misspelled the applicant’s email. On 14 August 2017, he re-sent the email to the applicant’s correct email address, giving the applicant until 28 August 2017 to provide any further response. No further response was received from the applicant.
15. On 16 October 2017, the Board emailed correspondence to the applicant, in which the Acting Commissioner informed the applicant that he had refused the applicant’s renewal application, because the applicant was not a fit and proper person to hold a practising certificate. The Acting Commissioner provided reasons for his decision, which included that the applicant had provided inaccurate information to the Board in his application. The Acting Commissioner noted that up until this point, the applicant had carried a deemed practising certificate, pending the decision on his fitness. He advised that the refusal of the application meant that the applicant must not provide legal services and was now a ‘disqualified person’ as defined in the Uniform Law.
16. On 23 January 2018, the applicant attended the Registry of the Supreme Court to file a habeas corpus application against the Royal Melbourne Hospital. The applicant’s mother was being treated at the hospital, and the hospital had refused requests by the applicant to discharge her. At the Registry, the applicant met with Natasha Russo, a Registry employee. Ms Russo did not accept the application for filing and told the applicant that it needed to be signed by both plaintiffs. She also said that she would prefer to see an affidavit in support from his mother.
17. On 24 January 2018, the applicant returned to the Registry and again met with Ms Russo. There was a dispute as to what took place during this meeting between Ms Russo and the applicant, including in relation to the documents produced and the statements made by the applicant. What is not in dispute is that during this meeting, the applicant produced to Ms Russo a copy of his certificate of admission, in the name of ‘Hermann Orlando Giurina’, and a copy of an ‘evidentiary certificate’ issued by the Board on 14 November 2017, which listed information kept by the Board about him, under the name ‘Ermanno Orlando Giurina’. The evidentiary certificate mistakenly recorded that the applicant currently held a volunteer practising certificate. Ms Russo discussed the evidentiary certificate with her colleague, Katherine Price, who made a copy of it. There was no evidence of any other document produced by the applicant being copied or retained. Ms Russo did not accept the habeas corpus application for filing.
18. On 9 February 2018, the applicant obtained the seal of the Court on a summons to commence the habeas corpus proceeding.
19. On or around 12 September 2018, the applicant again applied to the Board for a volunteer practising certificate.
20. On 2 October 2018, the Board emailed correspondence to the applicant, in which the Acting Commissioner informed the applicant of his preliminary view that the applicant was not a fit and proper person to hold a practising certificate, and his reasons for that view. Those reasons included that the applicant had previously provided inaccurate information in order to obtain a practising certificate, and that he had provided false and misleading information in an affidavit filed in a (separate) Supreme Court proceeding, in what the Commissioner believed was a knowing and intentional attempt to mislead the Supreme Court. The Acting Commissioner invited the applicant’s response.
21. On 15 October 2018, the applicant replied to the Board in correspondence sent by post. He rejected the assertion that he had attempted to mislead the Supreme Court, and provided an explanation for the information provided in support of his previous application that was said to be inaccurate. He also said:

I would have been well within my rights to have appealed the decision of ... 16 October 2017 ... . However due to me being busy with other matters I did not pursue an appeal but the fact that I did not do so should not be taken as any admission of any wrongdoing on my part.

22. On 1 November 2018, the Board emailed correspondence to the applicant, in which the Manager, Regulatory Intervention, informed the applicant that the Board had various information indicating that the applicant may have represented that he was entitled to engage in legal practice when he was not entitled to do so. This included information that on 24 January 2018, the applicant had attended the Supreme Court Registry and produced an evidentiary certificate issued by the Board as evidence of his entitlement to practise.
23. On 16 November 2018, the Board emailed correspondence to the applicant, in which the Commissioner informed him that the Board had received information that in January 2018, the applicant had provided the Supreme Court with the evidentiary certificate issued by the Board as evidence of his entitlement to practise, now also formed part of her preliminary view that the applicant was not a fit and proper person to hold a practising certificate. The Commissioner invited a further response from the applicant.
24. On 30 November 2018, the applicant replied to the Board in correspondence sent by post. He said, for the first time, that the Board’s emailed correspondence of 16 October 2017 refusing his application to renew his practising certificate for the 2017/18 practising year had gone to his spam inbox. He said he had only discovered the email sometime later.
25. The applicant also said:
    8. Secondly my recollection is that I have never applied to the Board to provide me with an evidentiary certificate about my practising history and therefore no such original certificate has ever been in my possession.

...

10. Any supposed certificate in my possession [on 24 January 2018] would only have been a copy provided to me by a third party arising from personal litigation ... which I have been involved in and was not used in any manner by me as evidence of my entitlement to practise (nor could it be as I never had an original) and which in any event was not an issue being discussed with registry staff.

26. On 11 December 2018, the Board emailed the applicant correspondence in which Laura Gaffey, an investigations officer, formally alleged that the applicant had, on 24 January 2018, engaged in unqualified legal practice and/or represented an entitlement to engage in legal practice by attending the Supreme Court Registry and producing certain documents and making certain statements, when ‘you knew, or ought reasonably to have known, that you were a disqualified person’. Ms Gaffey invited the applicant to attend the Board’s offices for an interview.
27. On 21 December 2018, the applicant was interviewed by Ms Gaffey, and a corroborator, Rai Small. The interview was recorded and transcribed.
28. On 16 January 2019, the Commissioner charged the applicant with one charge of breaching s 11(1) of the Uniform Law. The charge read:

Representing an entitlement to engage in legal practice without qualification

The Accused, on 24 January 2018, at Melbourne in the State of Victoria, did represent an entitlement to engage in legal practice by attending the Supreme Court of Victoria Registry and producing a Certificate of Admission, an evidentiary certificate from the Victorian Legal Services Board, and a Certificate of Solicitor to demonstrate his entitlement to engage in legal practice, and by making statements to Registry staff to the effect that he was a practising solicitor, and at the time the Accused was not a qualified entity.

29. As we have said, on 20 November 2020, the Magistrates’ Court found the applicant guilty of the charge, and the applicant appealed the decision to the County Court.
30. The appeal in the County Court was heard over three days, from 29 November 2021 to 1 December 2021. The Commissioner tendered the correspondence to which we have referred, as well as the evidentiary certificate that had been copied by Ms Price, the transcript of Ms Gaffey’s interview of the applicant and various other documents. The Commissioner called three witnesses: Ms Russo, Ms Price and Ms Gaffey. The applicant, who was unrepresented, also gave evidence. He tendered various documents, including a copy of his certificate of admission, a copy of a summons seeking habeas corpus that was stamped to indicate that it had been filed on 9 February 2018, and a copy of an affidavit that he said he had sworn on 23 January 2018 in support of the habeas corpus application. At the conclusion of the hearing, the County Court judge delivered ex tempore reasons and found the applicant guilty of the charge.
31. We turn now to more closely examine the evidence in the County Court appeal.

The evidence

Natasha Russo

32. Ms Russo made two statements, dated 15 July 2019 and 25 September 2020. Each was tendered in evidence.
33. Ms Russo said she met with the applicant on 23 January 2018. He said he was there to file a writ which named him and his mother as plaintiffs. He said his mother was detained in hospital. The writ was not signed by his mother. Ms Russo told the applicant she could not accept it, because it needed to be signed by both plaintiffs.
34. Ms Russo said that on 24 January 2018, the applicant returned with a version of the writ that named him as litigation guardian for his mother. This overcame the problem she had raised with him the previous day about the absence of his mother’s signature on the document. Ms Russo said to the applicant that she didn’t realise he was a lawyer, to which the applicant said ‘yes’. Ms Russo explained to the applicant the documents that were needed to proceed as a litigation guardian under Order 15 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’).
35. We pause to note that Order 15 of the Rules deals with the circumstances in which a person under a disability may be represented by a litigation guardian. Order 15.03(6) provides that except where a litigation guardian has been appointed by the Court, the name of a person shall not be used in a proceeding as litigation guardian of a person under disability unless certain documents are first filed in the office of the Prothonotary. Those documents are a written consent of the person to be the litigation guardian and a certificate by the solicitor for the person under disability certifying that: the solicitor knows or believes that the person to whom the certificate relates is a handicapped person, including the grounds of the solicitor’s knowledge or belief; and that the litigation guardian has signed the written consent and has no interest in the proceeding adverse to that person.
36. Ms Russo said that the applicant produced the documents required by Order 15. He produced a certificate of solicitor that he had signed, the evidentiary certificate,^[7] his certificate of admission and an affidavit. The applicant said that he had been admitted many years ago. He also said that he had a volunteer practising certificate and was currently volunteering at a community legal centre.
37. Ms Russo left the meeting on a few occasions to speak to Katherine Price. She showed her the evidentiary certificate and they discussed whether there were any restrictions on volunteer practising certificates. Ms Russo then called the Board and asked whether there were any restrictions on someone who has a volunteer practising certificate. She was told that there probably weren’t, but that they could look up details for the person who held the certificate. She gave the representative of the Board the applicant’s name. She was told that the applicant’s practising certificate had been revoked and that he no longer held a practising certificate. Ms Russo returned to the applicant and told him that she could not find any information on whether there were any restrictions on a volunteer practising certificate, and advised him that he would need to contact the Board to confirm if there were any restrictions before returning to the Court.
38. At the beginning of her cross-examination, Ms Russo agreed that on 24 January 2018, the applicant did not produce any evidence that his mother had any disability. Nor did they discuss any disabilities that his mother might have.
39. The applicant suggested to Ms Russo that on 23 January 2018 she had raised with him the issue of the age of his mother and whether she understood the proceeding. Ms Russo agreed that she had raised the issue of whether the applicant’s mother understood the proceeding. She said she had told him that she would prefer to see an affidavit in support from his mother.
40. Ms Russo confirmed that she had made handwritten notes of her interactions with the applicant on 24 January 2018, which she had attached to the statement she made on 25 September 2020. The notes read:

notes — Ermanno Giurina 24/1

Mr Giurina attended the court prior to today — Filing a writ in his & his mums name. on behalf of his mum, he told she is in hospital & they refuse to release her. to his custody. Hospital filed at vcat for Guardinship [sic] She had not signed writ. I told him she needs to sign I also talked with him about getting an affidavit done by his mum. he Returned today to file and had the [sic] he was her lit gaurdian [sic] & had doc’s saying that. I talked to him about order 15 of the rules and what is required. he prdocued [sic] some doc’s to me Admission & practising cert but volenteer [sic]. I tried to follow up re any conditions on a volenteer. After discussions with Kate I called the board Who advised that cert is not valid. cassandra [the representative of the Board] said he did not have a current cert.

I refused to Accept his filing until he could tell me / Show if a volenteer had restristrictons [sic].

