VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
Legal Practice LIST	vcat reference No. J25/2022
	
CATCHWORDS	
Solicitor—disciplinary proceeding—preliminary question—application for permanent stay, summary dismissal or strike-out—eight charges, arising out of three separate client matters brought in a single application to the Tribunal—delay—whether oppressive, unfair and/or an abuse of process—Legal Profession Uniform Law, s 300, Victorian Civil and Administrative Tribunal Act 1998, s 75.

APPLICANT	Victorian Legal Services Commissioner	
RESPONDENT	Mr Joseph Guss	
WHERE HELD	Melbourne	
BEFORE	J. Smithers, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	30 October 2023	
DATE OF ORDER	23 November 2023	
DATE OF WRITTEN REASONS	29 November 2023	
CITATION	Victorian Legal Services Commissioner v Guss (Legal Practice) [2023] VCAT 1325	

OrderS
1	Mr Guss’ application for these proceedings to be permanently stayed, summarily dismissed, or struck out, is dismissed. 
2	By 4 pm on 30 November 2023, Mr Guss must either:
(a)	file and serve all material upon which he seeks to rely, including his defence to the allegations and statements of evidence of each witness to be called at the hearing;
OR
(b)	file and serve an outline of argument which identifies in broad terms the issues for determination. It is noted that if the Mr Guss adopts this course, the proceeding may be adjourned part-heard and at the conclusion of the applicant’s case, further orders made for the filing and serving of the material to be relied upon by Mr Guss.
3	The listing of this matter for a 5 day in person hearing at 55 King Street, Melbourne starting at 10:00am on 5 December 2023 is confirmed. The hearing days are 5, 6, 7, 11 and 12 December 2023, save that on 7 December 2023, the hearing will be in the morning only.
4	Costs of this application are reserved.

J. Smithers
Senior Member			

APPEARANCES:		
For the Applicant 	Mr Scotter of counsel	
For the Respondent	In person	

Reasons
Introduction
1	This is the determination of a preliminary question in this proceeding. The applicant (‘VLSC’) has brought eight disciplinary charges against Mr Joseph Guss by way of Application for Order (‘Application’) dated 7 April 2022. These arise from three separate client matters. Mr Guss seeks that the VLSC’s application be permanently stayed, or alternatively, be dismissed or struck out.
2	His Application is brought on to two bases:
i	The eight charges all relate to different matters, and so should be dealt with separately. Not to do so would be oppressive, would not permit a fair trial, and would constitute an abuse of process (the ‘joinder’ argument).
ii	There has been delay associated with the bringing of the charges which justifies them being permanently stayed or summarily dismissed process (the ‘delay’ argument).
3	Mr Guss contends the principles and procedures which apply in criminal proceedings have application to the disciplinary proceedings brought against him, and that the proper application of these in this instance should lead to the charges not proceeding.
4	In addition to the joinder and delay arguments, in written and oral submissions, Mr Guss briefly referred to various other matters, which I have also considered. 
5	For the reasons set out below, the application by Mr Guss is refused.
The charges brought against Mr Guss
6	The eight charges are brought under the Legal Profession Uniform Law (‘Uniform Law’). These are referred to in the Application (and this decision), not in the order that the conduct giving rise to them occurred, but in the order in which they came to the attention of the VLSC, which sequence is reflected in the numbering of the charges. A summary of these is set out below. Save for charge 2, they all allege misconduct of some form or other. The provision of the Uniform Law under which each is brought is indicated in brackets.
The Kirby complaint
7	Charge 1 – The VLSC received three complaints during 2017 concerning a retainer to act for Mr Michael Kirby and Ms Gela Newitt in relation to their sale of a property at Bacchus Marsh. These alleged that in December 2016, Mr Guss received trust monies in the course of this retainer when he was not authorised to receive trust monies. The funds were from the early release of the deposit paid by the purchaser, under s 27 of the Sale of Land Act 1962 (Vic) (s 150 and s 298(c) of the Uniform Law).
8	Charge 2 – In the course of investigating these complaints, the VLSC became aware of Mr Guss apparently engaging in mortgage financing. This allegedly occurred around 2016-17. It involved a company controlled by his ‘life partner’, Susan Rae Calwell, lending money to Mr Kirby (as mortgagor), with Ms Newitt as guarantor. Rule 41 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 provides that a law practice must not conduct a managed investment scheme or engage in mortgage financing as part of their law practice. This includes acting as an intermediary to match the borrowers, arranging loans, or receiving or dealing with payments under such a loan. (This is alleged to comprise unsatisfactory professional conduct under s 298(b).)  
The Gray complaint
9	In or around June 2016, Mr Guss was retained by Mr Thomas Gray and Mr George Muchnicki in relation to a default notice issued against them concerning unpaid management fees for a flat in a ski lodge at Mount Buller.
10	Charge 3 is a further allegation of Mr Guss receiving trust monies, in this case, funds on account of his fees, when he was not authorised to receive trust monies. This relates to the amount of $1,000 received by Mr Guss from Mr Gray on 19 August 2016 (s 150 and s 298(c)).
11	This matter came to the VLSC’s attention from a complaint lodged by Mr Gray on 1 June 2018.
12	Charge 4 alleges a lack of competence and diligence in that Mr Guss failed to carry out work he was retained to do and failed to return the amount of $1,000 held by him on account of his fees, for approximately two years (s 297(1)(a)).
13	 Charge 5 concerns Mr Guss’s alleged failure to comply with a statutory information request from the VLSC concerning the Gray complaint between 15 November 2018 until 29 January 2021 or alternatively until 7 April 2022 (when the VLSC determined to commence disciplinary proceedings against Mr Guss) (s 298(a), 371(1) and (3)).
14	Charge 6 alleges that Mr Guss falsely created an invoice for his fees in the Gray matter on around 29 January 2021, backdated to August 2016. This is an allegation of misconduct at common law (within the inclusive definition of professional misconduct in s 297).
15	The Application then lists an alternative to charge 6. This relates to the same conduct, but is an allegation of statutory professional misconduct (s 297(1)(b)).
16	Charge 7 alleges that in a statutory declaration sworn on 10 August 2021 concerning the Gray matter, Mr Guss falsely confirmed that he had provided the invoice to Mr Gray and Mr Muchnicki in August 2016. This is an allegation of misconduct at common law (s 297).
