Forster v Legal Services Board

Forster v Legal Services Board - [2011] VCAT 2216 - VCAT 2011 case summary — Zoe

[33]

In resolving to bring the application to appoint a receiver to the law practice, the Board relied on a report of an inspection of the law practice carried out by trust account inspectors employed by the Law Institute of Victoria Ltd (the LIV) in November and December 2008. The report, dated 28 April 2009 (the Chun Report), was prepared by LIV inspector, Mr Colin Chun on the basis of the inspection carried out by Mr Chun and a former LIV inspector, Ms Val Kozovska, (who left the employ of the LIV on 24 February 2009).[15]
Mr Chun and Ms Kozovska examined a sample of 12 of the 82 Melbourne Voyager files handled by the law practice.[16]
The Chun Report identified irregularities in the law practice's trust account and records, which constituted breaches of the Act and Regulations by the law practice. These included failure to deposit trust money into the general trust account kept by the law practice (s 3.3.13); failure to disburse trust money in accordance with the directions given by the client (s 3.3.14(1)(b)); failure to account for trust money as required by the regulations (s 3.3.14(3)); deficiencies in the law practice's trust account, principally arising from the law practice appropriating trust moneys for the payment of invoices that included disbursements that had already been paid from the trust account (s 3.3.21); and failure to notify irregularities in trust accounts (s 3.3.22).[17]
The Chun Report identified two main types of breaches of the trust account provisions:
- (a) in a number of files, the same item of disbursement had been billed twice to the client and paid twice ("the double billing of disbursements"); and
- (b) in nine of the files examined, there had been a double payment of disbursements by the client on a slightly different basis. Disbursements were billed once, and paid once from funds held in trust for the client, but then subsequently appropriated or deducted from settlement moneys received on behalf of the client ("the double payment of disbursements") in what her Honour noticed was "on a slightly different, but more troubling basis."[18]

[103]

At other times the Applicant gave lengthy answers which dealt with issues tangential to the question he was being asked.
I did not find the Applicant to be a credible witness and would be reluctant to rely on his evidence in respect of any contested issue, in the absence of persuasive corroborative material.
The Applicant makes the following general submissions in support of his application:
- ➢ The receivership is a very draconian process and he has been punished enough for his mistakes.
- ➢ He is a conscientious, competent and hard working solicitor who has been in practice for about 35 years and has engaged in very difficult no win no fee litigation for parties such as the victims of religious sexual abuse and the Australian veterans where there has been a huge disparity in power and resources. In relation to Melbourne-Voyager clients he has worked tirelessly to achieve broadly successful results for 15 years in a stressful, protracted, costly and infamous litigation against the Commonwealth defendant.
- ➢ He has learnt from his past mistakes and took appropriate rectification measures.
- ➢ After 15 years of exhausting litigation ending it was not inappropriate for him to be unsure as to his future direction. The Applicant's practice was not effectively wound up but dramatically downsized due to the ending of the litigation. He wishes to continue to practise as evidenced by his establishment of a further practice.
- ➢ He is aged 62 years and unlikely to be able to obtain further employment in another field.
- ➢ He has been at the forefront of changes to the legal system designed to encourage fair, cost effective and efficient justice.
- ➢ He wishes to continue to provide services to litigants seeking justice who are unlikely to be able to obtain representation due to their inability to pay for solicitors work in the normal way, the complexity of their cases or that their matters involve difficult issues.
- ➢ He accepts and has apologised to the court for his emotions displayed in court. That the Receivership and other issues have placed very significant professional, emotional and financial strain on him and that it has been a very adversarial and fraught process.
In terms of his psychological state the Applicant relies on a report by Dr David Tierney, a clinical and forensic psychologist, dated 10 February 2011.[42]
Dr Tierney's report states that he commenced treating Mr Forster on 4 December 2003. The initial focus of treatment was to assist Mr Forster cope with the pressure of work associated with the Voyager litigation. Dr Tierney then says:

[107]

In my view the psychological evidence is of limited relevance to the matters in issue in these proceedings. It does not seek to establish any causal connection between the Applicant's psychological state and his behaviour, and it is not exculpatory of his lack of candour.
The Applicant also submits that there is no basis for asserting that he is anything but of good character. The Applicant relies on testimonials from the following persons:
- (a) Rodney Burk, a former client, in the Melbourne Voyager cases since 1999;
  - (a) Nelson Pinto of Pinto Law who was employed by the Applicant from 23 July 2007 and 28 November, 2008 at Hollows Lawyers and who assisted him with the Melbourne Voyager litigation;
  - (b) Joseph Cauchi, former Regional Director of Counselling, Family Court of Australia, Director of Mornington Flinders Shire who has known the Applicant for 23 years;
  - (c) Paul Bravender-Coyle of Counsel;
  - (d) Lindy Thewlis, an employee of Infinity Law for 5 years;
  - (e) John Lombardo the Applicant's accountant.
For completeness I note that on a number of occasions the Applicant contended that the Board had breached the guidelines pertaining to model litigants. But the Applicant failed to identify the legal consequences of such breaches (assuming that they be established). For my part I am not persuaded that the Board has breached its obligations as a model litigant in these proceedings. Accordingly, it is unnecessary to deal with this issue further.
I now turn to the relevant 'suitability' matters set out in ss 1.2.6 and 2.4.4 of the Act.
The Board relies on the following 'suitability' matters:
- contravention of a law about trust money or accounts and appointment of a receiver (s 2.4.4(1)(c) and s 1.2.6(k));
- complaint and disciplinary action (ss 1.2.6(1)(j); 1.2.6(f)); 1.2.6(g));
- good fame and character (s 1.2.6(1)(a)); and
- other relevant matters - candour issues (s 2.4.4(1)(f)).
I propose to deal with each of these matters before turning to the additional matters upon which the Board relies.