41. Ms Russo accepted that her notes made no mention of the applicant producing a certificate of solicitor. She said the notes were just some dot points about what happened at the time and it was not her intention to record every detail.
42. The applicant asked Ms Russo to explain the grounds that he had stated in the certificate of solicitor for knowing that his mother had a disability. She said ‘[i]t was on the basis’ that his mother did not have the capacity to attend the Court to sign the documents herself, and that she had limited English skills.
43. The applicant also suggested to Ms Russo that he did not produce a written consent stating that he was consenting to act as a litigation guardian. Ms Russo agreed that the applicant did not produce a separate written consent, but she said she believed that the certificate of solicitor acted as a written consent.
44. Later in her cross-examination, the following exchange occurred about the reasons why the applicant had showed Ms Russo a copy of his certificate of admission:

Right. I put it to you that the reason I showed you — well my evidence will be that that is what I showed you — but I put it to you that I showed you that copy, to indicate that I had legal qualifications and had been admitted into the profession. Is that correct?---That is correct.

The reason I showed you that was that we had a discussion about the rules and I was indicating to you that I am not a mere lay person but had legal qualifications. Is that correct?---You showed that document — document to me to — to advise me that you had legal qualifications.

That’s correct, right. And that was in the context of the conversation that I was indicating to you that I am very familiar with the Supreme Court General Civil Procedure Rules and that there was no need to explain them to me. Is that correct?---No.

You’re disputing that, that’s not correct?---I don’t believe that conversation was in relation to that, no.

I put it to you that I did not show you that document or that copy of that admission certificate to demonstrate any entitlement to engage in legal practice?---I disagree.

I put it to you that the purpose of showing that document was simply for the purpose of indicating to you that I had legal qualifications and that I knew what the — what the Supreme Court Rules were all about?---Correct.

45. Ms Russo also did not agree that the reason the applicant had showed her the evidentiary certificate was to confirm that the person named on each of the certificates (‘Hermann Orlando Giurina’ on the certificate of admission and ‘Ermanno Orlando Giurina’ on the evidentiary certificate) was the same person.
46. At the end of Ms Russo’s cross-examination, the applicant showed Ms Russo part of her 15 July 2019 statement, in which she had said that:
    11. When I saw the Certificate of Solicitor, I said to Mr Giurina words to the effect of ‘Oh, I didn’t realise you were a solicitor’.
    12. Mr Giurina replied with words to the effect of ‘Yes, I was admitted a long time ago’. ...

...

15. I returned to Mr Giurina and asked him if he was a practising solicitor. Mr Giurina replied using words to the effect of ‘yes I am, I have been working at [a] community legal centre for the past few months’.

47. The applicant suggested to Ms Russo that ‘you actually did not hear the exact words that I said to you; is that correct?’ Ms Russo said that because her statement was made ‘afterwards’, she could not recall the exact words that the applicant had used. She accepted that she could not recall what community legal centre the applicant said he had worked for. However, when the applicant suggested to her that he had never said words to the effect that he was a practising solicitor, she said ‘I disagree’.

Katherine Price

48. Ms Price said that on 24 January 2018, Ms Russo approached her about an application for habeas corpus. The plaintiff was seeking to bring a proceeding by a litigation guardian. Ms Price explained to Ms Russo that the Rules required the plaintiff to have a certificate of solicitor. Ms Russo then went back to see the applicant, before again returning to Ms Price. Ms Russo said the applicant had prepared a certificate of solicitor himself on the basis that he was eligible to provide such a certificate.
49. Ms Price said that Ms Russo also provided her with a document that the applicant had produced. Counsel for the Commissioner then showed Ms Price a copy of the evidentiary certificate, which Ms Price identified as the document that Ms Russo had provided her. Ms Price said that she saw that the document stated that the applicant held a current volunteer practising certificate. She was unsure whether that would put the applicant into the definition of a solicitor for the purpose of Order 15 of the Rules. She suggested that Ms Russo seek advice from the Board. Ms Price heard Ms Russo call the Board and ask whether a volunteer practising certificate would have this effect. When Ms Russo got off the phone, she told Ms Price that the applicant did not have a current practising certificate, and that the Board had requested a copy of what he had produced. Ms Price copied the evidentiary certificate, which she then emailed to the Board.
50. In cross-examination, Ms Price accepted that on 24 January 2018, she had no interactions with the applicant. She also accepted that she had not heard any part of the conversation between him and Ms Russo.

Laura Gaffey

51. Ms Gaffey said that in February 2019, she had taken over an investigation of allegations concerning conduct that the applicant had engaged in on 24 January 2018.
52. Ms Gaffey was also shown the evidentiary certificate. She said it was a type of document the Board provided under s 446 of the Uniform Law to set out the practising record and current practising status of a legal practitioner. She said the previous investigator had established that the evidentiary certificate had been provided to the Office of Public Prosecutions in response to a request by them in November 2017. It had then been emailed by the Office of Public Prosecutions to the Heidelberg Magistrates’ Court as part of a hand up brief. The applicant had been copied to that email.
53. Ms Gaffey said that although the evidentiary certificate recorded that the applicant’s volunteer practising certificate was due to expire on 30 June 2018, this was a clerical error. The applicant had held a volunteer practising certificate from 15 March 2017, but it had expired on 30 June 2017. Further, because the applicant had applied to renew the volunteer practising certificate on 26 May 2017, and that application had not been determined until 16 October 2017, the applicant held what was referred to as a ‘deemed’ practising certificate between those dates, pursuant to r 17(2) of the ‘Uniform General Rules’.^[8]
54. Through Ms Gaffey, the Board tendered the correspondence between the Board and the applicant referred to above, as well as the recording and transcript of Ms Gaffey’s interview of the applicant. The recording of the interview was played.

Applicant’s interview

55. At the commencement of that interview, Ms Gaffey asked the applicant to identify a number of documents. The applicant confirmed that he had authored each of the letters referred to at [13], [21] and [24] above. He was also shown copies of each of the letters from the Board referred to at [13], [15], [20], [22]–[23] and [26] above.
56. The applicant was then asked to describe what happened when he attended the Supreme Court Registry in January 2018. He said he had attended the Registry to commence a habeas corpus application in his and his mother’s personal capacity, because the Royal Melbourne Hospital was refusing to release her from its care. He said he had never intended to be a litigation guardian for his mother. It was the staff at the Registry who had said to him that because his mother was elderly, the hospital might raise the issue of a litigation guardian. He said he had a general discussion with Registry staff about Order 15 of the Rules.
57. Ms Gaffey told the applicant that the Board had received information that on 23 January 2018, he had showed Ms Russo a habeas corpus application form, which had not been signed by his mother. Ms Russo had refused to accept his application without confirmation of his mother’s capacity, and an affidavit from his mother indicating that she understood the nature of the application. The applicant said he could not remember exactly what had happened.
58. Ms Gaffey suggested to the applicant on 24 January 2018, he had returned to the Registry and produced the affidavit from his mother that Ms Russo had requested the previous day, along with a certificate of solicitor as required under Order 15. The applicant said ‘Absolutely not’.
59. Ms Gaffey then asked the applicant:

Q87. ... when Ms Russo viewed a certificate of solicitor she said words to the effect of, ‘Oh, I didn’t realise you were a solicitor’, and you responded with words to the effect of, ‘Yes, I was admitted a long time ago’. And at this point you produced a photocopy of your Notice of Admission. What do you say to that?

1. Look, again I can’t recollect the actual — any documents being produced. Having said that, I am admitted in the profession. I may or may not have said that. I can’t recollect the exact words but that — if I did say that, that was in the general discussion we were having as to who could be appointed a litigation guardian.

60. The applicant denied telling Registry staff that he was a practising solicitor, or that he was working at a community legal centre.
61. Ms Gaffey then suggested to the applicant that he had produced an evidentiary certificate that stated that he held a volunteer practising certificate:

Q91. On the 24^th January 2018, we say that you produced an evidentiary certificate from the Legal Services Board dated 14 November 2017, stating that you [had] a volunteer practicing certificate which expired in about June 2018. What do you say to that?

1. I never had an evidentiary certificate issued to me, as I’ve said in the letter, and I’ve never applied for one. ... I didn’t have an original evidentiary certificate, it was never granted or applied. I never applied for one and I never had an original, nor did I have a certified copy. There have been, as I’ve said in my letter of 30^th November, there have been evidentiary certificates floating around from other people who have been engaged in litigation, dealing with the owners corporation 1579, which I’ve been involved in. But I didn’t produce any evidentiary certificate that had been given to me saying here’s an evidentiary certificate, I’m entitled to practice, absolutely not.

62. The applicant said he never had an evidentiary certificate and had never applied for an evidentiary certificate from the Board. When pressed about this, the applicant said he had a copy of the certificate as part of an affidavit from someone else, as part of ‘the owners corporation litigation’, but he had never used that for any reasons for himself.
63. The applicant was then shown an email from the Office of Public Prosecutions dated 16 November 2017, which attached a copy of the evidentiary certificate. The applicant was listed as one of the recipients of the email. The applicant told Ms Gaffey that although he had received this email, it was part of the litigation involving the owners corporation, and he had never used the attached copy of the evidentiary certificate to say that he was entitled to practise.
64. The applicant was then told that the Supreme Court had indicated that the applicant provided them with a copy of the evidentiary certificate. The applicant said he could not recall providing it to the Court, but when pressed, appeared to admit that it was possible that he did:

Q105. So, the Supreme Court’s provided us with a copy of that and indicated that you’ve provided it to them. Do you have any idea how they could have got a copy of it if you hadn’t provided it? Do you know of anyone else associated with the Supreme Court who would have had a copy of that?

A. That I provided that?

Q106. That’s right.

A. I can’t recollect that I provided that.

Q107. To them during the course of discussions about you being able to initiate proceedings?

1. Well I — as I said, I can’t recollect having provided them with that. If that’s what they’re saying well that’s, you know, that’s — obviously I — there’s no — I can’t recollect that document being provided by me but if there’s no other — well there are other parties who could have provided that document ... .

Q108. Not the — not the email, no, the certificate. Just the certificate.

1. Not the email. Well I must, you know, in all honesty I can’t recollect that I provided this certificate and if I — without, you know, in any way incriminating myself, it would have been in relation to — it may have been — you know, I just can’t recollect that I actually used that.

Q109. If you were to have used it, like what would that mean to you? Like what would you be saying to the court in providing that? What would be the purpose of providing that?

1. Well I — I would not in any way be using that to say that I’m practicing at the moment in any way. It would just be probably in relation to a discussion about who would be, if necessary, a litigation guardian in the future but I’m not in any way using that to represent that I am actually entitled to practice.

65. At the conclusion of the interview, the applicant was asked what he had believed his practising certificate status to be in January 2018:

Q150. Just to finally clarify. So in January of this [year], 2018, what did you believe your practicing certificate status to be?

