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Applicable principles

4. Section 425 of the LPA provides that if the ACT Civil and Administrative Tribunal (the Tribunal or ACAT) is satisfied that a legal practitioner has been guilty of professional misconduct the ACAT may, amongst other things, reprimand the practitioner and order that the practitioner’s local practising certificate be suspended.

5. The authorities cited by the parties establish the following principles which apply in this case: (a) The object of disciplinary proceedings is the protection of the public and 1 the maintenance of proper standards in the legal profession. (b) Protection of the public is not confined to protection from further default of the practitioner concerned, but extends to the protection of the public 2 against similar defaults by other practitioners.

1 Re Grosse [1996] ACTSC 5 (Grosse) at [14]; Council of the Law Society (ACT) v Giles [2020] ACTSCFC 1 (Giles) at [115]; Law Society (ACT) v Bangura [2024] ACTSCFC 1; (2024) 21 ACTLR 268 (Bangura) at [3] 2 Law Society (NSW) v Foreman (1994) 34 NSWLR 408 (Foreman) at 441.B-C; Giles at [115] (c) The honesty and integrity of legal practitioners in the practice of law is of significant importance and the legal profession has long required the highest standards of integrity not least because significant public interests 3 are involved. (d) Four interrelated interests are involved in the importance of honesty and integrity: (i) clients must feel secure in confiding their secrets and entrusting their affairs to lawyers; (ii) fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues; (iii) the judiciary must have confidence in those who appear before the courts; and (iv) the public must have confidence in the legal profession by reason of 4 the central role the profession plays in the administration of justice . (e) Whilst some aspects of the respondent practitioner’s conduct may be of limited relevance, the willingness to engage in deceptive or dishonest 5 behaviour will generally be of central relevance. (f) The whole of the circumstances must be considered including the nature 6 and circumstances of what was done. (g) Subjective features, such as the character of the practitioner concerned, may be considered, but not in a way that detracts from the core purpose of public 7 protection. (h) Care must be taken in assessing a practitioner’s professed candour and 8 contrition, or assertions of character change.

3 New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 (Cummins); Legal Practitioner v Council of the Law Society (ACT) [2015] ACTCA 20 at [94]; Bangura at [10] 4 Cummins at [20] 5 Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 (Sahade) at [1], [2], [58] 6 Bangura at [8] 7 Giles at [116]; Bangura at [8], [13] 8 Dupal v The Law Society of NSW [1990] NSWCA 56 (Dupal) at 12.23-.28 (i) The views of others (character referees) must be understood in a practical way taking into account, amongst other things, the precise information the referee had been provided with and in what manner it was considered. Care must be taken in assessing the weight to be given to such evidence. A tribunal must form its own views and is entitled to disregard or give little 9 weight to the views of others.

The evidence

6. In addition to the factual findings made in the stage 1 hearing, the applicant relied on the evidence contained in two further affidavits.

7. The first affidavit set out the circumstances and findings in relation to an earlier complaint made against the respondent which resulted in the Council issuing a reprimand and a fine of $1,000 in 2018.

8. That complaint involved appeal proceedings brought by the respondent’s client arising out of proceedings brought by the client against the Commonwealth for workers compensation. Comcare disallowed her claim. The client’s application for review to the Administrative Appeals Tribunal was successful, following which Comcare appealed to the Federal Court.

9. The Council found that the respondent had received an offer of compromise in relation to the appeal which he then failed to provide or convey to his client. The Council was satisfied that the respondent was duty bound to discuss the basis for the appeal and the offer with his client, and to seek his client’s informed instructions whether to accept the offer, make a counteroffer or to defend the appeal. The Council determined that the respondent’s failure to do those things amounted to unsatisfactory professional conduct.

10. The second affidavit was affirmed by Mr Oreskovic, the respondent’s former client. It was to the effect that he has not received any compensation from the OND in relation to the claim for which he retained the respondent, nor any

9 Sahade at [1], [2], [46]; Foreman at 448.G-449.D compensation from any other person. No compensation order under section 442 of the LPA was sought by the applicant in these proceedings.

