A Melbourne barrister who was suspended from practice for three years after being found guilty of tax-related offences has had his penalty reduced by the Court of Appeal.
Mr Matthew Stirling appealed the Victorian Civil and Administrative Tribunal’s 2012 decision to suspend his practising certificate after he pleaded guilty to one charge of professional misconduct and another of unsatisfactory professional conduct.
The charge of professional misconduct related to Mr Stirling’s failure to lodge tax returns over eight years, failure to pay income tax on time over nine years, and failure to lodge BAS returns or pay GST over a period of five years. The second charge arose after Mr Stirling made a false statement to the Victorian Bar that he had been diligent in attending to his lodgement of returns since 2005, when he had in fact received four penalty notices from the Australian Tax Office for late lodgement of BAS returns. A three-person VCAT bench suspended Mr Stirling from practice for three years.
Chief Justice Warren and Justices Neave and Dixon of the Court of Appeal heard Mr Stirling’s appeal in September 2013. In the judgment handed down in December 2013, the Court determined that VCAT had erred by considering conduct that was the subject of one charge as being an aggravating factor in the other charge. The Court of Appeal determined that the penalty imposed by VCAT was made manifestly excessive by factoring in the practitioner’s conduct and applying it to determine a penalty for both charges instead of separately.
The Court determined a new penalty for Mr Stirling that, while recognising the seriousness of his conduct, would ensure that he complied with his taxation obligations, maintain public confidence in the legal profession and facilitate his rehabilitation.
The Court ordered that Mr Stirling be suspended from practice for a period of 30 months; with 24 months wholly suspended for 5 years. The court also reprimanded Mr Stirling and placed a series of conditions on any practising certificate that Mr Stirling receives during the period covered by the orders, including the requirement to engage an accountant to prepare his tax and BAS returns, and the creation of a separate bank account into which he deposit half of all barrister’s fees for paying tax. Other additional requirements were also made relating to professional development training and counselling to be organised through the Victorian Bar.
For further information, see the original VCAT decision and the Court of Appeal decision.