1. Well, as I said, at the time I hadn’t received any formal notification, so my understanding is that you — there is a provision in the Act where you have a deemed practicing certificate, but I didn’t really know the exact status. Because I had re-applied in May 2017 but had received no notification from the organisation. So it was — in anyway I was in limbo but as I said, you’re supposedly — there is a provision in the Act that says you operate under a deemed practicing certificate, but that wasn’t something in my head. I just sort of was basically in a state of limbo. So I couldn’t say to anyone, I couldn’t say to anyone I am entitled to practice or whatever because in my mind I had applied but had received no response.

Applicant’s evidence

66. The applicant’s evidence before the County Court judge was that on 23 January 2018, he arrived at the Registry with a summons and an affidavit. He met with Ms Russo, who said she would prefer to see an affidavit in support from his mother. The applicant then returned to the Royal Melbourne Hospital but was unable to get an affidavit from his mother because he could not find a witness or translator. English was not his mother’s first language.
67. The applicant said that on 24 January 2018, he returned to the Registry with the same summons and affidavit. He said the only difference between the summons he had with him on 24 January 2018 and the tendered summons (which was stamped to indicate that it had been filed on 9 February 2018) was that the former was undated.
68. The applicant said he told Ms Russo that he wanted to proceed under Order 57 of the Rules. He showed her a copy of his certificate of admission, which had the name Hermann on it, to prove to her that he had legal qualifications and was therefore familiar with the Rules.
69. The applicant said that because he had introduced himself to Ms Russo as Ermanno, he also showed her a copy of the evidentiary certificate to prove that Hermann and Ermanno were the same person. He said he did not show Ms Russo the evidentiary certificate to show that he was entitled to engage in legal practice. He denied saying to Ms Russo words to the effect that he was a practising solicitor or that he was working at a community legal centre.
70. In any event, the applicant said that on 24 January 2018, he did not know that he was no longer entitled to practise. The email correspondence from the Board dated 16 October 2017 informing him that his renewal application for the 2017/18 practising year had been refused was in his spam inbox, so he had not yet seen it. He believed he was operating under a ‘deemed’ practising certificate.
71. The County Court judge invited the applicant to address his answer to question 150 in the record of interview (see [65] above), in which he had said a deemed practising certificate ‘wasn’t something in my head’ on 24 January 2018. The applicant responded that he had given that answer because whether or not he held a practising certificate was irrelevant for the purposes of the habeas corpus application that he was seeking to commence under Order 57.
72. In cross-examination, the applicant agreed that it was urgent, from his point of view, that the habeas corpus application be commenced.
73. Through the applicant’s cross-examination, various inconsistencies and irregularities arising from his evidence and his communications with the Board were identified. These included the following:

(a) On 2 October 2018, the Acting Commissioner informed the applicant that he proposed to refuse his application for a practising certificate for the 2018/19 practising year for reasons that included those given in his refusal of his renewal application on 16 October 2017. In his reply on 15 October 2018, the applicant said he would have been well within his rights to appeal the 16 October 2017 refusal, but did not do so because he was busy. He said the fact that he had not appealed should not be taken as an admission of wrongdoing (see [20]–[21] above). Yet he made no mention of the email having gone into his spam inbox.

(b) It was only after the Board informed him, on 1 November 2018, of the new allegation against him that he had represented an entitlement to practise at the Registry, that the applicant asserted for the first time, in his reply of 30 November 2018, that the Board’s 16 October 2017 email refusing his renewal application had gone into his spam inbox (see [22] and [24] above).

(c) In his email of 30 November 2018, the applicant did not admit showing Registry staff a copy of the evidentiary certificate. He had worded his email carefully (‘Any supposed certificate in my possession’) to avoid admitting that he had done so (see [25] above).

(d) When first asked in his interview whether he had produced an evidentiary certificate to Registry staff, he again worded his answer carefully to avoid admitting that he had done so (see [61] above).

(e) It was only when it was revealed to the applicant later in the interview that the Board had a copy of the evidentiary certificate that it had received from the Supreme Court, that he appeared to admit that it was possible he had produced it (see [64] above). When it was put to the applicant in cross-examination that he had been pretending not to remember that he had provided the evidentiary certificate in his interview, his explanation was that he had been answering questions on the basis that the allegation against him was that he had provided a copy of an evidentiary certificate to represent an entitlement to practise. That was why he appeared not to remember producing the evidentiary certificate in the interview.

(f) The applicant did not advance the explanation he gave in evidence for showing Ms Russo the copy of the evidentiary certificate, namely that it was to prove that Hermann and Ermanno were the same person, in any of his communications with the Board, nor in his interview (see [24]–[25] and [61]–[6463] above). This was said to suggest that it was a recent invention.

74. The transcript shows that the applicant was evasive throughout his cross-examination. He often gave non-responsive or ambiguous answers, and when pressed, often said that things were hard to remember.

County Court decision

75. The County Court judge delivered ex tempore reasons at the conclusion of the hearing on 1 December 2021, which we will refer to as the ‘Ruling’. Her Honour found the applicant guilty, concluding that:

(a) the offence created by s 11(1) of the Uniform Law is one of strict liability and, as a result, the determination of whether the applicant’s conduct amounted to an offence contrary to s 11(1) depended upon the applicant’s words and actions and not what the applicant intended those words and actions to mean;^[9] and

(b) based on the evidence of Ms Gaffey that the applicant’s volunteer practising certificate had expired on 30 June 2017 and that he did not have a practising certificate as at 24 January 2018, the applicant was not at that time a ‘qualified entity’ within the meaning of s 11(1).

76. The County Court judge also concluded that she was satisfied beyond reasonable doubt that the applicant had represented to Ms Russo that he was entitled to engage in legal practice as alleged. Her Honour reached this conclusion by way of the following findings.
77. First, given that Ms Russo told the applicant on 23 January 2018 she could not accept the habeas corpus application, it did ‘not ring true’ that the applicant would return the next day with the same documents, not being in a position to address Ms Russo’s concerns. As a result, her Honour was satisfied that the applicant came back with an amended originating process naming himself as litigation guardian, consistent with Ms Russo’s evidence.
78. Second, the applicant was strongly motivated to convince Ms Russo on 24 January 2018 to accept the documents for filing.
79. Third, Ms Russo’s evidence that the applicant told her he had a volunteer practising certificate and was working at a community legal centre was objectively supported by his production of the evidentiary certificate.
80. Fourth, the applicant’s explanations for the production of his certificate of admission and the evidentiary certificate were recent inventions. The applicant could easily have told Ms Russo that he was a lawyer, without needing to produce those documents. Further, had those explanations been genuine, the applicant would have provided them in his interview with the Board rather than saying at that time that he could not recollect those documents being produced.
81. Fifth, the applicant gave careful answers in the interview with the Board, which lacked candour. The explanations he later gave for his careful answers in the interview — such as that he had been answering questions on the basis that it was being alleged that he had produced the evidentiary certificate to represent an entitlement to practise — were unsatisfactory. Even if it were accepted that the applicant had been attempting to draw a distinction between producing the evidentiary certificate per se and producing the evidentiary certificate for a particular purpose, that in itself would demonstrate a lack of candour.
82. Sixth and relatedly, the applicant’s answers in cross examination were ‘evasive, and lacking in credibility’.
83. Seventh, the absence of reference to specific matters in Ms Russo’s notes did not adversely affect Ms Russo’s reliability or credibility: those notes were only a high level record of what had occurred.
84. In light of the above, the County Court judge concluded that:

I am satisfied, beyond reasonable doubt, that Mr Giurina showed Ms Russo a solicitor’s certificate that he had signed pursuant to Order 15; that he told her that he had been admitted many years before and showed her his certificate of admission; that he told her that he had a volunteer practising certificate and was currently volunteering at a community legal centre and showed her a copy of the evidentiary certificate dated 14 November 2017 in response to her telling him that he needed a practising certificate.

I am satisfied, beyond reasonable doubt, on the basis of all of the above, that the offence has been made out.

85. The County Court judge then considered the defence of honest and reasonable mistake. The applicant’s claim was that on 24 January 2018, he believed that he was entitled to practise because at that time he had not received a response to his application to renew his practising certificate and there was a provision of the Uniform Law which entitled legal practitioners to continue to practise where they had submitted a renewal application prior to the end of the practising year, and the Board had not yet made a decision.^[10]
86. The County Court judge noted that the Commissioner had conceded that there was an evidential foundation for the defence, namely, the clerical error in the evidentiary certificate and the applicant’s evidence that he did not receive the 16 October 2017 email refusing his renewal application because it had gone into his spam folder. Nevertheless, her Honour concluded that the applicant did not honestly or reasonably believe he was entitled to practise on 24 January 2018. This was because:

(a) The Board’s letter of 16 October 2017 was sent to the email address with which the applicant had previously corresponded with the Board, including on 12 July 2017^[11] and 14 August 2017.

(b) The first time the applicant claimed that the 16 October 2017 letter had gone to his spam inbox was in his email to the Board of 30 November 2018, despite the fact that the applicant had previously corresponded with the Board about the refusal contained in the 16 October 2017 letter, including on 15 October 2018.

(c) The applicant’s answer to question 150 of the interview (see [65] above) contradicted his claim that he believed on 24 January 2018 that was entitled to practise. The applicant had said: ‘there is a provision in the Act that says you operate under a deemed practicing certificate, but that wasn’t something in my head. I just sort of was basically in a state of limbo. So I couldn’t say to anyone, I couldn’t say to anyone I am entitled to practice or whatever because in my mind I had applied but had received no response’.

(d) The applicant was on notice, by correspondence from the Board dated 12 July 2017, to which he had replied on 28 July 2017, that the Acting Commissioner’s preliminary view was that he was not fit and proper person to hold a practising certificate.

(e) The applicant nevertheless failed to make any contact with the Board to find out whether any decision had been made.

87. Thus, the County Court judge was satisfied beyond reasonable doubt that the charge had been proved and that the Commissioner had discharged her burden of negating the defence of honest and reasonable mistake. As a result, her Honour imposed a fine of $5,000 without conviction and ordered the applicant to pay costs of $28,850.

Judicial review application

88. The applicant then brought a judicial review proceeding in the Supreme Court pursuant to Order 56 of the Rules. In his amended originating motion dated 19 September 2022, the applicant relied upon 14 grounds of review in seeking to have his conviction set aside and orders made dismissing the charge and remitting the question of costs. Only some of those grounds were pursued in this application.
89. The judicial review proceeding was heard before Justice Forbes on 22 March 2023. Her Honour handed down reasons dismissing the application on 13 July 2023 and made orders to that effect on 28 July 2023.
90. We will address the reasons of the judge in more detail in considering each of the proposed grounds. However, in summary, the judge concluded that:

(a) there was no error of law in the County Court judge’s conclusion that the offence created by s 11(1) of the Uniform Law was one of strict liability;^[12]

(b) the County Court judge did not act unreasonably in concluding that she was satisfied beyond reasonable doubt that the applicant produced a certificate of solicitor and made statements to Registry staff to the effect that he was a practising solicitor;^[13] and

(c) the County Court judge did not fail to properly deal with the applicant’s submission that he was a ‘qualified entity’ and, even if she had, it was appropriate to refuse relief.^[14]

Proposed ground 1: does s 11(1) of the Uniform Law create a strict offence?