11. The respondent read one affidavit affirmed by him and tendered three character references.

12. The respondent’s affidavit revealed that he was now a little over 58 years of age. He had commenced legal practice as a law clerk some 37 years ago and was promoted to manage a practice within a law firm about five years later.

13. He was admitted as a legal practitioner in 1997 and obtained an unrestricted practising certificate in about 2004. He has held both senior and consulting roles with various law firms since.

14. He has contributed to the community in a number of volunteer roles from the early 2000’s until about 2016.

15. In relation to the conduct the subject of these proceedings, he said: “I have admitted and acknowledged and continue to acknowledge and reflect upon my failure to Mr Oreskovic and my failure to the ACT Law Society and under the Legal Profession Act. I am ashamed and remorseful for my conduct and it has weighed heavily on me and will continue to do so.”

16. The three referees were all practitioners practising locally. Two were barristers and one a solicitor. One had known him for some 35 years, the second for about 25 years and the third for about 20 years.

17. The referees each said that they had read the stage 1 decision, said that the conduct the subject of that decision was, in summary, not consistent with the respondent they knew (personally or professionally). One was “surprised” at the conduct found, the second was “very surprised” and third was “shocked”.

18. Each referee said in substance that they regarded the respondent as a person of integrity who was well regarded in the profession, and, in their experience, he had always provided his clients with prompt and sound advice. They believed the respondent to be a decent and honourable person.

19. One referee said that he had had a “difficult conversation” with the respondent in which the respondent expressed his deep shame and deep remorse in relation to his conduct. Another said that he had spoken to the respondent on numerous occasions since the stage 1 decision was delivered, and that during those discussions the respondent had been “distressed at the consequences of his actions” and “expressed deep embarrassment and remorse at what transpired”.

20. I shall turn to the parties’ submissions and comment on some of them immediately where convenient to do so in order to aid comprehension of these reasons.

The applicant’s submissions

21. The applicant submitted that the respondent should be publicly reprimanded, and his practising certificate suspended for a period of 12-18 months.

22. The applicant submitted that the respondent’s conduct, viewed in its totality, was extremely serious. It involved: (a) serious neglect of the client’s matter; (b) lying to the client; (c) deliberately omitting to tell the client that the limitation period for his claim had expired during the period 15 September 2021 to October 2022; and (d) deception of the client “to cover up” the practitioner’s neglect.

23. On the findings made in the stage 1 decision, I accept those submissions.

24. The applicant submitted that the respondent’s conduct was the antithesis of what it meant to be a legal practitioner, which I accept in the sense that what the respondent did as identified in [22] above is the opposite of how the respondent ought to have conducted himself.

25. The applicant submitted that Mr Oreskovic had suffered loss. The applicant submitted that had it not been for the respondent’s conduct it was almost certain that Mr Oreskovic would have received compensation of at least $39,000.

26. I do not accept that submission. The last offer made by the OND was $39,000 plus costs, and that offer was rejected on instructions (and, on instructions, a counteroffer of $87,500 inclusive or repayments but plus costs was made). Therefore, there was no offer open for acceptance at the time of the events relevant to the present proceedings.

27. What Mr Oreskovic lost was his right to claim damages and not the lost opportunity to accept an offer of $39,000 plus costs. What that right was worth was a function of his prospects of success, the likely date when the action would have come to trial, (but for the respondent’s conduct), the evidence that would or should have been available to Mr Oreskovic at that time, the relevant principles of law then governing the assessment of damages, the 10 question of contributory negligence and like matters.

28. The quantum of that loss was not explored in the present proceedings, nor could it reasonably have been in a case such as the present without the incurring of substantial costs to both parties. But it seems clear that the value of the lost right to claim damages was more than negligible since the OND placed a value on that claim in making its offer of $39,000 plus costs. I do not think the precise value of the lost right to claim damages as being relevant, it being sufficient to stake into account that Mr Oreskovic lost something of value.

