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The Application for Disciplinary Action dated 3 February 2025 is amended as follows: (a) Delete paragraph 35 on page 18 in relation to charge 3; (b) Delete paragraph 36 on pages 18-19 in relation to charge 4; and (c) Delete the references to charges 3 and 4 in paragraphs 37 and 38 on page 19.

………………Signed………… Senior Member R Orr For and on behalf of the Tribunal REASONS FOR DECISION

Introduction 1. This is an application under section 419 of the Legal Profession Act 2006 (Act) concerning conduct of the respondent in relation to building work performed at his home.

2. The respondent is a solicitor in the ACT and holds an unrestricted practising certificate. At the time of the admitted conduct, he was a partner in a law firm and had been in legal practice for over 20 years.

3. The applicant brought four charges against the respondent, summarised as follows: (a) Charge 1: Contacting another solicitor’s client in breach of rule 33.1 of the 1 Legal Profession (Solicitor) Conduct Rules 2015 (Rules); (b) Charge 2: Sending approximately 100 discourteous and abusive text messages to the respondent’s builder, which was likely to bring the legal profession into disrepute in breach of rule 5.1; (c) Charge 3: Sending discourteous emails to his builder’s lawyers, using his work email account and signature block, which contravened rule 4.1 and/or was likely to bring the legal profession into disrepute in breach of rule 5.1; and (d) Charge 4: Sending a discourteous email to another law firm engaged by his builder, using his work email account and signature block, which contravened rule 4.1 and/or was likely to bring the legal profession into disrepute in breach of rule 5.1. 4. During the hearing, the parties filed a joint submission in which: (a) the respondent admitted the conduct in Charges 1 and 2; (b) the applicant withdrew Charges 3 and 4;

1 These Rules have now been amended, and in the current Legal Profession (Solicitor) Conduct Rules 2025 (No.2) there are some significant differences in the provisions relevant here (c) the parties agreed that that respondent’s conduct in Charges 1 and 2, when considered separately or globally, is properly characterised as unsatisfactory professional conduct as defined in section 386 of the Act; (d) the parties proposed that the tribunal impose a sanction in the form of a public reprimand and payment of a $10,000 fine; and (e) the parties proposed the respondent pay the applicant’s costs in the proceedings on a party/party basis.

5. We made orders by consent at the end of the hearing. These reasons confirm and 2 explain that decision.

Summary of this decision

6. The Tribunal is satisfied that in accordance with the agreement of the parties, the respondent dealt directly with the client of another practitioner in breach of rule 33.1, and sent numerous messages which were likely to a material degree bring the profession into disrepute in breach of rule 5.1, and that this constituted unsatisfactory professional conduct. The Tribunal agrees that a public reprimand and payment of a fine of $10,000 is an appropriate sanction.

Material before the Tribunal

7. The applicant provided an application for disciplinary action dated 3 February 2025. The applicant also provided a range of documents in relation the matter, set out in the index of documents. As noted, the parties provided joint submissions dated 20 May 2025. The respondent provided an affidavit affirmed on 18 June 2025.

8. The Tribunal held a hearing in this matter on 30 June 2025.

Tribunal’s power to make the proposed consent orders

9. The Tribunal’s power to make orders by consent is set out in section 55 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). Section 55(1) requires the tribunal to be satisfied that the proposed orders would be both:

2 In these reasons, a reference to ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the members who heard the application (a) within the powers of the tribunal; and (b) appropriate for the tribunal to make.

10. In relation to jurisdiction, we were satisfied the Tribunal had power to make the proposed orders on the basis that:

(a) section 419 of the Act authorised the applicant to apply to the tribunal for an order in relation to a complaint against the respondent; (b) the tribunal could decide, under section 425(1) of the Act, that the respondent was guilty of unsatisfactory professional conduct; (c) consequently, the tribunal was empowered to make orders for one or more of the sanctions provided in section 425(3) and (5) of the Act; and (d) the proposed orders on sanction were consistent with those sanctions.

11. In relation to whether the proposed orders were ‘appropriate’, as a general rule, the tribunal is reluctant to ‘go behind’ a proper agreement reached by the parties, particularly where they are legally represented, unless an exceptional 3 circumstance exists.

12. This must be balanced with the tribunal’s role and function in disciplinary proceedings, which is to set standards for the profession and protect the public.

13. It is unnecessary to determine whether we would have made the same orders had the matter proceeded to a full hearing, but we do need to be satisfied that the proposed orders are an appropriate response to the respondent’s admitted conduct 4 having regard to the particular facts and circumstances of this case.