91. Proposed ground 1 contends that the judge erred in confirming the County Court judge’s finding that s 11(1) of the Uniform Law is a strict liability offence. It is in the following terms:

Her Honour erred at law in concluding that Ground 13 of the review application^[15] had not been made out as [the County Court judge] had erred at law in concluding that s 11(1) of the [Uniform Law] is an offence of strict liability and Her Honour erred at law in agreeing with the appeal judge on point.

Reasons of the judge

92. The judge identified the relevant principles as follows:^[16]

(a) There is a common law presumption that a mental element of knowledge or intent is an essential ingredient of every offence.^[17]

(b) This presumption may be displaced based upon the factors identified in He Kaw Teh, namely (1) the words of the statute; (2) the subject matter of the statute; and (3) the utility of imposing strict liability.^[18]

(c) If the presumption is displaced, it does not follow that the offence is one of absolute liability. A ‘middle course ... is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent’.^[19]

93. The judge then applied the principles she had identified in construing s 11(1), and addressing the applicant’s submissions:

(a) The judge commenced by noting that the starting point was a presumption that knowledge is a required element. She observed that the words of s 11(1) do not refer to any mental element.^[20]

(b) The judge then turned to the subject matter of the Uniform Law. She noted that that the Uniform Law deals with many acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’. Section 10(1), which prohibits unqualified entities from engaging in legal practice, was another example. The judge said that she would assume (as the applicant had submitted) that the presumption of a mental element was not displaced for s 10(1), given that the maximum penalty for that offence, in contrast to the offence in s 11(1), included a term of imprisonment. However, she rejected the applicant’s submission that the presence of a mental element in s 10 informed whether the presumption was displaced in s 11, even though there may be factual overlap between the two offences. The offence in s 10 was more egregious and the sections should not be treated the same with respect to the mental element.^[21]

(c) The judge then considered the objects of the Uniform Law as set out in s 3, which include maintaining ethical and professional standards of lawyers, protecting lawyers’ clients and the public generally, and regulating the legal profession in a way that is efficient, effective, targeted and proportionate. She rejected the applicant’s submission that because a purpose of the threshold requirements to engage in legal practice is to protect the public,^[22] the scheme does not seek to punish lawyers, given that the scheme permits the laying of charges and ss 10 and 11 both provide criminal sanctions for breach.^[23]

(d) The judge then addressed the case of Batten v Legal Services Board,^[24] a decision of a County Court judge relied upon by the applicant.^[25] Batten concerned an offence contained in s 2.2.3(1) of the Legal Profession Act 2004, which was analogous to the offence in s 11(1) of the Uniform Law. The applicant argued that Batten had been conducted on the basis of an implicit acceptance that the offence had a mental element. The judge said that the reasons in Batten were also consistent with the offence being one of strict liability, subject to a defence of honest and reasonable mistake. Further, in Batten, the judge did not address whether the offence was one of strict liability.^[26]

(e) Finally, the judge addressed the applicant’s submissions about the utility of construing s 11 as imposing strict liability, subject to a defence of honest mistake or reasonable belief. She accepted that a person who failed to make reasonable enquiries about their entitlement to practise while their application to renew their practising certificate remained outstanding would face difficulties with establishing such a defence. But she was unpersuaded that construing s 11 in this way would not promote an efficient or effective regulatory regime.^[27]

94. In all the circumstances, the judge concluded that the County Court judge was correct to hold that s 11(1) was a strict liability offence.^[28]

Applicant’s submissions

95. The applicant’s written submissions in relation to proposed ground 1 were lengthy.^[29] The key propositions were as follows:

(a) Where a statute that creates a criminal offence is silent on whether there is a mental element, the presumption of a mental element is a strong one that will only be rebutted by express words or by necessary implication. The factors in He Kaw Teh are only relevant when the presumption has been rebutted.

(b) Section 11(1) does not contain express words to rebut the presumption. Nor is the presumption rebutted by necessary implication. If Parliament had intended for s 11(1) to create an offence of strict liability, it would have included words eschewing a mental element of knowledge by importing an objective rather than subjective standard. The applicant referred to R v Lane^[30] and Pwr v DPP.^[31] He said that in Lane, the words ‘reasonable cause to suspect’ were held to import an objective standard, such that it was not necessary for a person to suspect a certain state of affairs to be guilty of the relevant offence. His submission in respect of Pwr was to similar effect. Unlike in Lane and Pwr, the applicant submitted, s 11(1) does not contain ‘any objective words to replace the subjective intention’ of an entity that is alleged to have represented an entitlement to engage in legal practice.

(c) The different maximum penalties for the offences in ss 10(1), 11(1) and 11(2) of the Uniform Law reflect a difference in the seriousness of each offence, rather than a difference in the existence of a mental element across those offences.

(d) Other provisions of the Uniform Law and the Application Act indicate that the statutory scheme is premised on there being no need for a person to make enquiries about their entitlement to practise because if their practising certificate has been varied, suspended, cancelled or not renewed, the Board is required to notify the person of this event. If s 11(1) was meant to create an offence of strict liability, Parliament would not have obliged the Board to notify practitioners of their practising status. Section 81 of the Uniform Law requires the Board to give written notice of any variation, suspension or cancellation of a practising certificate to the practitioner. Section 77 of the Application Act relevantly provides that for the purposes of s 100(1) of the Uniform Law, an application for review by VCAT must be made within 28 days after the day on which the decision of the Board is notified to the applicant.^[32]

(e) If s 11(1) created a strict liability offence with a defence of honest and reasonable mistake, the level of enquiry required of each practitioner would depend on what he or she honestly believed was appropriate. This would increase the risk of the public dealing with unqualified practitioners.

(f) The Board’s own conduct demonstrates that it does not regard s 11(1) as a strict liability offence. In the Board’s correspondence of 11 December 2018, Ms Gaffey alleged that the applicant had represented an entitlement to engage in legal practice when ‘you knew, or ought reasonably to have known, that you were a disqualified person’.

(g) The purpose of s 11(1) is predominantly to protect the public rather than punish lawyers.^[33] That tends against a finding that it creates an offence of strict liability.

(h) In Batten, the correspondence between the Law Institute of Victoria and Mr Batten that was admitted in evidence went to the issue of Mr Batten’s knowledge that he was not entitled to engage in legal practice. The offence considered in that case, which was analogous to that created by s 11(1), was therefore not one of strict liability, but rather, one which contained a mental element.

(i) The Explanatory Memorandum to pt 2.1 of the Uniform Law did not indicate that s 11(1) created a strict liability offence. A report of the Senate Standing Committee for the Scrutiny of Bills published in 2002 indicated that strict liability should not be imposed merely for administrative convenience or where it is necessary to rely on information from third parties (such as, the applicant submitted, the Board) to avoid liability.

96. In oral argument, the applicant sought leave to raise a new point of law, which the Commissioner did not oppose. The Commissioner also indicated that she was in a position to address the Court on the issue. Accordingly, the Court granted leave for the applicant to raise the new point: namely, that the rebuttable presumption in s 12(3) of the Uniform Law tends against any construction of s 11(1) that does not require a mental element. In short, the applicant submitted that in the criminal law, typically a rebuttable presumption may be rebutted by adducing evidence which goes to the mental state of the accused. Thus, the creation by s 12(3) of a ‘rebuttable presumption (for the purposes of section 11(1)) that the person represented that he or she is entitled to engage in legal practice’ suggests that the mental state of the person is relevant where that person is charged with contravening s 11(1). That, in turn, suggests that s 11(1) is not an offence of strict liability.

Commissioner’s submissions

97. The Commissioner accepted that there is a presumption that a mental element is an essential ingredient of a statutory offence. However, having regard to the factors set out in He Kaw Teh and generally relying upon the reasoning of the judge, the Commissioner submitted the presumption is rebutted in respect of s 11(1).
98. The Commissioner emphasised that s 11(1) sits within pt 2.1 of the Uniform Law, which is protective and regulatory in nature, and outside the general criminal law. The Commissioner relied on the following passage from Proudman v Dayman:

If the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered. But other considerations arise where in matters of police, of health, of safety or the like the legislature adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced. In such cases there is less ground, either in reason or in actual probability, for presuming an intention that the general rule should apply making honest and reasonable mistake a ground of exoneration, and the presumption is but a weak one.

Indeed, there has been a marked and growing tendency to treat the prima facie rule as excluded or rebutted in the case of summary offences created by modern statutes, particularly those dealing with social and industrial regulation.^[34]

99. The Commissioner agreed with the judge’s conclusion that, if the defence of honest and reasonable mistake was established, no offence under s 11(1) could be made out. The defence therefore ameliorated the effect of construing s 11(1) as a strict liability offence.
100. In this context, the Commissioner submitted that to be guilty of contravening s 11(1), a person must:

(a) represent that they are entitled to engage in legal practice; and

(b) do so at a time when they are not a qualified entity.

101. The defence of honest and reasonable mistake was said to be particularly relevant to the second of these elements. If the person could establish that they honestly and reasonably, but mistakenly, believed that they were a qualified entity at the time of making the representation, they would not contravene s 11(1).
102. Finally (and relatedly), the Commissioner submitted that the rebuttable presumption in s 12(3) was not relevant to whether any mental element was required for the commission of an offence under s 11(1). This is because the presumption in s 12(3) could be rebutted by adducing evidence of matters other than the mental state of the accused, such as the objective circumstances surrounding the representation. Therefore, the existence of the presumption did not mean that the offence in s 11(1) contained a mental element.

Consideration

103. The applicant is correct to say that it is presumed that every statutory offence contains a mental element, and that the presumption may only be rebutted by express words or necessary implication.^[35] However, he is incorrect to say that the factors considered in He Kaw Teh do not apply until the presumption is rebutted. That is evident from the language used by Gibbs CJ (with whom Mason J agreed) in that case, where, after referring to the ‘presumption that mens rea ... is an essential ingredient in every offence’,^[36] his Honour said:

In deciding whether the presumption has been displaced by s 233B(1)(b), and whether the Parliament intended that the offence created by that provision should have no mental ingredient, there are a number of matters to be considered. First, of course, one must have regard to the words of the statute creating the offence. ...

The second matter to be considered is the subject-matter with which the statute deals. ...