29. The applicant submitted that the respondent’s insight into his wrongdoing and expressions of remorse were belated. I accept that submission in part.

30. The respondent gave evidence of a version of the central conversation which was ultimately not accepted where it conflicted (in substance) with the version given by Mr Oreskovic, his corroborating witnesses, the objective evidence, the contemporaneous events and the inherent probability of events. But I did not find that the respondent’s evidence in that regard was an invention. In other words, the respondent’s evidence on that issue was mistaken rather than knowingly false. In that way, he could not have been remorseful on that matter at an earlier point in time for the simple reason that he remembered events differently.

10 See for example, Phillips v Bisley [1997] NSWCA 246

31. The same could not be said for what I called in the stage 1 decision the respondent’s passive dishonesty. The passive dishonesty was to fail to correct Mr Oreskovic’s incorrect belief that there was an offer from the OND which was open for acceptance. The respondent acknowledged he knew that Mr Oreskovic’s belief was incorrect from the time he received Mr Oreskovic’s email on 15 September 2021 and agreed that he should have communicated with Mr Oreskovic at that time to correct that incorrect belief. No early expression of remorse was expressed in relation to that factual matter.

32. One of the respondent’s referees said that: “During our conversation, (the respondent) expressed to me his deep shame in not simply telling his client about the expiry of the limitation period.”

33. That “shame” (or remorse for that conduct) was not expressed, as far as I can see, earlier than in that reference or in the respondent’s affidavit of April 2025.

34. Having said that, the respondent did acknowledge from the very beginning of his correspondence with the applicant that he had not acted diligently and competently to protect Mr Oreskovic’s rights. Nevertheless, the point was obvious (as the respondent’s answers in cross-examination on the topic reveal) and the respondent’s expression of remorse (quoted above) was so brief and generalised that I have given it limited weight.

35. I should not overlook the fact that in the respondent’s earlier correspondence with the applicant he claimed to have held the view in September 2021 that the limitation period had arguably not expired at that time. In his March 2023 correspondence with the applicant he acknowledged that that view was incorrect, but the important point is that even if he held that view in September 2021, he did not speak to his client about that matter nor did he seek counsel’s advice to determine whether he was correct.

36. The applicant submitted that there had been prior misconduct by the respondent. I have described that matter earlier in these reasons. As accepted by the applicant, and correctly with respect, whilst that matter is not irrelevant, the nature of the misconduct involved in that matter and the time which has since elapsed render that matter of little weight.

37. The applicant submitted that the respondent was unfit to practise, at least temporarily.

38. The applicant submitted that the character references could only be given limited weight, they did not explain the respondent’s conduct and they did not specifically deal with how the respondent acted under pressure (per Foreman at 449.B), which is what the applicant submitted this case was about.

39. I accept the first two of those three submissions but disagree with the third. There was no pressure on the respondent at the time of the events in question other than perhaps the sudden realisation when telephoned by Mr Oreskovic on 15 September 2021 that the limitation period had expired.

The respondent’s submissions

40. The respondent submitted that the only penalties that should be applied were a reprimand and fine. Alternatively, if a suspension were warranted, he submitted that a reprimand and a suspension of three to six months was the appropriate penalty.

41. The respondent emphasised his long time in practice, particularly with an unrestricted practising certificate for 20 years, with only one blemish on his record, and that that blemish did not include any allegations or findings of dishonesty. The respondent analogised his position to someone who had had a long, unblemished driving record, then committed a driving offence, was found or pleaded guilty but no conviction was subsequently recorded.

42. There is much force in the submission that this has been the respondent’s sole dishonesty transgression in a long legal career, but the transgressions the subject of this case were very serious. I am not sure that the analogy used applies because the situation described includes a not overly serious driving offence. Where the objective seriousness of a driving offence was significant, it was not generally appropriate to record no conviction: see, for example, Cantwell v Nozhat (2017) 79 MVR 376. In the case before me, the transgressions ranged from serious to very serious and it would be inappropriate to not suspend the respondent’s practising certificate.