The agreed facts

14. Key agreed facts relating to the respondent’s admitted conduct are as follows.

3 In relation to legal practitioners, see for example Council of the Law Society of the ACT v Legal Practitioner 20214 (Peter Christensen) [2022] ACAT 33 ( LP 20214) and Council of the Law Society of the ACT v Legal Practitioner 20215 [2022] ACAT 34; see also Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68 ( Izzard) and Medical Board of Australia v Dielenberg [2024] ACAT 40 4 LP 20214 at [92]; Nursing and Midwifery Board of Australia v Augustin [2022] ACAT 54 at [46]-[47] citing LP 20214; Izzard at [10]

15. On 8 November 2022, the respondent and his wife entered into a major works contract with a construction company (Builder) for construction works at their home in the ACT. The works had commenced in September 2022 and were extensive.

16. On or about 20 June 2023, the Builder advised the respondent that the works had reached practical completion. The respondent took occupation of the property shortly thereafter.

17. On 9 July 2023, the respondent sent an email to the Builder containing a remedial notice and notice of default under the contract. The email was sent from his work account and included his professional signature block.

18. On 18 July 2023, the respondent sent a further email to the Builder advising that the respondent was “cataloguing” all defects, would lodge a complaint with the ACT Planning and Land Authority and challenge the Builder’s licence. The respondent signed off “I look forward to hearing from you or your solicitors with a substantial offer of compensation”. Again, the email was sent from the respondent’s work account and included his professional signature block.

19. On 23 July 2023, the respondent sent approximately 100 text messages to the Builder. The messages included “… your workmanship sux shit”, “Dodgy!!”, “we can’t even use this toilet you useless builder”, “Because I’m going to lodge a massive counter-claim and it’ll give me the opportunity to post our dispute on my linked-in” and “You tried to short change me; I’m going to bite you hard”.

20. On 28 July 2023, the Builder’s solicitor (MV Law) issued two letters to the respondent containing an offer of compromise and asking the respondent to send all future correspondent to the solicitor’s office.

21. On 30 July 2023, the respondent replied to MV Law advising that he had not sought separate legal advice and advised that the building work was unsatisfactory. The email was sent from the respondent’s work account and included his professional signature block.

22. Between 30 July 2023 and 2 August 2023, the respondent sent nine emails to MV Law asking questions, advising of defects and demanding responses. The emails were sent from the respondent’s work account and included his professional signature block.

23. MV Law replied twice during that period, advising it needed to obtain instructions and asking the respondent to consolidate his queries into one communication to enable MV Law to obtain instructions and respond more efficiently.

24. On 5 August 2023, the respondent sent more text messages to the Builder, including “You dodgy bastards” and “We are going to expose you so everyone knows about [your company]!!! FU”.

25. Between 5 August 2023 and 9 August 2023, the respondent sent six emails to MV Law. Among other things, the respondent advised he was “furious”, and threatened that “we are going to expose your client for the completely shoddy workmanship it has demonstrated on this house”, that “once we are finished with this process everyone will certainly know who [the Builder] is” and that “I will be aggressively chasing [the client] personally”. The emails were sent from his work account and included his professional signature block.

26. On 10 August 2023, the respondent sent a suite of text messages to the Builder. These included “Hey, given your lawyer is not even responding to me”, “I’m coming after you personally”, “I’m going to bankrupt …[the Builder]”, “… there will be no phoenix company arising from your ashes”, “FU”, “… I’m going to post this defects list on my Instagram”, “Come back to me with an offer of $200k and I’ll consider it”, and “run and hide”.

27. On 11 August 2023, the respondent sent an email to MV Law. The respondent raised concerns about MV Law’s “lack of a response” and stated “As I have not received any response from you, I presume you are no longer retained by …[the Builder], and as such, I have re-initiated my contact direct with the managing director to make it clear to him that he will not be getting away with the appalling mess he has left us with. No way”.

28. Also on 11 August 2023, a different law firm (HLG) engaged by the Builder issued a cease and desist letter to the respondent. The letter required the respondent to stop communicating with the Builder and its officers and employees, except through a solicitor.

29. Later that day, the respondent sent two emails to HLG. The emails insinuated that the Builder had engaged in criminal conduct, commented that the respondent was going to print off HLG’s email and use it as “TP” (presumably toilet paper) and warned HLG to make sure it had money in trust “because I hear … [the Builder] is on the brink”. The emails were sent from the respondent’s work account.

30. On 22 August 2023, the respondent emailed MV Law raising further concerns about building defects. He stated he had not read a recent email from MV Law and that “I presume it says a lot of the same rubbish that your client has been peddling for some time…”.

31. Having reviewed the documents and evidence filed by the parties, we were satisfied the agreed facts accurately described the respondent’s conduct relevant to these proceedings.