A third consideration is that which was mentioned in Lim Chin Aik v The Queen:

• It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly ... which will promote the observance of the regulations. Unless this is so, there is no reason in penalizing him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.^[37]

104. Later in his reasons, Gibbs CJ also referred to the maximum sentence that a contravention of one of the statutory offences under consideration in that case (the offence of importing a prohibited import) would attract, namely life imprisonment. His Honour said that this factor tended to suggest that guilty knowledge was intended to be an element of the offence.^[38]
105. The approach of Gibbs CJ to determining whether a statutory offence contains a mental element was consistent with the approach adopted by Wilson J, Brennan J and Dawson J.^[39]
106. It can be seen from the passage of He Kaw Teh set out above that in this case, the judge correctly identified the following factors as relevant to determining whether the presumption of mens rea has been rebutted: the text of the statute, its subject matter (including the relevant maximum penalty), and the utility of imposing strict liability. We agree with her Honour’s analysis, and her view that each of these factors militates for the displacement of the presumption.
107. For the following reasons, none of the other, more specific arguments the applicant raised in this Court, have merit.
108. First, neither Pwr nor Lane support the applicant’s case.
109. In Pwr, the Supreme Court of the United Kingdom had to determine whether a statutory offence prohibiting a person in a public place from carrying or displaying an article ‘in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation’ was an offence of strict liability. In answering the question, consistently with the principles set out above, the Court first noted the presumption of mens rea, before turning to consider whether that presumption was displaced, by considering the words of the statute; the context of the provision, including its legislative history, and the relevant maximum penalty; as well as the purpose of the statute. One factor which led the Court to conclude that the offence was one of strict liability was that the words ‘arouse reasonable suspicion’ denoted an objective requirement. As the Court said:

[T]here is difficulty marrying a subjective requirement, such as knowledge or intention, with the objective requirement of arousing ‘reasonable suspicion’.

... [Counsel’s] primary submission was that one should read into the offence ‘knowingly’ so that the relevant words would read ‘so as to knowingly arouse reasonable suspicion’. That, however, makes little sense because whether reasonable suspicion is aroused may be said to be outside the control of the defendant so that it would be odd to require that the defendant knows that he or she is arousing that suspicion.^[40]

110. Evidently, and contrary to the applicant’s submission, the Court was not setting out a rule that in order for the presumption of mens rea to be rebutted, there must exist words in the relevant statutory provision which import an ‘objective standard’ (as the applicant put it). Rather, the existence of such words was one factor which led the Court in Pwr to conclude the offence was one of strict liability. The same can be said of Lane, which concerned whether a statutory offence prohibiting a person from entering into a funding arrangement where they had ‘reasonable cause to suspect’ that the funds would be used for terrorism, required the accused to actually suspect that the funds would be so used. The Supreme Court of the United Kingdom held that it did not, applying a similar approach to that taken in Pwr.
111. Second, the applicant’s submission that ss 10(1), 11(1) and 11(2) of the Uniform Law create offences which gradually decrease in seriousness and maximum penalty, but which all include a mental element, is no more than a bare assertion.
112. Third, it may be accepted that the Uniform Law obliges the Board to notify practitioners of certain decisions it makes in respect of their practicing status. However, it is not true, as the applicant submits, that if s 11(1) were meant to create an offence of strict liability, Parliament would not have placed such an obligation on the Board. The applicant’s submission arbitrarily takes an ‘all or nothing’ approach to the question of what obligations fall upon whom. There is nothing inherently inconsistent with the statutory scheme obliging the Board to notify a practitioner of a change in their practising status, yet at the same time, obliging the practitioner to ensure that any belief they hold that they are still entitled to practise while awaiting the Board’s determination of a renewal application, is a reasonable one. That obligation may be met by, for example, making reasonable enquiries after an unusual amount of time has elapsed since a practitioner submitted their renewal application.
113. Rather than increasing the risk of the public dealing with unqualified practitioners, a regime which imposes obligations on both practitioners and the Board, as opposed to on the Board alone, is apt to decrease the risk that the public deals with unqualified practitioners. It is also wrong to say that if s 11(1) were a strict liability offence, then the obligation of each practitioner to make enquiries would depend on what they honestly believed to be appropriate. That submission fails to recognise that the defence of honest and reasonable mistake contains an objective component: namely, that the mistaken belief must be held on reasonable grounds.
114. Fourth, we adopt the two bases on which the judge rejected the applicant’s reliance on Batten (see [93(d)] above). Having had his argument rejected on these bases, particularly the basis that the reasons in Batten were also consistent with the offence being one of strict liability subject to a defence of honest and reasonable mistake, the applicant proceeded to rely on the following passage from Batten:

It must also be borne steadily in mind, in my view, that the appellant was on notice from the Law Institute from 2001 that it was inappropriate for him to issue any legal documents with or without a Power of Attorney. I permitted such evidence to be given by [the investigator] not to show any tendency on the part of the appellant, but rather, in relation to the issue that [the appellant] had clear knowledge that such a course of action was inappropriate. I found the evidence of the appellant to be somewhat glib when he stated that he took the complaint prepared by him to the Court and the Court gave him authority to issue such document after the inspection of the Power of Attorney.^[41]

115. The applicant submitted that ‘[i]f the equivalent of s 11(1) in Batten had been considered a strict liability offence this evidence as to Mr Batten’s belief as to the legal position would have been irrelevant’. Aside from reiterating that Batten was not a case where it was put in issue whether the relevant offence was one of strict liability, we observe that:

(a) Even if the offence in Batten had been considered to contain a mental element such as knowledge, evidence of Mr Batten’s belief or knowledge of the law would still be incapable of going to that element, as a mistaken belief of law will generally not exculpate an accused.^[42] Accordingly, the passage emphasised by the applicant does not assist on the question of whether or not the offence contains an element of mens rea.

(b) The passage emphasised by the applicant was in the part of the judge’s reasons dealing with the offence of engaging in legal practice while unqualified, rather than the offence of representing an entitlement to engage in legal practice.

(c) In any event, the last sentence of the passage leaves open the possibility that the evidence went to Mr Batten’s credibility.

116. Fifth, the focus in the exercise of construction must be the statute itself. The Senate report relied upon is not expressed to bear on the construction of the Uniform Law, and indeed predates it by over a decade. Similarly, the applicant’s reliance on Ms Gaffey’s statement in her 11 December 2018 correspondence that ‘when you engaged in this conduct you knew, or ought reasonably to have known, that you were a disqualified person’ is of little assistance. Further, the correspondence was sent at a time when the applicant was alleged to have committed two offences: practising while unqualified, and representing an entitlement to practise. The correspondence did not make clear to which of these two offences Ms Gaffey’s statement pertained.
117. Sixth, the existence of a rebuttable presumption in s 12(3) of the Uniform Law, that a person who takes or uses a particular title is presumed to have represented an entitlement to engage in legal practice, does not itself bear on whether the person needs to have had any particular state of mind when making a representation to be guilty of contravening s 11(1). As the Commissioner submitted, the presumption in s 12(3) could be rebutted by, for example, adducing evidence of the objective surrounding circumstances of the representations made by the accused person, so as to result in a conclusion that despite using a title such as ‘attorney’, ‘counsel’ or ‘proctor’, no representation was made that the person was entitled to engage in legal practice.
118. Finally, we accept the Commissioner’s submission that the protective and regulatory nature of s 11(1) within pt 2.1 of the Uniform Law tends against the presumption of an element of mens rea, consistent with the comments of Dixon J in Proudman set out at [98] above.
119. For these reasons, proposed ground 1 is without merit.

Proposed ground 2

120. Proposed ground 2 is:

Her Honour erred at law in concluding that Grounds 2 and 3 of the review application^[43] had not been made out as [the County Court judge] had incorrectly concluded that at law it did not matter what the Applicant intended his words or actions would convey when determining whether he represented an entitlement to engage in legal practice on 24 January 2018 by producing a certificate of admission and the evidentiary certificate in breach of s 11(1) of the Uniform Law.

121. As the applicant accepted, this proposed ground depends upon the success of proposed ground 1. Given that the applicant has been unsuccessful on proposed ground 1, it is unnecessary to address proposed ground 2.

Proposed ground 3

122. Proposed ground 3 is the first of a number of grounds by which the applicant contends that the judge erred by failing to find that a conclusion of the County Court judge was ‘unreasonable’. The finding of the County Court judge that is the subject of proposed ground 3 is the finding that the applicant produced a certificate of solicitor. Proposed ground 3 is in the following terms:

Her Honour erred at law in concluding that Ground 8 of the review application^[44] had not been made out as it was unreasonable for [the County Court judge] to be satisfied beyond reasonable doubt on the evidence and material before her that on 24 January 2018 the Applicant had produced a certificate of solicitor.

Reasons of the judge

123. The judge observed that the parties had approached the grounds of review dealing with unreasonableness on the basis that a decision that is legally unreasonable would involve jurisdictional error. She said that a decision may be legally unreasonable when it is illogical or irrational, lacks an evident and intelligible basis or where there is no evidence to support it.^[45]
124. The judge considered that the applicant’s contention that it was unreasonable for the County Court judge to have been satisfied beyond reasonable doubt that he had produced a certificate of solicitor was advanced ‘not on a true basis of illogicality or unreasonableness but upon appellate notions of insufficient evidence for conviction’.^[46]
125. Nonetheless, the judge proceeded to address the applicant’s submissions. She referred to the conflict in the evidence of the two direct witnesses on whether a certificate of solicitor was produced. She recorded the applicant’s position that the County Court judge should have had a reasonable doubt that he produced such a certificate, because Ms Russo’s contemporaneous notes did not record that he had produced such a certificate; he had not complied with the other procedural steps that a person filing documents as a litigation guardian would be expected to comply with; and the summons that he ultimately filed in February 2018 was consistent with his evidence of what had transpired.^[47]
126. The judge observed that the County Court judge’s finding was based upon her acceptance of the evidence of Ms Russo, Ms Price and Ms Gaffey. She said that the absence of a reference to the certificate of solicitor in Ms Russo’s notes was not a reason to reject Ms Russo’s evidence that such a document had been produced. In other respects, Ms Russo’s recollection was borne out by other evidence. The County Court judge had rejected the applicant’s explanation of what occurred on 24 January 2018 as ‘inherently unlikely’. The County Court judge’s reasons set out a basis upon which it could logically be concluded that the certificate was produced, and be so satisfied beyond reasonable doubt.^[48]
127. The judge therefore rejected the applicant’s contention that it was unreasonable for the County Court judge to have been satisfied beyond reasonable doubt that he had produced a certificate of solicitor. She concluded her treatment of this part of the applicant’s case by emphasising that the proceeding before her was not an appeal against conviction.^[49]

Applicant’s submissions

128. In this Court, the applicant maintained his submission that it was unreasonable for the County Court judge to be satisfied beyond reasonable doubt on the evidence before her that he had produced a certificate of solicitor.
129. The applicant submitted that legal unreasonableness will exist when there is a lack of evidence or material upon which to found central conclusions of fact within the process of reaching a relevant state of satisfaction.^[50] Relying on the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Eden, he submitted that a decision will also be legally unreasonable when a court cannot comprehend from the reasons how the decision was arrived at, or the justification for the decision is not sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.^[51]
130. The applicant submitted that County Court judge’s finding that he had produced a certificate of solicitor was ‘legally unreasonable’ because there was ‘simply a lack of evidence or material upon which [the County Court judge] could have been satisfied, beyond reasonable doubt, if she had been acting reasonably, that I had produced a certificate of solicitor’. He submitted that the evidence in the County Court ‘did not stack up’ to establish that he had produced such a certificate and indeed, indicated that it was more probable that he did not do so.
131. The applicant relied upon several matters in support of this submission:

(a) no certificate of solicitor was adduced in evidence;

(b) the only evidence that he had produced such a certificate was the uncorroborated evidence of Ms Russo, who could not recall what the document showed and did not refer to it her notes;

(c) he had consistently denied producing such a certificate; and

(d) there was no reason for him to have produced such a certificate because:

(i) there was no evidence that his mother was a person under a disability to warrant a litigation guardian; and

(ii) to make the habeas corpus application, he could have personally have filed a summons without the need for a practising certificate pursuant to the Supreme Court’s habeas corpus jurisdiction.