43. The respondent submitted that whilst he contested some issues in the proceedings, he had admitted from the beginning that he had not acted diligently and competently to protect Mr Oreskovic's rights in allowing his claim to become statute barred.

44. By reference to some other authorities mentioned in submissions, the respondent submitted that his misconduct was not sustained as in those other cases, or, at least, not as sustained as in the other cases. However, whilst that is true, in this case, in relation to the one occasion of a dishonest conversation, the passive dishonesty of allowing his client to continue to believe for many months that there was an offer open for acceptance was sustained conduct, as was the failure to competently and diligently attend to his client’s case (the subject of charges 1 and 3) over a period of time.

45. The respondent submitted that, at least in relation to the conversation of 15 September 2021, that he panicked, presumably because he suddenly realised Mr Oreskovic’s claim had become statute barred. To support that factual assertion the respondent relied on a passage in one of his character references in which it was said: Knowing (the respondent) to be an intelligent and honourable person, I can see how he must have panicked and erroneously reasoned that he was at only limited fault. After all, it can be hard to accept blame when to do so challenges the nature of the person one believes oneself to be: decent and honourable.

46. The difficulty with the submission is that it was not supported by any evidence from the respondent. That is, the respondent did not give any evidence to the effect that he panicked on that (or any other) occasion. In those circumstances I cannot accept the submission based only on the conjecture of a character witness. The most I think I can take from the passage quoted is that the referee considered the respondent’s acts and omissions on that occasion to be out of character.

47. The respondent submitted that in relation to the respondent’s previous blemish, the Council had found him to be “generally a competent and diligent solicitor”. There is merit to that submission, and in general terms that factual finding corroborates the opinions of the three referees.

48. In response to the applicant’s submission that Mr Oreskovic has suffered loss, the respondent submitted that Mr Oreskovic would have a “rolled gold” claim against the respondent in negligence. Whilst the negligence part of that case may meet that description, there would be other less certain issues to be determined such as causation and what the value of the lost cause of action was. Nevertheless, the respondent accepted that Mr Oreskovic had lost something of value by reason of the respondent’s conduct.

Decision

49. It is common ground that the respondent should be reprimanded. That result is inevitable given the findings in the stage 1 decision.

50. I do not accept the respondent’s submission that a public reprimand and a fine would be sufficient in the circumstances. Rather, I think a reprimand and a period of suspension is warranted.

51. Summarising the relevant matters in chronological order, the respondent failed to advise his client of the approaching expiration of the limitation period after negotiations with the OND had effectively come to an end in late 2020 and did nothing to protect Mr Oreskovic’s rights between then and the expiration of the limitation period in January 2021.

52. After January 2021, the respondent failed to inform his client that the limitation period had expired.

53. When Mr Oreskovic telephoned the respondent in September 2021, and notwithstanding that the respondent appreciated that the limitation period had expired some six months earlier, the respondent did not inform his client that the limitation period had expired or, on his mistaken view which he claimed to have held at the time, namely that it may or may not have expired. Even if he genuinely held the view that the limitation period may not have expired, he stood by and did nothing to protect Mr Oreskovic’s rights consistently with that view.

54. Rather, on 15 September 2021 the respondent dishonestly told his client that there was an offer from the OND available for acceptance. He continued that dishonesty by attempting to engage the OND in settlement negotiations all the while knowing that the limitation period had expired. He went so far as to email Mr Oreskovic later on 15 September to say that he would “advise them that $39,000 plus costs is accepted” (emphasis added).

55. Even on his own case, the respondent was of the view (in September 2021) that Mr Oreskovic was under the misapprehension that there was an offer from the OND available for acceptance and yet failed to correct that misapprehension.

56. After the OND’s communication in September 2022 in which the OND said that Mr Oreskovic’s claim was statute barred, the respondent failed to advise his client of the OND’s view and failed to offer Mr Oreskovic any advice in relation to that communication and its potential ramifications.