The Rules

32. The Rules are made under section 580 of the Act and apply to any legal practitioner who holds a restricted or unrestricted practising certificate issued by the ACT Law Society (and certain other practitioners). Section 585 of the Act provides that the Rules are binding on legal practitioners to whom they apply and non-compliance can constitute unsatisfactory professional conduct or professional misconduct.

33. The following rules were relevant to the actions of the respondent at issue in these proceedings. We note that these provisions have subsequently been amended in significant respects.

Rule 5 – Dishonest and disreputable conduct 5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to: 5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or 5.1.2 bring the profession into disrepute. … Rule 33 – Communication with another solicitor’s client 33.1 A solicitor must not deal directly with the client or clients of another practitioner unless: 33.1.1 the other practitioner has previously consented; 33.1.2 the solicitor believes on reasonable grounds that: (i) the circumstances are so urgent as to require the solicitor to do so; and (ii) the dealing would not be unfair to the opponent's client; 33.1.3 the substance of the dealing is solely to enquire whether the other party or parties to a matter are represented and, if so, by whom; or 33.1.4 there is notice of the solicitor’s intention to communicate with the other party or parties, but the other practitioner has failed, after a reasonable time, to reply and there is a reasonable basis for proceeding with contact. The charges Charges 1 and 2

34. The respondent admitted Charges 1 and 2. He accepted that: (a) By sending text messages to the Builder on 5 and 10 August 2023, the respondent dealt directly with another solicitor’s client in breach of rule 33.1. (b) By sending text messages to the Builder on 23 July 2023 and 10 August 2023, the respondent engaged in conduct which was likely to a material degree to bring the legal profession into disrepute in breach of rule 5.1.

35. We agree that the respondent’s admitted conduct establishes the applicant’s allegations in Charges 1 and 2, as follows.

36. In relation to Charge 1, we are comfortably satisfied that from 28 July 2023, the respondent knew that the Builder was represented by MV Law, that he was to communicate only via the lawyers, and that the Builder did not consent to him corresponding directly with its officers or employees. The respondent did not give notice of his intention to communicate directly with the Builder and wait for a reasonable time to pass.

37. Further, we agree that the respondent could not have formed any reasonable belief that urgent circumstances existed as to require him to make direct contact with the Builder, nor that the substance of his communications would not be unfair to the Builder. Rather, it appears that the respondent’s emotional involvement in the building dispute severely compromised his objectivity and patience, leading to persistent attempts to resolve the matter directly with the Builder and without regard to the appropriate process.

38. In relation to Charge 2, we agree that the respondent’s text messages were likely to bring the legal profession into disrepute. They were insulting, harassing and threatening. It makes no difference that the messages were sent in the “heat of the moment”: the impact on their recipients and the reputation of the legal profession is the same. It is also relevant that, before sending the text messages, the respondent had sent remedial and contract default notices from his professional email account, so there could be no confusion that he was a lawyer.

Charges 3 and 4

39. These charges related to the respondent’s interactions with the lawyers acting for the Builder.

40. The applicant advised the Tribunal at the final hearing that it did not press Charges 3 and 4.

41. The respondent agreed to the underlying facts that were the subject of these charges, but made no comment on his conduct because the charges had been withdrawn.

42. In these circumstances, the Tribunal is unable to make findings on Charges 3 and 4.

Agreed characterisation of the conduct

43. ‘Unsatisfactory professional conduct’ is defined in section 386 of the Act as follows (emphasis added): unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

44. Section 389 of the Act provides that a contravention of the Act can constitute unsatisfactory professional conduct. By operation of section 104(1) of the Legislation Act 2001 a reference to a law, in this case the Act, includes a reference to the statutory instruments made under the law. As noted, section 585 of the Act also provides that the Rules are binding on legal practitioners to whom they apply and non-compliance can constitute unsatisfactory professional conduct or professional misconduct.

45. The respondent submitted that he communicated with the Builder in his personal capacity, and not as a solicitor.

46. We accept that the respondent was not acting for a client and his communications were not made in the course of being ‘engaged’ in legal practice as a solicitor for another person.

47. However, we were satisfied when making our decision that, by using his firm’s email account and his professional signature block, a sufficient ‘connection with the practice of law’ was established for the respondent’s conduct to fall within the definition of unsatisfactory professional conduct. The respondent is a property and construction lawyer with specialist experience in building disputes. He was also a partner at his firm, a role that carries significant standing and professional influence. In those circumstances, his decision to correspond with the Builder ostensibly as a lawyer, combined with the threatening and intimidating tone and content of that correspondence, could reasonably be perceived as an attempt to use his professional status to apply pressure and leverage a swift resolution in his favour.