132. The applicant further contended that the prosecution had relied solely on Ms Russo’s evidence, which was ‘totally uncorroborated’ and therefore should have been scrutinised ‘with great care’. He submitted that if a jury had been involved, it would have been appropriate for a Liberato^[52] direction and a Murray^[53] direction to be given, and that the judge was required to comply with the principles from these cases.
133. The applicant submitted that on the judicial review application, the judge had erred at law in accepting the County Court judge’s conclusion that he had produced a certificate of solicitor. He maintained that he should have been acquitted.

Commissioner’s submissions

134. The Commissioner emphasised that the applicant’s submissions before the judge and in this Court tended to invite a merits review of the reasoning of the County Court judge. The Commissioner noted that the judge had proceeded on the basis of an assumption that relief could be granted on the basis of legal unreasonableness if there was no evidence to support the impugned finding.
135. The Commissioner submitted that in determining whether the applicant had produced a certificate of solicitor, it was necessary for the County Court judge to make findings regarding the credibility of the applicant and Ms Russo and consider the context for their discussions on 24 January 2018. The County Court judge had found that the applicant lacked credibility, that his account was ‘inherently unreliable’ and contained recent invention, that he was evasive and that his communications with the Board were lacking in candour. In combination with these findings, Ms Russo’s evidence of what occurred provided a clear basis for concluding that the applicant had provided her with the certificate of solicitor. The County Court judge had set out a logical basis for accepting Ms Russo’s evidence and thus her conclusion that the applicant produced a certificate of solicitor. As a result, there was no substance to proposed ground 3.

Consideration

136. We consider that the judge did not err in rejecting the applicant’s contention that the County Court judge’s finding that he had produced a certificate of solicitor was legally unreasonable.
137. We assume, for the purpose of this application, that the applicant is correct to assert that relief could be granted on the basis that the County Court judge’s finding was ‘legally unreasonable’ if there was a ‘lack of evidence or material upon which [the County Court judge] could have been satisfied, beyond reasonable doubt, if she had been acting reasonably’, that he produced a certificate of solicitor.
138. There was no such lack of evidence. Ms Russo was consistent in her evidence that the applicant had produced a certificate of solicitor in their meeting on 24 January 2018. Her evidence was that he had done so in the context of presenting an amended habeas corpus application, which described the applicant as his mother’s litigation guardian. Ms Russo said that when the applicant presented the amended application and told her that he was his mother’s litigation guardian, she told him the documents that were needed to proceed as a litigation guardian under Order 15 of the Rules, including a signed certificate of solicitor. He then produced each of those documents, including the certificate of solicitor.
139. To the extent that the applicant contends that the judge should have found that the County Court’s judge’s conclusion was unreasonable because her ruling did not disclose how she reached it, or a sufficient justification for the conclusion, we reject that assertion.
140. The County Court judge’s reasons disclose that she accepted, and acted upon, the evidence of Ms Russo, and that she rejected the applicant’s evidence to the contrary. The County Court judge recorded that the applicant was generally evasive in his evidence and that he was lacking in credibility. She found that it did ‘not ring true’ that the applicant would return to the Registry on 24 January 2018 if he was not in a position to address the concerns that Ms Russo had raised the previous day.
141. As for the applicant’s complaints based on the principles in Liberato and Murray, the County Court judge’s ruling shows that she recognised, and made repeated reference to, the criminal standard of proof. She did not base her finding of guilt merely on her preference for Ms Russo’s evidence over the applicant’s evidence. In general, she searched for objective evidence to support the evidence of Ms Russo. The judge also considered, and gave logical reasons for rejecting, a number of matters said to impact on Ms Russo’s reliability or credibility, including the absence of a reference to a certificate of solicitor in her notes, and her use of phrase, ‘words to the effect’ in her statement. We note, for completeness, that in Victoria, there is no statutory obligation to give a Murray direction.^[54]
142. In truth, the applicant’s submission was premised on ignoring any evidence contrary to his own evidence, as well as the credit findings against him. His submissions in this Court, like the submissions he made before the judge, seek to involve this Court in a review of the merits of the County Court judge’s decision under the guise of an evaluation of legal unreasonableness.
143. For these reasons, we consider that proposed ground 3 is without merit.

Proposed ground 4

144. Proposed ground 4 contends that the judge erred by failing to find that the County Court judge ‘unreasonabl[y]’ concluded beyond reasonable doubt that he made statements to Registry staff to the effect that he was a practising solicitor. It is in the following terms:

Her Honour erred at law including [sic] that Ground 9 of the review application^[55] had failed as it was unreasonable for [the County Court judge] to be satisfied beyond reasonable doubt on the evidence before her that the Applicant on 24 January 2018 had made statements to Registry staff to the effect that he was a practising solicitor.

Reasons of the judge

145. The judge rejected the applicant’s submission that it was unreasonable for the County Court judge to have accepted the evidence of Ms Russo that he made statements to her to the effect that he was a practising solicitor. She concluded that the applicant’s contention that the County Court judge could not be satisfied to the requisite standard in the absence of contemporaneous documentation or corroboration was not supported by legal principle. By submitting that a conviction on uncorroborated evidence was ‘unsafe’ as well as unreasonable, the applicant had invoked language more applicable to a criminal appeal than a judicial review application.^[56]

Applicant’s submissions

146. The applicant submitted that in finding that he had made statements to the effect that he was a practising solicitor, the County Court judge had relied only upon the uncorroborated evidence of Ms Russo. No one else had heard him make any such statement and there was no contemporaneous record or audio recording of his conversation with Ms Russo.
147. Further, the first time Ms Russo alleged that he had made such a statement was in her 15 July 2019 statement (18 months after the conversation). As we have set out in [46] above, Ms Russo said in that statement that the applicant had said ‘words to the effect’ that he was a practising solicitor and that he had been working at a community legal centre.
148. The applicant emphasised Ms Russo’s use of the words ‘to the effect of’ in her statement. He submitted that she had not given evidence of the actual words he had used. Ms Russo could have misheard him or subjectively misinterpreted whatever words he used. Human beings are frequently unreliable and their powers of recollection are imperfect.
149. Further, the applicant submitted that the County Court judge had again failed to consider that the principles in Liberato and Murray applied to the case.^[57]
150. The applicant submitted that in these circumstances, there was a ‘lack of evidence or material’ upon which the County Court judge could have been satisfied that he made statements to Ms Russo to the effect that he was a practising solicitor.

Commissioner’s submissions

151. The Commissioner relied upon the same submissions it made in response to proposed ground 3, as set out above. Further, the Commissioner submitted that Ms Russo’s direct evidence of what occurred on 24 January 2018 provided a clear basis for concluding that the applicant made a statement to the effect that he was a practising solicitor, particularly in the context of providing his certificate of admission and most relevantly the evidentiary certificate. The County Court judge had set out a logical basis for accepting Ms Russo’s evidence and for her satisfaction beyond reasonable doubt that the applicant made the statement that he was a practising solicitor. As a result, there was no substance to proposed ground 4.

Consideration

152. We consider that the judge did not err in rejecting the applicant’s contention that the County Court judge’s finding that he said words to the effect that he was a practising solicitor was legally unreasonable.
153. Again, we assume, for the purpose of this application, that the applicant is correct to assert that relief could be granted on the basis that the County Court judge’s finding was ‘legally unreasonable’ if there was a ‘lack of evidence or material’ upon which the County Court judge could have been satisfied that he made statements to the effect that he was a practising solicitor.
154. Once again, there was no such lack of evidence. Ms Russo’s consistent evidence was that the applicant had told her that he had a volunteer practising certificate and was currently volunteering at a community legal centre. The fact that Ms Russo could not remember the precise words used by the applicant when she came to make her statement in July 2019 is both unsurprising, and a matter of no moment, given the framing of the charge. As the County Court judge found, Ms Russo’s evidence was supported by other aspects of her interactions with the applicant, including that the applicant had produced the evidentiary certificate which (incorrectly) recorded that he held a current volunteer practising certificate.
155. To the extent that the applicant contends that the judge should have found that the County Court’s judge’s finding about the statements he made was unreasonable because her ruling did not disclose how she reached it, or a sufficient justification for the conclusion, we again reject that assertion.
156. The County Court judge’s reasons disclose that she accepted, and acted upon, the evidence of Ms Russo, and that she rejected the applicant’s evidence to the contrary. As we have noted above, the County Court judge recorded that the applicant was generally evasive in his evidence and that he was lacking in credibility. She found that his explanation for why he had produced the evidentiary certificate was a recent invention.
157. For the reasons we have given in connection with proposed ground 3, we reject the applicant’s submission that the County Court judge failed to act in accordance with the principles underpinning Liberato and Murray.
158. For these reasons, we consider that proposed ground 4 is without merit.
159. As a result of our conclusions on proposed grounds 3 and 4, it is not necessary to address the Commissioner’s notice of contention.

Proposed ground 5

160. Proposed ground 5 contends that the judge erred by finding that the applicant was not engaging in legal practice as a qualified entity under s 6(d) of the Uniform Law when he made the habeas corpus application. It is in the following terms:

Her Honour erred at law in failing to grant relief on the basis of Grounds 10 and 11 of the review application^[58] as it was unreasonable for [the County Court judge] to be satisfied beyond reasonable doubt that for the purpose of filing a habeas corpus application on behalf of his mother naming her as a party to the application the Applicant was an unqualified entity and [the County Court judge] had failed to consider the submissions of the Applicant on point which were worthy of consideration.