17	The Application then lists an alternative to charge 7. This relates to the same conduct, but is an allegation of statutory professional misconduct (s 297(1)(b)). 
Commissioner Complaint (concerning the Brown estate)
18	Between 2013 and 2015, Mr Guss was acting as solicitor for his son in litigation challenging the validity of the will of Ms Neridah Brown and seeking payment of monies from her deceased estate. The decision of Justice McMillan of 8 April 2015 was critical of him for acting when there was a conflict of interest and breaching his overarching obligations under the Civil Procedure Act 2010 (Vic).  
19	The solicitors for the plaintiff sent that decision to the VLSC on 8 May 2015. The VLSC then commenced a ‘Commissioner Initiated Investigation’. 
20	Charge 8 alleges that Mr Guss breached rule 13.4 the Professional Conduct and Practice Rules 2005 by continuing to act despite being required to give evidence material to the determination of contested issues before the court (s 298(b)).
Delay in bringing charges
21	It can be seen from the above that in relation to these three client matters, the VLSC received complaints or notifications in 2017 (Kirby), 2018 (Gray) and 2015 (Brown) respectively. The delays until the Application was filed at VCAT on 7 April 2022 in relation to those matters were thus approximately five years, four years and seven years respectively.
Procedural history
22	As discussed in more detail below, this proceeding was commenced at VCAT against Mr Guss on 7 April 2022. Although Mr Guss’s concerns about joinder of charges and delay were first raised by way of an application for directions orders dated 20 December 2022, they were not effectively prosecuted by him until October 2023. By that time, the matter had been listed for a five-day hearing commencing on 5 December 2023.  
The orders sought by Mr Guss
23	Mr Guss’s application seeks three forms of relief, stated in the alternative: a permanent stay of the VLSC’s application, or alternatively, that it be dismissed or struck out.
24	VCAT is of course a creature of statute. When asked the basis for an order that the VLSC’s application be permanently stayed, he asserted that ‘superior courts have the power to grant a permanent stay’, and ‘the jurisdiction of the Tribunal would follow, even though its not specifically in the Act, to grant a permanent stay’.
25	Mr Guss also said in oral argument that the decision of the High Court in Walton v Gardiner, (‘Walton’) might stand as authority that VCAT has such jurisdiction.
26	That is not so. Walton stated the principles applicable as to when a superior court would itself invoke its inherent power to stay its own proceedings, or those of a disciplinary tribunal, on the grounds of abuse of process. 
27	VCAT does not have such inherent power. As a creature of statute, all it has in terms of powers to bring proceedings to an end without adjudication on the merits, relevantly, is the power in s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). See the decision of Kyrou J in Martin v Fasham Johnson Pty Ltd.
28	Hence, Mr Guss’ application for a permanent stay must be refused.
29	Mr Guss’ alternative application is for summary dismissal on the basis that the delay which has occurred in bringing the charges amounts to an abuse of process. This is under s 75(1) of the VCAT Act, which provides:
At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion –
(a)	is frivolous, vexatious, misconceived or lacking in substance; or
(b)	is otherwise an abuse of process.
30	I understand the reference to strike out to apply to his application concerning the joinder of the eight charges.
31	Of course, an applicant for summary dismissal faces a high bar, given that the result is the immediate termination of the application, without it being determined on the merits. But abuse of process, if demonstrated, can constitute a basis on which summary dismissal can be ordered by the Tribunal. And delay might constitute an abuse of process, although as noted below, this will rarely be the case. 
Mr Guss’ submissions
First ground – the bringing of multiple charges together in one application
32	In his written submissions, Mr Guss summarised his application in relation to the joinder argument as follows:
Introduction
1. In this matter the applicants application which is in the nature of a prosecution is in respect to three alleged breaches of the Legal Profession Uniform Law (uniform law) joined in a single application.
2. As can be seen on the face of the alleged breaches in the application for order filed by the applicant, namely:
A. Newitt/Kirby Complaint
B. Gray Complaint
C. Commissioner Complaint
They are concerning matters not related in any way or founded on the same facts or form, or are part of a series of alleged breaches of the same or a similar character.
3. The applicants application is accordingly not in accordance with law, is oppressive, unfair, and would not permit a fair trial.
4. Further, the considerable delay in bringing the application against the respondent in respect to the said 3 alleged breaches, has caused substantial prejudice to the respondent in the conduct of his defence.
5. As a result the applicants application should be permanently stayed, or alternatively dismissed or struck out.
Civil/Criminal Law application
6. While the applicants application is brought in a civil court it is contended that in determining what amounts to an abuse of process under S.75 of the Victorian and Civil Administrative Tribunal Act 1988 ( the VCAT Act) in this matter, (which is in the nature of a prosecution) the principles concerning same in the criminal law are applicable.
33	The effect of Mr Guss’ submission was that the Tribunal should apply the principles and procedures applicable in criminal cases in relation to the joinder or severance of different charges. While Mr Guss did acknowledge in passing that the High Court in Jago v District Court of NSW,  (‘Jago’) and in Walton  had said that the application of the principles applicable in criminal law needs to be adjusted in their application to professional disciplinary proceedings, the effect of his submission was that any such adjustment did not prevent the proper conclusion being that the charges should be separated out here. 
34	Mr Guss’ submission included quotations from Jago and Walton v Gardiner which describe the principles applicable when considering the question of abuse of process. His submissions (at [9]) include the following quotation from the leading authority, Walton v Gardiner:
In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective - i.e. protective of the public - in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds. In particular, in a context where the disciplinary power of the Tribunal extends both to the making of an order permanently removing a medical practitioner from the Register with consequent loss of entitlement to practise and to the imposition of a fine of up to $25,000 ((36) See Medical Practitioners Act 1938 (N.S.W.), s.32R(1)(g) and (h).), there is plainly an analogy between the concept of abuse of a court's process in relation to criminal proceedings and the concept of abuse of the Tribunal's process in relation to disciplinary proceedings. In that regard, it is relevant to mention that we do not read any of the provisions of the Act as expressly or impliedly cutting down the scope of the general supervisory jurisdiction of the Court of Appeal to stay proceedings in the Tribunal on abuse of process grounds. As was pointed out in Jago ((37) See, in particular, (1989) 168 CLR, per Mason CJ at pp 30-34; per Deane J at pp 59-61; per Toohey J at p 72; per Gaudron J at pp 76-78.), the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners. As we read their Honours' judgments, the members of the Court of Appeal all utilized such an adapted weighing process in the present case.