48. Further, whilst the text messages did not refer to the respondent’s legal practice, they were sent after he used his work email account to send default and remedial notices under the contract. By that time, the relevant professional connection had 5 been established.

49. Further, as noted, the relevant rule 5.1 specifically referred to engaging in conduct in the course of legal practice or otherwise, and the relevant rule 33.1 did not, at the time of the admitted conduct, require the solicitor to be acting for a client.

50. We agree with the parties that the respondent’s conduct the subject of Charges 1 and 2 (only) should be characterised as unsatisfactory professional conduct. We are not satisfied that a finding of professional misconduct would be appropriate without other, more serious, conduct such as dishonesty or where misconduct continued after a warning that the practitioner may be in breach of their legal or ethical obligations. Whilst each case must be decided on the particular facts and circumstances, this approach appears consistent with other disciplinary matters 6 involving discourteous conduct.

Proposed consent orders on sanction

51. The principles guiding the determination of disciplinary orders for legal practitioners were considered in Council of the Law Society of the ACT v LP 7 182022 (Benjamin Aulich), and relevantly include: (a) the primary purpose of imposing sanctions in disciplinary proceedings is to protect the public and maintain public confidence in the legal profession; (b) whilst punishment may be incidental to the imposition of a sanction, that is not the objective of the jurisdiction; and (c) the protection achieved by a sanction includes deterring the legal practitioner from repeating the misconduct and deterring other practitioners

5 We recently became aware of the NCAT’s decision in Council of the New South Wales Bar Association v GWY [2026] NSWCATOD 23, where the tribunal considered whether a sufficient connection with the practice of law would be established in circumstances where a legal practitioner’s conduct related to a personal matter. However, as the circumstances in that case were very different to those in this case, and the parties in this case were not afforded an opportunity to make submissions on that issue, we accordingly mention it for completeness and because it may require consideration in future disciplinary cases with similar facts 6 See, for example, Council of the Law Society of the ACT v Legal Practitioner 201907 (Darren Carden) [2019] ACAT 76; Legal Services and Complaints Committee v Lourey [2025] WASC 569; Council of the Law Society of NSW v Sideris [2024] NSWCATOD 3 (upheld on appeal) 7 [2024] ACAT 43 ( Aulich), see especially [42] and [88]-[101] “who might be tempted to fall short of the high standards required of 8 them”; and (d) insight and remorse, where demonstrated, may be taken into account when considering the risk of reoccurrence.

52. Where the parties agree on sanction, these principles assist in the assessment of whether the proposed sanction is appropriate for the purpose of section 55 of the ACAT Act.

53. The parties proposed the following sanction: (a) a public reprimand pursuant to section 425(3)(e) of the Act; and (b) a fine of $10,000 pursuant to section 425(5)(a) of the Act.

54. The respondent accepted that his admitted conduct fell below the standard of competence and diligence expected of a reasonably competent legal practitioner. He does not have a prior disciplinary history.

55. A reprimand is a formal and public denunciation of the respondent’s conduct. It is serious and recognised to have a detrimental effect on a practitioner’s 9 reputation, professional and business interests. As the tribunal acknowledged in Aulich, further embarrassment will follow from publication of the tribunal’s 10 reasons. The deterrent effect of that reputational impact should not be underestimated.

56. In relation to the proposed fine, the maximum fine the Tribunal can impose is $25,000 for unsatisfactory professional conduct and $75,000 for professional 11 misconduct and so a fine of $10,000 is at the low end of the scale. In deciding whether the proposed fine was appropriate, we had regard to the purpose of imposing a penalty which is protective and not punitive.

8 Aulich at [42] citing Council of the Law Society of NSW v Alkhair [2022] NSWCATOD 111 at [181] 9 Council of the Law Society of the ACT v LP 202103 (Jeffrey Silk) [2021] ACAT 105 at [69] 10 Aulich at [89] 11 Act, s 427(1)(b)

57. We are satisfied that the imposition of a $10,000 fine, together with a public reprimand, is sufficient in this case to protect the public interest and interests of the legal profession.

58. On that basis, we were satisfied that the proposed orders on sanction were both within power and appropriate.

Costs

59. The parties proposed that the respondent pay the applicant’s costs on a party/party basis as agreed or assessed. We were satisfied an order to this effect was within power and appropriate, having regard to section 433(1) of the Act which gives the tribunal a wide discretion to award costs, and the general principle that costs are awarded to compensate a successful party.

60. Accordingly, we made the proposed order on costs.

……………………………….. Senior Member R Orr For and on behalf of the Tribunal

Date of hearing: 30 June 2025 Solicitor for the Applicant: Mr S Harper, Thomson Geer Counsel for the Respondent: Mr A Opas Solicitors for the Respondent: Ms A Bai, Mills Oakley