Reasons of the judge

161. The judge observed that it was common ground that the applicant did not fall within paragraph (a) of the definition of ‘qualified entity’ in s 6 of the Uniform Law because he did not hold a current practising certificate (and therefore was not an ‘Australian legal practitioner’ as defined).^[59]
162. The judge considered the applicant’s submission that he was nonetheless within the definition of ‘qualified entity’ because he was ‘an individual engaged in legal practice under the authority of a law of the Commonwealth or of a jurisdiction other than this Law or the Uniform Rules’ and therefore fell within paragraph (d) of the definition. The applicant’s submission was that he was ‘engaged in legal practice’ when he was attempting to file the habeas corpus application, and that he was authorised to do so by Order 57 of the Rules, a rule of civil procedure of Victoria.^[60]
163. The judge set out the terms of Order 57, which is headed ‘Habeas corpus’. It relevantly provides:

57.02 Application for writ

(1) A writ^[61] shall not issue except by order of the Court.

(2) An application for a writ shall be made to a Judge of the Court.

(3) The person making the application, whether or not that person is the person restrained, shall be plaintiff and the person against whom the issue of the writ is sought shall be defendant in the proceeding.

(4) The application shall be made on notice to the defendant.

(5) Notice shall be by summons ... .

(6) The application shall be supported by an affidavit by the person restrained showing that it is made at that person’s instance and stating the nature of the restraint.

(7) Where the person restrained is unable for any reason to make the affidavit referred to in paragraph (6)—

(a) the affidavit may be made by another person; and

(b) that affidavit shall show that the person restrained is unable to make the affidavit.

164. The judge held that the applicant’s argument was misconceived and without merit. Order 57 does not say anything about authorising a person to engage in legal practice. Instead, it permits a person who is not the subject of restraint (as well as the person who is restrained) to be a plaintiff in an application for a writ of habeas corpus. It sets out certain affidavit requirements that are to be met in those circumstances. Although the unrestrained person seeking the writ on behalf of another person may be self-represented or may choose to be legally represented, nothing in Order 57 changes the status of an applicant who is not a qualified entity or authorises them to engage in legal practice. While the applicant was entitled to be a self-represented plaintiff bringing a claim against a hospital restraining another person, Order 57 did not permit him to also act on behalf of the restrained person or file documents naming them as a party unless he was a qualified entity.^[62]
165. The judge expressed the view that commencing a proceeding pursuant to Order 57 did not necessarily constitute engaging in legal practice. Further, she described s 6(d) as applying to persons qualified under Commonwealth law or in a jurisdiction other than Victoria.^[63]
166. The judge observed that it was correct to say that the County Court judge’s ruling had not dealt with the applicant’s submission on this point, and that a failure to consider submissions advanced by a party that were worthy of consideration may amount to an error of law.^[64] However, she doubted that the applicant’s submission was worthy of consideration. If considered, it had no real prospect of success and so could not have affected the County Court judge’s ultimate decision. The judge exercised her discretion not to grant relief on this ground.^[65]

Applicant’s submissions

167. The applicant submitted that the ‘critical error’ made by the judge is that Order 57 is not the source of the Supreme Court’s jurisdiction for the bringing of a habeas corpus application. Instead, the source of the jurisdiction derived from the common law. Pursuant to that jurisdiction, the Court could authorise the applicant to file a summons seeking habeas corpus without a practising certificate and without any need for him or his mother to sign the summons. That the Court ultimately received the summons demonstrates that this is what the Court allowed him to do. The Court’s common law habeas corpus jurisdiction is broad, flexible and adaptable and the Court could (and did) dispense with any alleged requirement that he hold a practising certificate before filing the application. That Order 57 did not permit the applicant to file a document naming his mother as a party was not to the point because the Court’s jurisdiction was not derived from Order 57.
168. The applicant submitted that there was a serious point to be considered that his act of preparing and seeking to file the summons naming his mother as a party could render him someone who was ‘engaged in legal practice’ for the purpose of paragraph (d) of the definition of ‘qualified entity’. As to the meaning of that phrase, the applicant relied upon the statement of JD Phillps J in Cornall v Nagle, that a person who is neither admitted to practise nor enrolled as a barrister or solicitor may act or practise as a solicitor in any of the following ways:

(1) by doing something which, though not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor. ...

(2) by doing something that is positively proscribed by the Act or by Rules of Court unless done by a duly qualified legal practitioner. ...

(3) by doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law. For present purposes, it is unnecessary to go beyond the example of the giving of legal advice as part of a course of conduct and for reward.^[66]

169. Additionally, the applicant relied upon passages from the decisions in Orrong Strategies Pty Ltd v Village Roadshow^[67] and Legal Services Commissioner v Walter.^[68] In the passage from the first case, Habersberger J referred to Victorian Lawyers RPA Ltd v Bailey,^[69] and summarised a finding in that case that a defendant had engaged in legal practice in circumstances where he had engaged in conduct that included ‘issu[ing] three Magistrates’ Court complaints on behalf of clients, in which his office was given as the plaintiff's address for service and costs were claimed’.^[70] In the passage from the second case, Daubney J of the Supreme Court of Queensland listed various activities undertaken by a person who was alleged to have engaged in legal practice when not an Australian legal practitioner, which included drafting court documents on behalf of parties to litigation.^[71]
170. Assuming that his act of filing an originating document was ‘engaging in legal practice’, the applicant submitted that he was authorised to do so under ‘the Supreme Court’s common law habeas corpus jurisdiction’, which made him a ‘qualified entity’ pursuant to paragraph (d) of the definition.
171. The applicant submitted that before the County Court judge, he had made a submission that he was a qualified entity within paragraph (d) of the definition. The prosecution made no submissions on this point. The County Court judge had failed to consider this submission.
172. The applicant submitted that the judge was wrong at law to use her discretion not to grant relief upon this ground. His submission to the County Court judge was worthy of consideration and had it been considered, he would have been required to be acquitted.

Commissioner’s submissions

173. The Commissioner submitted that the judge was correct to exercise her discretion to refuse relief in respect of any failure by the County Court judge to properly consider the applicant’s argument that he was a ‘qualified entity’. The applicant’s reliance on paragraph (d) of the definition of ‘qualified entity’ was misconceived. No authorisation provided by the Supreme Court in respect of the applicant’s proposed habeas corpus application could be construed as an authority to ‘engage in legal practice’.
174. The Commissioner submitted that conduct could only be described as ‘engaging in legal practice’ if it involved performing tasks that may only be performed by a legal practitioner; or that are usually performed by a legal practitioner and are done in such a way as to justify the reasonable inference that the person doing the task is a legal practitioner.
175. The Commissioner noted that there are a number of tasks that are typically performed by legal practitioners but may be performed by non-lawyers in specifically authorised circumstances. For example, the Commissioner referred to an appearance on behalf of a party by a ‘professional advocate’ pursuant to s 62 of the Victorian Civil and Administrative Tribunal Act 1998. Such an appearance would not constitute ‘engaging in legal practice’. A representation by a person that they were entitled to appear as a professional advocate could not be suggested to be a breach of s 11(1) of the Uniform Law.

Consideration

176. For the following reasons, we consider that there was no error in the judge’s decision to refuse to grant relief to the applicant on the basis that his submission that he came within paragraph (d) of the definition of ‘qualified entity’ in s 6 of the Uniform Law, had the County Court judge considered it, had no real prospect of success.
177. Even if it is assumed in the applicant’s favour that the act of filing a habeas corpus application constituted ‘engaged in legal practice’ — a matter on which we express no view — neither Order 57 of the Rules, nor the common law, provided the applicant with any ‘authority’ to engage in legal practice.
178. The ‘authority’ to engage in legal practice to which paragraph (d) of the definition of ‘qualified entity’ refers must be understood in the context of the broader scheme of the Uniform Law.
179. The stated objective of the Uniform Law is to promote the administration of justice and an efficient and effective Australian legal profession, including by ensuring that lawyers are competent and maintain high ethical and professional standards in the provision of legal services, and by enhancing the protection of clients of law practices and the protection of the public generally.^[72] The objectives of pt 2.1 of the Uniform Law, which contains the offences in ss 10 and 11, are to ensure, in the interests of the administration of justice, that legal work is carried out only be those who are properly qualified to do so; and to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so.^[73]
180. Consistent with these objectives, the Uniform Law limits those who can engage in legal practice to ‘qualified entities’. The definition of ‘qualified entity’ has five separate limbs, each of which identifies a category of individuals and entities that Parliament must be taken to regard as ‘properly qualified’ to engage in legal practice. Those categories include Australian legal practitioners (defined to mean Australian lawyers who hold a current Australian practising certificate);^[74] law practices (defined to mean sole practitioners, law firms, community legal services, and incorporated and unincorporated legal practices);^[75] certain foreign lawyers;^[76] and entities engaged in a kind of legal practice specified in the Uniform Rules, acting in accordance with any applicable requirements in the Uniform Rules.^[77]
181. The final category is that contained in paragraph (d) of the definition of ‘qualified entity’ — ‘an individual engaged in legal practice under the authority of a law of the Commonwealth or of a jurisdiction, other than this Law or the Uniform Rules’. It will be recalled that ‘jurisdiction’ is defined to mean a State, the Australian Capital Territory or the Northern Territory. Paragraph (d) therefore refers to individuals engaged in legal practice under the authority of a law of the Commonwealth, of a State, of the Australian Capital Territory or of the Northern Territory, other than the Uniform Law or the Uniform Rules.
182. On the applicant’s construction of paragraph (d), it captures any person who seeks to file a writ of habeas corpus in the Supreme Court of Victoria. Such a construction would fly in the face of the express protective purpose of the scheme, and the offences it creates. We prefer an alternative construction of paragraph (d) of the definition, which accords with that protective purpose.
183. Under that construction, paragraph (d) reflects and accommodates the fact that various lawyers have a statutory entitlement to engage in legal practice in a particular setting without holding a current practising certificate.^[78] For example, s 55Q(1) of the Judiciary Act 1903 (Cth) entitles Australian Government lawyers to practise without a practising certificate. Further, s 16 of the Director of Public Prosecutions Act 1983 (Cth) entitles the Director of Public Prosecutions and members of staff of the Office of the Director of Public Prosecutions to practise in a federal court and a court of a State or Territory ‘whether or not he or she would, but for this section, be entitled to practise in that court’.^[79] It cannot have been Parliament’s intention that such individuals could be prosecuted for engaging in legal practice or representing an entitlement to practise simply because they do not hold a current practising certificate. Paragraph (d) ensures that this cannot occur.
184. The terms of Order 57 of the Rules, unlike the terms of the statutes to which we have referred in the preceding paragraph, do not authorise any category of lawyers (who do not hold a current practising certificate) to engage in legal practice. Nor does ‘the Supreme Court’s common law habeas corpus jurisdiction’. Neither renders the applicant a ‘qualified entity’ by virtue of paragraph (d) of the definition.
185. This conclusion is reinforced by the applicant’s status as a ‘disqualified person’ under the Uniform Law. Section 6 of the Uniform Law defines a disqualified person to include:

     (b) a person who has been refused the grant or renewal of an Australian practising certificate and who has not been granted an Australian practising certificate at a later time[.]