35	The first part of Mr Guss’ written submissions focussed on the three separate retainers, and contended these should be separated out, so as to be heard in discrete VCAT proceedings.
36	The words used in [2] of Mr Guss’ submission set out above, reflect the definition of ‘related offences’ in s 3(1) of the Criminal Procedure Act 2009 (Vic) (‘CPA’). That is, ‘offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character’.
37	The submission refers (at [11]) to ‘the provisions of the [CPA] in respect of joinder of charges’, without specifying which provisions are being referred to. It may be that he was referring to the provisions of s 193 of the CPA, which is headed ‘Order for separate trial’. 
38	Section 170 of the CPA provides that if an indictment contains more than one charge, the charges must be heard together unless an order is made under s 193 or s 195. 
39	Section 193 relevantly provides:
Order for separate trial
(1)	If an indictment contains more than one charge, the court may order that any one or more of the charges be tried separately.
….
(2)	The court may make an order under subsection (1)… if the court considers that— 
(a)	the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment; or
(b)	for any other reason it is appropriate to do so.
40	Section 194 contains a rebuttable presumption that if two more charges for sexual offences are joined in the same indictment, those charges are to be tried together.
41	Section 195 contains a rebuttable presumption that if an indictment contains a charge of conspiracy to commit an offence and another charge alleging the commission of that offence, they are to be tried separately.
42	The submission by Mr Guss incorporated quotations from authorities and references to texts which describe the manner in which this discretion is exercised in Victorian courts. The submission also included (at [12]) the following extract from what was described as ‘6 Notes Criminal Law and Process Victoria, Don Just, pages 2&3’:
Judicial power to order separation (severance) of trials of charges against one accused 
Where charges are properly joined in a single indictment, there remains a judicial power to order separate trials of charges. The test is different to that in Schedule 1 which permits joinder in the same indictment document. Thus it not uncommonly occurs that a court finds joinder in the same indictment document proper but nevertheless in exercise of the judicial power orders separate trials. The judicial power is provided by Criminal Procedure Act s.193; Huynh v R [2020] VSCA 222; DPP v Lamb (a pseudonym) [2015] VSCA 307. There is to be separation where an accused may be prejudiced because the accused is charged with more than one crime in the same indictment or for any other reason it is appropriate to do so. Whilst not identical to [the] previous provision, the substance is sufficiently close to suppose the guidance offered by previous cases remains. 
On the judicial power to order separate trials, see R v TJB [1998] 4 VR 621 per Callaway JA. "1. A presentment should always be severed where that is both desirable and practicable in order to ensure a fair trial. It is for defence counsel to persuade the judge that that is so....   2. One aspect of a fair trial is the taking of reasonable steps to prevent a jury from misusing evidence. That is not limited to propensity evidence... 3. It is usually to be assumed that the jury will comply with any directions they are given by the judge. A fair-minded lay observer takes that very factor into account in considering whether a trial is fair: cf. Webb v R [1994] HCA 30, (1994) 181 CLR 41 at p.55. 4. There are nevertheless cases where the risk of prejudice is unacceptable. It will often be found that that is so in the case of crimes of an unnatural character or crimes that arouse strong emotions or excite revulsion. 5. There is also a greater risk that a direction will be ineffectual if evidence in relation to one complainant is probative in relation to another but either the Crown does not rely on it for that purpose or the judge rules that it is inadmissible because of prejudice." See also Bui v R [2011] VSCA 404; R v Renzella [1997] VICSC 37.
43	Mr Guss’ submission went on to say (at [13]-[15]):
The cases of Fleming (a pseudonym) v The Queen [2021] VSCA 206 (Fleming) and DPP v Lamb a (pseudonym) [2015] VSCA 307 (Lamb) which set out the principles of severance where multiple charges are included in one indictment, are particularly relevant. 
There can be no question that the 3 charges included in the applicants application for orders in this proceeding are not related offences as defined by S.3(1) of the CPA and not related offences for the purposes or part of a series of offences of the same or similar character of the 3 charges made in the application for orders in this proceeding and would be extremely prejudicial to the respondent if allowed to be prosecuted at the one trial. 
As referred to in paragraphs 35-37 of Lamb there are difficulties in juries adhering to judicial instructions in cases [where] joinder is allowed. In this proceeding the VCAT member hearing this proceeding would be subject to the same difficulties of a jury, and more so owing to the fact that he/she would be sitting alone.
44	In oral argument, Mr Guss explained that in this submission, he was, in effect, contrasting the position of a Tribunal member considering all matters of fact and law alone, with that of a jury in a criminal trial. The jury has the benefit of directions given by a judge about what considerations they should and should not take into account when deciding various issues in the trial, whereas a Tribunal member does not. 
45	The second part of the written submissions then contended that not only should the charges dealing with Kirby, Gray and the Commissioner’s Complaint, each be separated out into discrete proceedings, but further, the individual charges within each of those three should be further separated out, such that there should be eight separate VCAT proceedings. 
46	Charges 6 (alleging creation of the false invoice) and 7 (alleging making a false statutory declaration) are each accompanied by alternatives (which are not given separate numbers). Charges 6 and 7 each allege misconduct at common law. The alternatives allege professional misconduct under s 297(1)(b), that is, conduct which if proved, would justify a finding that Mr Guss is not a fit and proper person to practise law. 
47	I understood Mr Guss to concede in oral argument that each of charge 6 and 7 could be heard together with their alternatives. Aside from that, however, he said all the charges need to be heard separately. That is, there needs to be eight separate Applications for Order, and eight separate VCAT hearings, each before a different member (two for the Kirby charges, five for the Gray charges and one for the single charge arising out of the Commissioner’s complaint).
48	Concerning Kirby, it was contended that the two charges (being (1) receiving monies on account of costs without authorisation to receive trust monies, and (2) engaging in mortgage financing) should not be heard together, as they relate to different alleged conduct. 
49	Similarly, concerning Gray, it was contended that charges 3 (receiving trust money), 4 (provision of inadequate services to the clients), 5 (failing to reply to a statutory information request), 6 (allegedly creating a false invoice) and 7 (allegedly making a false statutory declaration) all relate to different things. 