57. In my view a suspension from practice is warranted to protect the respondent’s clients from a repeat of the respondent’s serious failures and dishonesty toward Mr Oreskovic, to protect the public from similar instances in relation to other practitioners and to mark the seriousness of the respondent’s conduct.

58. There was little put by the practitioner by way of explanation for that conduct. Often, he was asked in cross-examination why he did not do particular things (such as advising his client that the limitation period had expired) and the respondent most often responded to the effect that he did not know.

59. Two things that did not impress me in the sense of revealing the respondent’s attitude toward frankness to clients were some faint attempts to possibly explain his conduct. One attempt was the explanation put forward in the respondent’s early communications with the applicant that he thought the limitation had not expired because he thought: … the limitation bar was arguably not in place on the basis of the decision and practice in Douch v Betts and Insurance Australia Ltd t/as NRMA Insurance [2013] ACTSC126 and with reference to Casey v Alcock (2009) 3 ACTLR1. I now understand that I was wrong in forming that view on the basis of the subsequent decision in Teoh v Greenway (2015] ACTSC133. Furthermore I was of the view that arguably the bar did not yet apply on the basis that the Nominal Defendant had not yet admitted liability, in breach of its obligation under s 97(1](b)(i), this may well still be a live issue.

60. That position was not maintained in cross-examination.

61. The second was his purported explanation given in his affidavit of June 2024 as to why he did not correct what he said was Mr Oreskovic’s misapprehension about their conversation on 15 September 2021. The respondent said: The complainant's email of 16:23 on 15 September 2021 did not accurately reflect our conversation and nor did I confirm same. I acknowledge that I should have taken the time to clarify same. I was using either my phone or Ipad to respond to the complainant and kept my response short.

62. As I said in the stage 1 decision, the respondent could easily have telephoned Mr Oreskovic to correct the misapprehension.

63. Those two matters suggest to me that the respondent’s expression of remorse and professed appreciation of his wrongdoing are not as extensive as they should be.

64. In addition, the respondent said in his affidavit of April 2025 that he “admitted and acknowledged” his failure to Mr Oreskovic, the ACT Law Society and under the Legal Profession Act, yet he did not specify what failure he is referring to.

65. In communications with the applicant and in the proceedings, he had always admitted that he had not acted diligently and competently to protect Mr Oreskovic's rights in allowing the claim to become statute barred, but he denied lying to his client and denied he had failed to act in good faith. His expression of remorse, in the generalised terms in which is expressed and without identification of the specific failures which he said he admitted, is therefore of reduced weight.

66. The respondent’s referees were generally supportive and considered the respondent’s conduct as out of character.

67. The misconduct was generally serious and the dishonesty toward his client was very serious.

68. The respondent is an experienced practitioner with an unblemished record except for the one occasion mentioned earlier in these reasons, yet there has not been any real explanation for the conduct. No evidence of ameliorating conditions such as illness or stress was provided, and his client has lost the value of his cause of action against the OND.

69. In my view the respondent should be suspended from practice for a period of nine months. In my view a period of suspension of 12-18 months as suggested by the applicant is overly harsh for a senior solicitor with an almost unblemished professional record. Nine months is a substantial period of time during which the respondent may not practise. On the other hand, a period of suspension of 3 - 6months as suggested by the respondent is too light for such serious transgressions.

70. Section 433 of the LPA provides that if the ACAT finds a legal practitioner guilty of professional misconduct, the ACAT must order the practitioner to pay costs (including costs of the relevant council and the complainant), unless the ACAT is satisfied that exceptional circumstances exist. No exceptional circumstances exist, nor were claimed to exist by the respondent. It follows that the respondent should pay the applicant’s costs.

Orders

71. I make the following orders: 1. The respondent be publicly reprimanded. 2. The respondent’s local practising certificate be suspended for a period of nine months commencing from the date being 28 days after the date of these orders. 3. The respondent is to pay the applicant’s costs.

……………………………….. Acting Presidential Member G Curtin SC Date(s) of hearing: 7 May 2025 Counsel for the Applicant: Mr D Moujalli Counsel for the Respondent: Mr W Sharwood