186. Division 2 of pt 3.9 of the Uniform Law contains various prohibitions and other provisions concerning ‘disqualified persons’ and ‘disqualified entities’. Those provisions tend to reveal the artificiality of the applicant’s construction of paragraph (d) of the definition of ‘qualified entity’. It would be an odd result indeed if a person who became a disqualified person because they were refused a practising certificate was nevertheless a qualified entity and thus permitted to engage in legal practice and represent that they were entitled to do so.
187. We therefore consider that proposed ground 5 is without merit.

Conclusion

188. For the reasons we have given, we consider that each proposed ground of appeal is without merit and none of them has real (as opposed to fanciful) prospects of success.^[80] As a result, granting an extension of time to the applicant to file an application for leave to appeal would be futile. We therefore refuse the application for an extension of time to seek leave to appeal.

---

---

^[1] The second respondent, the County Court of Victoria, did not participate in the proceeding.

^[2] The Uniform Law is sch 1 of the Legal Profession Uniform Law Application Act 2014 (‘Application Act’).

^[3] The reasons in the judicial review application were delivered on 13 July 2023: Giurina v McLeay [2023] VSC 397 (‘Reasons’).

^[4] The application for leave to appeal and an application for an extension of time were filed on 14 September 2023.

^[5] Section 11(2) contains an equivalent prohibition for a director, partner, officer, employee or agent of an entity who engages in such conduct when the entity is not a qualified entity. The prescribed penalty is 50 penalty units.

^[6] The reference to the Uniform Rules is a reference to Legal Profession Uniform General Rules 2015. We will refer to them as the Uniform Rules.

^[7] Ms Russo referred to this document as a ‘practising certificate’, but the document she identified and which was tendered was the evidentiary certificate that had been copied by Ms Price.

^[8] This was a reference to r 17(2) of the Uniform Rules.

^[9] Applying He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 (‘He Kaw Teh’).

^[10] This claim was based on r 17(2) of the Uniform Rules.

^[11] The judge referred to ‘the 28^th of July 2017 letter’. We assume she intended to refer to the 12 July 2017 correspondence which the Board emailed to the applicant (to which the applicant replied, on 28 July 2017, by post).

^[12] Ibid [48]–[51], [64]–[74].

^[13] Ibid [113]–[118].

^[14] Ibid [133]–[139].

^[15] Ground 13 of the judicial review application was: ‘[The County Court judge] erred in law in concluding that the offence created by s 11(1) of the [Uniform Law] is one of strict liability’.

^[16] Reasons, [64]–[66].

^[17] He Kaw Teh (1985) 157 CLR 523; [1985] HCA 43.

^[18] Ibid 528–30 (Gibbs CJ, Mason J agreeing at 546).

^[19] Ibid 533 (Gibbs CJ, Mason J agreeing at 546).

^[20] Reasons, [67].

^[21] Ibid [68]–[69].

^[22] See s 9(b), which states that the objects of pt 2.1 of the Uniform Law (which ss 10 and 11 fall within) include ‘to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so’.

^[23] Reasons, [70].

^[24] County Court of Victoria, Judge Parrish, 29 October 2013 (‘Batten’).

^[25] Reasons, [71].

^[26] Ibid [71]–[72].

^[27] Ibid [74].

^[28] Ibid [73].

^[29] The applicant’s primary written submissions on this application were 39 pages long and annexed 80 pages of material. The applicant’s further written submissions, filed the day before the hearing, comprised a further 10 pages, including annexed material.

^[30] [2018] UKSC 36; [2018] 1 WLR 3647, 3654; [2018] UKSC 36 (‘Lane’).

^[31] [2022] 1 WLR 789; [2022] UKSC 2 (‘Pwr’).

^[32] Section 100(1) of the Uniform Law provides a right of appeal or review against a decision by the Board to refuse an application to renew a practising certificate.

^[33] The applicant referred to Pumpa v Victorian Legal Services Board (2017) 53 VR 394, 417–8 [87] (Derham AsJ); [2017] VSC 629.

^[34] [1941] HCA 28; (1941) 67 CLR 536, 540 (Dixon J); [1941] HCA 28 (‘Proudman’).

^[35] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 556 (Wilson J), 566 (Brennan J); [1985] HCA 43.

^[36] Ibid 528 (Gibbs CJ, Mason J agreeing at 546), quoting Sherras v De Rutzen [1895] UKLawRpKQB 77; [1895] 1 QB 918, 921 (Wright J).

^[37] [1985] HCA 43; (1985) 157 CLR 523, 529–30 (Gibbs CJ, Mason J agreeing at 546); [1985] HCA 43.

^[38] Ibid 535 (Gibbs CJ, Mason J agreeing at 546).

^[39] Ibid 556–9 (Wilson J), 582–5 (Brennan J), 594–7 (Dawson J).

^[40] [2022] UKSC 2; [2022] 1 WLR 789, 799–800 [36]–[37] (Lord Hamblen, Lord Burrows JJSC and Lady Arden, Lady Rose JSC and Lord Lloyd-Jones agreeing); [2022] UKSC 2 (emphasis in original).

^[41] County Court of Victoria, Judge Parrish, 29 October 2013, 78 [170].

^[42] Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30.

^[43] Ground 2 of the judicial review application was: ‘[The County Court judge] erred in law in that it was unreasonable for [her] to be satisfied beyond reasonable doubt on the evidence before [her] that the [applicant] represented an entitlement to engage in legal practice on 24 January 2018 by producing a certificate of admission to demonstrate his entitlement to engage in legal practice’. Ground 3 was: ‘[The County Court judge] erred in law in that it was unreasonable for [her] to be satisfied beyond reasonable doubt on the evidence before [her] that the [applicant] represented an entitlement to engage in legal practice on 24 January 2018 by producing an evidentiary certificate from the [Board] to demonstrate his entitlement to engage in legal practice’.

^[44] Ground 8 of the judicial review application was: ‘[The County Court judge] erred in law in that it was unreasonable for [her] to be satisfied beyond reasonable doubt on the evidence before [her] that the [applicant] represented an entitlement to engage in legal practice on 24 January 2018 by producing a certificate of solicitor to demonstrate his entitlement to engage in legal practice’.

^[45] Reasons, [76], citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 649–50 (Crennan and Bell JJ); [2010] HCA 16.

^[46] Reasons, [114].

^[47] Ibid [115]–[116].

^[48] Ibid [117].

^[49] Ibid.

^[50] The applicant referred to Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, 27 [31] (Allsop CJ, Besanko and O’Callaghan JJ); [2022] FCAFC 3.

^[51] The applicant referred to [2016] FCAFC 28; (2016) 240 FCR 158, 172 [64] (Allsop CJ, Griffiths and Wigney JJ); [2016] FCAFC 28.

^[52] Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66. A Liberato direction is a direction that even if the jury prefers the evidence of a prosecution witness over the evidence of a defence witness, they should nevertheless not convict unless they are satisfied beyond reasonable doubt that the prosecution has proved its case beyond reasonable doubt.

^[53] R v Murray (1987) 11 NSWLR 12. A Murray direction is a direction given where the prosecution’s case is based largely or exclusively on the evidence of a particular witness. The jury are directed that they must scrutinise the evidence of that witness with great care before convicting.

^[54] See Gibson (a pseudonym) v The King [2024] VSCA 33, [45]–[50] (Niall, Macaulay and T Forrest JJA). See also R v Aden [2002] VSCA 79; (2002) 162 A Crim R 1, 12–13 [32] (Batt JA, Phillips JA agreeing at 2 [1], Vincent JA agreeing at 20 [47]); [2002] VSCA 79.

^[55] Ground 9 of the judicial review application was: ‘[The County Court judge] erred in law in that it was unreasonable for [her] to be satisfied beyond reasonable doubt on the evidence before [her] that the [applicant] made statements to Registry staff to the effect that he was a practising solicitor’.

^[56] Reasons, [118].

^[57] Applicant’s written case, [136].

^[58] Ground 10 of the judicial review application was: ‘[The County Court judge] erred in law in that it was unreasonable for [her] to satisfied beyond reasonable doubt that on 24 January 2018 the [applicant] was not a qualified entity’. Ground 11 was ‘[The County Court judge] erred in law in that [she] failed to consider whether section 6(d) of the definition of a qualified entity in the [Uniform Law] applied to the [applicant] on 24 January 2018 and also failed to consider the [applicant’s] submissions on point’.

^[59] Reasons, [134]. See [11] above.

^[60] Ibid [134]–[135].

^[61] Defined in r 57.01 to mean a writ of habeas corpus ad subjiciendum.

^[62] Reasons, [136].

^[63] Ibid [137]–[138].

^[64] The judge cited XYZ v State Trustees Ltd [2006] VSC 444; (2006) 25 VAR 402, 419 [42] (Cavanough J); [2006] VSC 444.

^[65] Reasons, [139].

^[66] [1995] VicRp 50; [1995] 2 VR 188, 210.

^[67] (2007) 207 FLR 245; [2007] VSC 1 (‘Orrong’).

^[68] [2011] QSC 132 (‘Walter’).

^[69] [2000] VSC 162.

^[70] Orrong [2007] VSC 1; (2007) 207 FLR 245, 440 [831(c)]; [2007] VSC 1. The conduct also included rendering an account which took the form of a solicitor’s bill of costs, advertising his business as ‘Lawyers, G S Bailey & Co’, describing himself as ‘an industrial relations solicitor’ and signing a lease of premises, the use of which was specified to be as a ‘solicitor’s office’: see [831(a)], [831(d)], [831(f)] and [831(g)].

^[71] Walter [2011] QSC 132, [27(c)].

^[72] Uniform Law, s 3(b), (c).

^[73] Ibid s 9.

^[74] Paragraph (a) of the definition of ‘qualified entity’; definition of ‘Australian legal practitioner’ in s 6.

^[75] Paragraph (b) of the definition of ‘qualified entity’; definition of ‘law practice’ in s 6.

^[76] Paragraph (c) of the definition of ‘qualified entity’.

^[77] Paragraph (e) of the definition of ‘qualified entity’.

^[78] See, by analogy, the discussion of s 14(2)(a) of the Legal Profession Act 2004 (NSW) in Law Society of New South Wales v Spring [2007] NSWSC 1273, [55]–[56] (Barr J) (‘Spring’).

^[79] In Spring, the Supreme Court of New South Wales gave further examples, which included the right of appearance before a tribunal in anti-discrimination matters provided by s 98 of the Anti-Discrimination Act 1977 (NSW) and the right of representation in commercial arbitration matters provided by s 20 of the Commercial Arbitration Act 1984 (NSW).

^[80] Qu v Wilks [2023] VSCA 198, [67] (Beach, Kennedy and Walker JJA).