Second ground – delay
50	Mr Guss’ submissions on delay commenced (at [20]) with the following quotation from Kyrou J in XG v Medical Board of Australia (‘XG’).  This statement was invoked, in particular, as descriptive of the principles applicable where allegations are brought so late that it is prejudicial to the respondent’s defence, because evidence may have dissipated:
Court’s inherent power to stay proceedings constituting an abuse of process
7	This Court has an inherent power to make an order staying a proceeding in a statutory tribunal on the ground that the proceeding constitutes an abuse of the tribunal’s process.     
8	There is a clear analogy between the concept of abuse of a court’s process in relation to criminal proceedings and the concept of abuse of a tribunal’s process in relation to disciplinary proceedings.    
9	The Court’s inherent power to control its own process and proceedings is not restricted to defined and closed categories; it is broad and may be exercised as and when the administration of justice demands.  
10	In determining whether the Panel Hearing should be permanently stayed, the Court must engage in a weighing process.  The weighing process involves a subjective balancing of a range of considerations supporting or militating against a conclusion that a continuation of the Panel Hearing would be so unfairly and unjustifiably oppressive of the plaintiff as to constitute an abuse of the Panel’s process.   The considerations include: 
(a)	the need to maintain public confidence in the system for the investigation of complaints against medical practitioners; 
(b)	the public interest in the proper and impartial investigation of complaints against medical practitioners and in the exposure of malpractice by those licensed by the State to carry out invasive and intimate examinations for medical reasons; 
(c)	the protective character of the disciplinary proceeding; 
(d)	the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners;  
(e)	the seriousness of the complaint against the medical practitioner;
(f)	the requirements of fairness to the medical practitioner;  
(g)	the length of any delay in the making of a complaint against the medical practitioner or in its investigation and the reasons for the delay;  
(h)	the prejudice to the medical practitioner from a continuation of the disciplinary proceeding, having regard to matters such as the age and lack of detailed particulars of the allegations to be investigated and the medical practitioner’s lack of records that may have assisted his or her defence of the allegations;  and
(i)	the capacity of the disciplinary tribunal to give directions or to mould its procedures so as to ameliorate any prejudice to the medical practitioner. 
11	The above considerations make clear that the public interest in the Panel Hearing continuing is not the only public interest to consider.  There is also a public interest in a fair hearing and in ensuring that the Panel’s proceedings are not an abuse of process. In Herron v McGregor,  McHugh JA said:
If the prejudice or unfairness is so oppressive as to amount to an abuse of process, the public interest requires that the proceedings be stayed.  There is no public interest in hearing a complaint and making a finding of professional misconduct against a doctor where the delay of the complainant has caused the defendant substantial prejudice and unfairness amounting to an abuse of process.  Members of the public could have no confidence whatever in a finding of professional misconduct made in those circumstances. 
12	It has been said that there is a ‘very heavy burden’ imposed on a medical practitioner seeking an order from this Court to stay a proposed investigation into allegations concerning the practitioner’s professional conduct.   It has also been said that the Court’s power to permanently stay proceedings in a medical tribunal should only be exercised in ‘very exceptional circumstances’.   What is meant by these statements is that, as there are strong public interest considerations against granting a stay, very potent grounds must be demonstrated in a particular case in order to tip the balance in favour of granting a stay.  
13	Delay in the making of a complaint or in its investigation and the reasons for the delay are relevant considerations in the Court determining whether to grant a stay.   However, unexplained delay by a complainant should not normally, by itself, lead to a permanent stay order being made unless it will result in an unfair hearing.   According to Mason CJ in Jago v District Court of New South Wales,  the granting of a permanent stay on the basis of delay alone will be very rare.  
14	In summary, this Court should only exercise its inherent power to stay the Panel Hearing as an abuse of process if it is satisfied that, in all the circumstances, the Panel Hearing would involve unacceptable injustice or unfairness. 
15	In my opinion, an abuse of process may be constituted by all or part of the subject matter of a hearing by a disciplinary tribunal.  Accordingly, if this Court concludes that the continuation of the Panel Hearing in relation to only some of AA’s allegations would constitute an abuse of process in the sense discussed above, it has inherent power to stay the Panel Hearing in so far as it relates to those allegations.  The parties did not cavil with this proposition.  
51	With regard to the Kirby matter, Mr Guss noted the investigation was commenced in February 2017, but the application was not filed until 7 April 2022, a delay of more than five years. He said this is unacceptable, and an abuse of process. In oral argument, he said this is a fairly simple charge. 
52	He also said he understood Ms Newitt has died, she would have been necessary to be called as a witness, and he is now prejudiced in his defence as a result. 
53	Concerning Gray, he said the complaint was made on 1 June 2018, so there was a delay of over four years in commencing that proceeding. Mr Guss also said that to the extent it might be said the delay was contributed to by him, he believed that occurred during ‘Covid times’, when his office was closed.
54	Concerning the Commissioner’s complaint, Mr Guss said, at [24] of his submissions:
(a)	This is based on a judgement for costs in the case of Brown v Guss ( No 2) [2015] VSC 57 (Brown No.2) in which the respondent was concerned as having acted as the solicitor for the defendant (the respondents son) in a probate case Brown v Guss PRB11896 of 2010 (Brown No.1) 
(b)	The respondent was represented by the LPLC in Brown No.2 which was in reality the defendant and briefed counsel and had control of the proceeding. While the respondent did not agree with the manner in which the defence to a non party costs claim had been made against him, he had no control thereover, or any possible appeal from the decision therein.
(c)	The applicant notes that the applicant intends to lead evidence from counsel briefed by the respondent on behalf of the defendant therein in the application for orders. The respondent submits that counsel cannot give such evidence on the grounds of legal professional privilege.
(d)	The complaint arose on 8 May 2015 and the application for orders filed on 7 May 2023 a delay of 7 years which is an unacceptable delay constituting an abuse of process.
(e)	Further the respondents files relating to Brown No.1 were put into storage in 2015 and have apparently been moved by the warehouse owner, and were not made available along with other items in storage when requested, and accordingly the respondent has no knowledge of their whereabouts. Those documents are the respondent believes necessary to conduct his defence.
(f)	The plaintiff in both Brown No. 1 and 2 in the period of delay has died. If still alive the respondent would have called him as a material witness in answer to the decisions findings in Brown No. 1 and 2.
VLSC’s submissions
First ground – the bringing of multiple charges together in one application
55	Concerning the joinder of multiple charges together in the one Application, the VLSC submitted in summary, that the charges do not have to be related in the manner required in the criminal law (although here, in any event, here they are sufficiently related). Further, it is the conduct of a practitioner which the Tribunal is required to consider in carrying out disciplinary proceedings under the Uniform Law.
56	The VLSC referred to the partial analogy which the Supreme Court has said exists between criminal and disciplinary proceedings. But it noted that the Court of Appeal said in Matthew Stirling v Legal Services Commissioner:
However, this analogy is not perfect. As urged by the respondent, these proceedings are sui generis, and are within the inherent jurisdiction of the Court. While there are common elements, as noted in Hanneberry, it is clear that these types of proceedings are not criminal:
The first is that disciplinary proceedings under the Act are not criminal proceedings but are proceedings sui generis … This proposition is reflected in the circumstance that unfitness to practise based on misconduct need be proved only according to the civil standard, subject of course to the necessity to bear in mind the seriousness of the conduct charged.
57	The VLSC referred to the decision of Bongiorno J in XD v Johnson & Ors (‘XD no 2’) as authority for the proposition that the rules of criminal procedure do not apply to professional disciplinary proceedings. That case concerned allegations of sexual misconduct against a medical practitioner made by two patients (referred to as Ms A and Ms B). They were listed before a medical panel. An application was made for them to be severed and heard separately, by different panels. That was refused by the panel. That refusal was upheld on review by the Bongiorno J. His honour said:
Mr Dreyfus submitted that criminal law principles concerning severance and separate hearings are not applicable in disciplinary proceedings before a body such as the panel. He referred to Zaidi v Health Care Complaints Commission, Purnell v Medical Board of Queensland, Reza v General Medical Council, and an unreported decision of this court: Pixley v Medical Board of Victoria.
Such analogy as exists between disciplinary proceedings of the type brought against the plaintiff in this case and the criminal process does not extend to the application of the complex rules relating to the joinder and severance of criminal charges to an investigation such as that which the panel is required to undertake in this case. So much is made clear from the authorities relied upon by Mr Dreyfus. The rules relating to joinder and severance of criminal charges are simply one aspect of the law of criminal procedure designed to ensure that an accused person is not exposed to the possibility of wrongful conviction in circumstances where a jury might misuse evidence given in support of one count in an indictment in considering another. As Gobbo J said of the Medical Board of Victoria (the body which, in effect, was the predecessor of the panel):
In my view it is not correct to equate a Medical Board to a jury as it is appointed by the Governor-in-Council and has set powers and obligations under the Medical Practitioners Act 1970. It is the sole body charged with conduct of enquiries provided for by the statute. It has no judge to decide on issues of admissibility of evidence. Further the Board has the wider function of enquiry and the members of the Board are entitled to ask a doctor against whom allegations are made, questions based upon their knowledge and experience.
I respectfully adopt this statement by Gobbo J as expressing the correct situation with respect to a panel appointed pursuant to s 46 of the Medical Practice Act.
I am satisfied that the panel’s conclusion that it should refuse to sever the allegations made by Ms A from those made by Ms B in conducting its formal hearing was within its discretion and constituted no error of law. It is accordingly unnecessary to consider whether the injunction imposed upon a panel by s 49(a) of the Act to hear and determine a matter remitted to it would, in any event, prevent a panel from making an order such as that sought by the plaintiff in this case. A panel has no power itself to appoint a separate panel and if it has no power to refuse to hear a matter on the ground that to do so would involve an abuse of process it may well be that it cannot refuse to hear a matter lawfully referred to it by the board which involves even quite disparate allegations against a practitioner. It is unnecessary, however, to consider this matter or the related matter of the board’s obligations with respect to references to panels in the context of this case having regard to the conclusion I have reached.
In the circumstances the plaintiff has failed to make out a case for this court’s intervention in the decision by the panel not to sever the allegations of Ms A from those of Ms B but rather to conduct one formal hearing into both. The plaintiff’s claim for relief in his originating motion in this respect must be dismissed.
58	The VLSC also referred to the logistical difficulties of having eight separate hearings, before eight different Tribunal members. It referred to the time and expense this would entail, including the need to await the outcome of the final matter before the question of penalty is determined. It noted Mr Guss is currently an undischarged bankrupt, so in the event any adverse findings are made against him, he would not be very unlikely to be able to pay any costs (which the Uniform Law mandates be paid by any person found to have engaged in unsatisfactory professional conduct, or professional misconduct under s 303 of the Uniform Law, absent exceptional circumstances). 
59	The VLSC noted that multiple charges involving different types of conduct, and different client retainers are commonly dealt with by the Tribunal as a single proceeding. 
60	It noted that VCAT is required to hear this matter as the designated tribunal under s 10(3) of the Application Act. It submitted there is a clear distinction between a criminal trial before a jury, and a disciplinary proceeding before a VCAT member.  
61	The VLSC submitted that the references in Mr Guss’ submissions to responding to all charges together being oppressive, burdensome and prejudicial (see below) were mere assertions, with no details of those matters given. Mr Scotter, for the VLSC, said Mr Guss has had ample time to prepare his defence, since this matter was commenced in April 2022. He has had the VLSC’s witness statements since October/November 2022. The VLSC agreed to adjourn the matter at one point during 2022 so that Mr Guss could obtain legal representation, but he has elected not to do so. 
62	All this is in addition to the time during the investigations when Mr Guss was made aware of the issues being investigated, by virtue of the correspondence back and forth between him and the VLSC, culminating in the final ‘Murray’ letter in each case.  
63	Concerning Mr Guss’ submission about duplicity (see below), the VLSC interpreted this as being a reference to charge 4 (alleged failure to maintain a reasonable standard of competence and diligence in failing to complete work and withholding funds provided on account of costs from Mr Gray). The VLSC said: 
No proper details are given of how that is the case. It seems that the complaint is that more than one thing is relied upon to found the charge of a serious want of competence and diligence. This complaint is baseless. It can be the case that a single act shows the relevant serious lack of competence, but a lack of diligence almost inevitably requires a number of failings. The words of the statute themselves drive the conclusion that more than one act may be relied upon.
64	The VLSC submitted I should infer that Mr Guss’ motivation for this application is to delay the hearing and determination of the charges brought against him. 
65	In this regard, the VLSC points to Mr Guss’ continual non-compliance with what are referred to as ‘Towie’ orders. That is, orders made in the following form: 
By 4pm on 14 December 2022 the Respondent must either:
(a)	serve on the Applicant all material upon which the Respondent seeks to rely, including his defence to the allegations and statements of evidence of each witness to be called at the hearing;
OR
(b)	serve on the Applicant an outline of argument which identifies in broad terms the issues for determination. It is noted that if the Respondent adopts this course, the proceeding may be adjourned part-heard and at the conclusion of the Applicant’s case, further orders made for the filing and serving of the material to be relied upon by the Respondent.
66	Following non-compliance with that order, first made on 20 September 2022, the requirement to produce ‘Towie material’ was renewed by orders made on 22 December 2022, 18 January 2023, and 15 August 2023 (with time being further extended to 29 August 2023). However, it has still not been complied with.
67	The VLSC also pointed to the delays by Mr Guss in prosecuting his s 75 application, first foreshadowed in December 2022, as follows.
•	At a directions hearing on 18 January 2023, the Tribunal made orders, including that: 
4. If the respondent renews his request for his application to strike out the proceeding to be listed for a preliminary hearing, supported by a full and proper articulation of the basis on which he contends that the current application is an abuse of process, the principal registrar is directed to refer that request to Member Tang for further orders. 
•	There was further correspondence between the parties over the following months, during which it is understood Mr Guss suffered ill-health at one point, but no application was produced in response to the order of 18 January 2023. 
•	A directions hearing was conducted on 2 June 2023, at which the substantive proceeding was set down for a five-day hearing commencing on 5 December 2023, in accordance with both parties’ availabilities. 
•	In relation to the s 75 application, the following orders were made:
4	In the event the respondent wishes to proceed with his application under s 75 of the Victorian Civil and Administrative Tribunal Act 1998, then by 3 July 2023, he is to file and serve his submissions in support of that application, including copies of key authorities on which he relies. He is also to state whether he proposes that the s 75 application be determined on the papers, or whether a hearing should be convened for the s 75 application, and if so, his unavailable dates over the months of August, September and October 2023.  
5	By 10 July 2023, the applicant is to provide her response in relation to the manner of hearing of the s 75 application, and if appropriate, her unavailable dates over the months of August, September and October 2023.
6	By 24 July 2023, the applicant is to file and serve her submissions on the s 75 application, including copies of key authorities on which she relies.
7	By 31 July 2023, the respondent may file and serve any submissions in reply.
8	Any application for adjournment of any date by the respondent, to which the applicant does not consent, is to be supported by medical certificates which are specific as to all dates of his non-availability, and the reason.
9	The respondent is to pay the applicant’s costs of today’s directions hearing, quantified in the sum of $2,500. This order is stayed for 30 days. 
10	This proceeding is set down for an administrative mention on 8 November 2023. On that day, the parties are to advise the Tribunal of any matters requiring to be attended to prior to the hearing, including whether any witnesses are proposed to give evidence remotely. The Principal Registrar is to refer the file to the member allocated to hear the case, for consideration of arrangements necessary for the hearing, including whether a hard copy Tribunal Book is required, and arrangements for the giving of evidence by witnesses.
•	On 15 August 2023, Mr Guss’ application under s 75 was struck out, for want of prosecution, as he had not complied with the above orders, despite having been followed up by the Tribunal Registry on 2 August 2023. No response to that communication was received from Mr Guss.  
•	On 17 August 2023, Mr Guss sent an email seeking to renew his s 75 application. 
•	On 29 August 2023, the Tribunal made orders for him to file and serve, by 8 September 2023, all the material on which he sought to rely in support of his proposed application under s 75 of the VCAT Act for summary dismissal or strike out of the VLSC’s disciplinary application against him. His application for reinstatement of his s 75 application, together with any other directions appropriate, would then be considered at a directions hearing on 14 September 2023.
•	Mr Guss did not comply with that order. Instead, he wrote to the Tribunal on 4 September 2023, in the manner described in the Preamble to the Tribunal’s order of 6 September 2023, as follows: 
The Tribunal Notes:
…
D.	On 4 September 2023, at 8.10 pm, Mr Guss emailed the Tribunal and the VLSC, stating he would be going overseas early the following morning, that he would be away for approximately two weeks, would be fully engaged on client business during his absence (thus indicating he would be unable to attend to this matter during that period). Also that while he would endeavour to monitor emails from time to time while away overseas, there would be difficulty with the time difference.
E.	Allowing time, presumably, to attend to this matter upon his return, Mr Guss requested an extension of time for the filing and service of his material in support of his application to be extended to 3 October 2023, and for the 14 September 2023 directions hearing to be re-scheduled to approximately a week later, to suit the Tribunal. 
F.	The VLSC has responded indicating she opposes the granting of ‘even further time’ to Mr Guss for the filing of this application, and notes he remains in breach of his obligation to file and serve his material or a ‘Towie’ statement, as required by order 2 of 20 September 2022.
G.	The VLSC said she maintains her concerns that Mr Guss is not giving this matter the priority it deserves. 
H.	In all the circumstances, the Tribunal orders as follows:

ORDERS
1.	The time for compliance with order 1 of 29 August 2023 is extended to 4:00pm on 3 October 2023. By that time, Mr Guss is to file and serve all material which he seeks to rely on in support of his proposed application under s 75 of the VCAT Act for summary dismissal or strike out of the VLSC’s disciplinary application against him. This is to include his complete submissions and copies of the key authorities he relies.
2.	The matter is listed for a directions hearing at 9:30am on 10 October 2023 by teleconference to consider his application for reinstatement of his s 75 application, and any other directions appropriate.
3.	The Tribunal notes that this matter remains listed for a 5 day in-person final hearing commencing on 5 December 2023, and that Mr Guss remains in breach of the Tribunal’s order 2 of 20 September 2022.
4.	Mr Guss should be aware that the window of opportunity to pursue any s 75 application before the 5 day hearing on 5 December 2023 is fast closing, such that it may become impossible for him to pursue his s 75 application as a separate and discrete application before the 5 December 2023 hearing commences.
•	As events transpired, the Tribunal was able to accommodate a prompt hearing of Mr Guss’ s 75 application, and at a directions hearing on 10 October 2023, it was listed for hearing on 30 October 2023.  
68	In all these circumstances, the VLSC contended that there is no sufficient basis for it to be concluded that Mr Guss would be unfairly prejudiced by all eight charges proceeding together as listed. 
Second ground – delay
69	The VLSC submitted that while Mr Guss had referred to the death of Ms Nevitt (in relation to the Kirby complaint) and Ms Brown (in relation to the Commissioner’s Complaint) there was no actual elaboration of the way in which it was said this would cause prejudice to Mr Guss. It suggested there is no real prejudice. 
70	The VLSC pointed to the numerous references in the narrative in the Application to requests by Mr Guss for extensions of time to respond to correspondence conducted as part of the investigations. It was also said that the investigation of the Gray matter was extended, when Mr Guss, two and a half years into the investigation, produced an allegedly false invoice, which caused a new line of inquiry to be opened up.
Consideration
71	In my view, it is appropriate to deal first with the second of the two contentions by Mr Guss, being delay in bringing the charges. This is because if he succeeds in his argument that this is so prejudicial to him as to amount to an abuse of process, that will bring the proceeding to an immediate end.
72	In contrast, if he succeeds in relation to his contentions about joinder, the appropriate outcome would appear to be severance of the charges, not the immediate termination of the proceeding. 
Delay
73	Both parties’ submissions assumed that in considering the exercise of discretion under s 75 of the VCAT Act in this case, on the basis of an abuse of process comprised by delay, the Tribunal should apply similar considerations to those described above, which are applied by the courts when considering whether a permanent stay should be ordered. I agree.
74	That is, I need to conduct a weighing process, balancing the relevant factors, in particular, fairness to Mr Guss, and the importance of conducting disciplinary proceedings as part of protecting the public, by upholding professional and ethical standards. 
75	The impact on Mr Guss of the delay is for the most part described by him only in terms of generalised assertion: it took five, four and seven years after each respective complaint or notification, for the matter to be brought to VCAT, and it follows from this that the bringing of the charges is an abuse of process. 
76	This became slightly more specific when Mr Guss contended that he is prejudiced in the conduct of his defence by the non-availability of Ms Nevitt and Ms Brown. And, in his oral Reply submissions, that he has lost the ability to cross-examine Ms Nevitt on whether the funds he received were trust monies or not. 
77	In my view, these simple assertions fall well short of providing the high level of satisfaction I would need to have to order that the proceeding be summarily dismissed at this point. While the delays which have occurred in bringing the charges are undesirable, they are not of the magnitude of those which often occur in historical sexual abuse cases, such as XG, to which he refers. And they are in part contributed to by Mr Guss himself. They hardly satisfy the ‘very heavy burden’ Mr Guss bears, in seeking to demonstrate that the bringing of these charges in April 2022 amounted to an abuse of process, adverse to him. 
78	To the extent he argues that the non-availability of Ms Nevitt of Ms Brown prejudices his defence, he can raise those matters in the hearing, with proper submissions as to exactly how it is, in all the circumstances, that the evidence a deceased witness would or could have assisted his case, and why it would be unfair to proceed when that witness is not available. 
79	That point is illustrated by an earlier decision of Bongiorno J in relation to the practitioner XD, referred to above. In relation to that matter, there had been an earlier decision by his honour concerning the same medical panel hearing process:  XD v Medical Practitioners Board (‘XD no 1’) That dealt with the practitioner’s concerns about the age of the allegations brought against him (respectively, concerning events 20-23 years, and 8 years before) and about their vagueness.
80	In this earlier ruling, his honour determined that the panel had no power to stay a hearing on the ground of abuse of process.
81	However, his honour went on to comment that this did not prevent the doctor from raising his concerns about delay and dissipation of evidence in the hearing:
For example, an allegation of fact made by a complainant which cannot be refuted by a medical practitioner for want of lost or destroyed documents, or for any other reason, would have to be viewed in light of the inability of the practitioner to engage in an effective denial.  Thus the readiness of a panel to make a finding of misconduct may be affected by the inability of the medical practitioner to contradict the allegations made against him or her.  In some cases this may lead a panel to be unable to make any of the findings contemplated by s. 50(1).   Further, if the element of alleged abuse of process is a lengthy delay, that fact alone may affect the fact-finding of the panel in a similar way.  There may be other ways in which the facts which might have given rise to an application to stay for abuse of process will become relevant in the course of a formal hearing conducted by a panel under the Act.  A panel complying with its statutory obligations will recognise them and act accordingly.  Further, a panel possesses ample procedural discretion to mould its processes to alleviate, as far as possible, the effect of any prejudice to an accused practitioner arising from a situation which might be capable of amounting to an abuse of process.
82	VCAT similarly has the power, and the duty, to ensure fairness to Mr Guss in relation to such matters in conducting the hearing of the disciplinary proceeding brought against him by the VLSC.
83	I refuse Mr Guss’ application for summarily dismissal on the ground of delay.
Joinder of charges
84	As stated by Bongiorno J in XD no 2, the rules of joinder and severance of criminal charges do not apply to disciplinary cases. 
85	I accept that as part of the Tribunal’s obligation to accord fairness, the general principles as described in Walton and in XD no 2 apply in disciplinary proceedings. But they do not require severance of the charges brought here. 
86	Nor has Mr Guss provided any reasons why severance is required. He has simply asserted that it is. He has simply assumed that because there are eight charges, or three sets of charges, which cover various conduct during the course of the three client matters (and subsequent investigations), that they must be heard separately from each other.
87	This is not a jury trial of criminal charges. It is a professional disciplinary proceeding. Parliament has determined to confer on Tribunal members the duty and the power to conduct disciplinary proceedings in accordance with the Tribunal’s powers and procedures as set out in the VCAT Act. For disciplinary proceedings against legal practitioners, the Tribunal is invariably constituted by an experienced legal practitioner member of the Legal Practice List. 
88	The Tribunal is required to act fairly and in accordance with the substantial merits of the case (s 97 of the VCAT Act). It is bound by the rules of natural justice (s 98 of the VCAT Act). The rules of evidence do not apply, although in certain instances (including in relation to disciplinary proceedings, which impact on the livelihood of regulated professionals) they can operate as a guide. The Tribunal is required to conduct each proceeding with as little formality and technicality, and to determine each proceeding with as much speed, as the requirements of the VCAT Act (which include according natural justice), the enabling enactment (the Uniform Law) and proper consideration of the matters before it permits.
89	It is part of the duty of Tribunal members to consider carefully the evidence relevant to each charge brought, its veracity and its weight. And not to take into account any information relating to other charges which might have an unfairly prejudicial impact. That occurs routinely in the Tribunal. 
90	I do not accept that there needs to be separation of the three sets of charges, and certainly not of all eight.
91	Mr Guss’ application for summary dismissal or strike-out on the basis of the charges being brought together is refused.
Additional matters referred to by Mr Guss in his written submissions, and during the course of argument
92	In amongst his arguments in support of his application concerning joinder and delay, Mr Guss raised a number of other matters. It may be some of them were merely raised as asides. Or were ventilated as complaints about the VLSC generally. Or to give weight and colour to his contentions in relation to joinder and delay. Nevertheless, I mention them now.
93	At [18] and [19] of his submissions, Mr Guss said:
Apart from prejudice to the respondent, the respondent would suffer an substantial burden in having to defend 3 unrelated charges in the one proceeding, and would be oppressive, and hinder a fair trial.
Also different witnesses would be required to give evidence in respect to the 3 separate charges, and different preparation would be required for each which would be extremely burdensome and oppressive and hinder a fair [trial] to the respondent who is unrepresented.
94	Of course, defending these charges is a significant exercise, requiring a lot of effort, especially for a practitioner who is representing himself. 
95	However, the charges were brought at VCAT a year and a half ago, and Mr Guss has been aware of the matters the subject of the charges for some years prior to that. They were listed for a December 2023 hearing on 2 June 2023. So, Mr Guss has had sufficient time to prepare. 
96	I do not accept that the bringing of charges in relation to the three client matters is so burdensome and oppressive as to ‘hinder a fair trial’ for Mr Guss. 
97	Concerning charges 1 and 3, Mr Guss said at [21] of his written submissions, that at a directions hearing on 2 June 2023, the VLSC’s counsel said in opposition to his proposed s 75 application that ‘the applicant wished to use the allegations in charge 1, (Newitt/Kirby) in the 2nd charge (Gray)’.
98	Citing Molyneux v The Victorian Civil and Administrative Tribunal and The Victorian Bar, Mr Guss said, ‘This is impermissible and is evidence of collateral and improper purpose being an abuse of process’.
99	In response to this, the VLSC’s written submissions referred to a statement made at the earlier directions hearing (although noting there was no transcript) suggesting the potential for evidence in relation to the improper receipt of trust monies concerning those complaints to be ‘potentially cross-admissible as tendency (or similar fact) evidence’.  
100	In response to a question from me as to whether it really was the VLSC’s intention to seek to invoke tendency evidence, the answer given was no. 
101	Accordingly, unless and until an application is made to invoke tendency evidence, that is something which need not be considered. The charges will be determined according to the evidence specifically applicable to them. 
102	Concerning Gray, in amongst his submission relating to delay, at [23], Mr Guss suggested, relation to charges 3 and 4: 
These 2 aspects are separate matters and in any event should be severed. Also it is duplitious against the principles of duplicity of charges , see Woods v The Legal Ombudsman [2004] VSCA 247 (Woods).In Paragraph 39 of Woods, Chernov,J stated ‘The rule against duplicity ordinarily prohibits a prosecutor from charging in one count of an indictment, presentment, information or complaint two or more offences provided by the law” 
In the following paragraphs His Honour discusses the principles. Regard however should also be had to the principles concerning joinder set out above.
103	Of course, the rules applicable to the drafting of criminal charges do not apply to disciplinary charges. But the principles underlying them do, in a broad sense, have relevance to the drafting of disciplinary charges. It was not said how the charges offended those principles, such that he is not aware of what has been alleged against him. 
104	Concerning charge 4, Mr Guss referred to matters going to the merits of that allegation. Charge 4 concerns the quality of legal services provided to Mr Gray. It alleges a failure to reach or maintain a reasonable standard of competence and diligence, amounting to unsatisfactory professional conduct, under s 297(1)(a) of the Uniform Law, in that there was a failure to complete the legal work requested between 16 August 2016 in July 2018, and a failure to return funds to Mr Gray upon his request.
105	Mr Guss said in his oral submissions that he had in fact done substantial work on this matter. He said that the amount involved in this dispute was minimal, implying that it was not serious or substantial enough to justify the VLSC bringing it. He said joint instructions were given by Mr Gray and Mr Muchnicki for this retainer. Mr Gray had complained, but not Mr Muchnicki.
106	Mr Guss also said the VLSC had not produced material to support all necessary matters that would need to be proved to make a charge out, although he did not specify what material he was referring to.
107	These are all mattecs for the hearing.
108	With reference to charge 5, (failure to respond to a statutory information request from the VLSC) Mr Guss indicated in oral argument that the VLSC’s allegation is not supported by evidence. Once again, that is a matter for the hearing.
109	Concerning charge 8, Mr Guss said the VLSC relies on the evidence of counsel briefed by him, which is protected by legal professional privilege. That will be a matter for consideration during the hearing, including in relation to any information obtained to which s 466 of the Uniform Law applies.
110	Also concerning charge 8, Mr Guss said the ‘VLSC hasn’t told the full story’. In this regard, it is noted he has so far chosen not to respond to the allegations, nor to provide an outline of argument which identifies in broad terms the issues for determination.
111	To the extent not dealt with already, the matters raised at [24] of Mr Guss’ submissions (quoted above) are all appropriately dealt with at the hearing of the proceeding.
112	It is not clear whether these matters were seriously raised as additional grounds for summary dismissal under s 75.  As is apparent, they were only described in brief terms. In any event, even if they were, they do not amount to a proper or sufficient basis on which such an order under s 75 could be made. They are matters to be dealt with at the hearing.
Conclusion 
113	Mr Guss’ application for these proceedings to be permanently stayed, summarily dismissed, or struck out, is dismissed. 

J. Smithers
Senior Member