[109]

Receivers were appointed to the Applicant's law practice by the Supreme Court on 12 April 2010. Her Honour Justice Emerton found that the Applicant had contravened a number of provisions of the Act and Regulations in relation to his handling of trust money. The Board specifically refers to paragraphs [295], [300] and [304] of her Honour's judgment.
In appointing a receiver to the Applicant's practice her Honour made the following findings:
- (i) The law practice had committed 'serious irregularities' in relation to trust money (the double payment of disbursements in particular created significant trust account deficiencies); failed to properly account in a timely manner to clients for trust money received by the practice on their behalf; and contravened the Act and the Regulations, in particular s 3.3.31 of the Act.[44]
- (ii) Although the major problems identified in the Chun Report - the double payment and double billing of disbursements - were most likely inadvertent, they occurred because the law practice did not pay sufficiently close attention to its trust accounting obligations when settlement monies started to flow in from the Commonwealth.[45]
- (iii) While the trust accounting errors were not deliberate or dishonest, they exposed a 'somewhat cavalier' attitude towards the management of trust funds.[46] The errors should have been readily apparent and might have been avoided had the law practice prepared final trust account statements as required by the Regulations.
- (iv) Her Honour did not accept that the major problems identified in the Chun Report were caused by a defect in the accounting software used by the law practice, as submitted by Mr Forster.[47]
- (v) The manner in which the trust account irregularities were rectified by the law practice 'gave rise to concern' and her Honour said that she could not be confident that the trust account deficiencies had been properly identified and restored or that the errors that gave rise to them have been rectified.[48]
In relation to the last point I note that in these proceedings the Board does not contend that the Applicant's rectification measures did not comply with the Regulations. For my part I am prepared to assume, in the Applicant's favour, that the rectification measures he has taken comply with the relevant legislative provisions. I am also prepared to proceed on the basis that the rectification measures have rectified the deficiencies identified in the Chun Report, though I note that this has largely been achieved by the provision of a credit note and then billing clients for fees previously written off by the practice. In the end result the rectification measures taken by the practice did not generally result in payments being made to clients [see paragraph [43] infra]. In such circumstances it is unnecessary for me to pursue that issue further.
There is one further aspect of her Honour's judgment to which I wish to refer. As noted above, her Honour found that the law practice did not pay sufficiently close attention to its trust accounting obligations when settlement monies started to flow in from the Commonwealth. At paragraphs [299]-[303] her Honour deals with Mr Forster's attitude to the identified trust account deficiencies:

[123]

The Applicant has given evidence in these proceedings in relation to the payment made to John Sharpe for work done for Mr Smith. That evidence shows that:
- (a) The applicant has always known that for a firm to pay itself a barrister's full fee from trust but pay the barrister a reduced amount would give rise to a trust deficiency.[53]
- (b) 'As soon as he found out'[54] he instructed his staff to pay back into trust.
- (c) He was unable to identify when he first knew that that had occurred in Mr Smith's file.[55]
- (d) On 27 November 2008 a letter was prepared from Hollows Lawyers to Mr Smith reversing the payment to Mr Sharpe.[56] The payment was reversed by Interim Bill no. 4261 dated 4 December 2008.[57]
- (e) The inspectors from the LIV were on site in early November 2008. The letter from the inspectors setting out the deficiencies they had found was dated 3 February 2009.[58] The Applicant was not able to say if the inspectors had informed him of this deficiency prior to that letter.[59]
- (f) The Applicant sought to attribute this form of deficiency to the operation of Infinity Law,[60] despite her Honour's clear rejection of that contention.
It remains the case, as her Honour previously found, that the Applicant has not advanced any satisfactory explanation for the deficiency which arose from his failure to pass on the discount on counsel's fees.
- (ii) Mr Rann
Her Honour found that the manner in which the law practice rectified the errors in the matter of Rann was illustrative of the way in which the Applicant set about dealing with the inspectors' findings and remedying the irregularities that had been identified.[61]
Mr Rann's matter was completed around May 2007. The law practice received settlement proceeds and party/party costs totalling $287,735.14 on behalf of Mr Rann, comprising settlement proceeds of $162,735.14 that were deposited into the law practice's trust account on 21 May 2007, and party/party costs negotiated on behalf of Mr Rann in the amount of $125,000, that were deposited into the law practice's general office account on that day.[62]
The Chun Report identified the payment of the party/party costs of $125,000 directly into the law practice's office account as being a potential breach of s 3.3.13(1) of the Act (which requires trust money to be paid into the trust account in the absence of a written direction to the contrary).
The law practice paid Mr Rann a settlement sum of $82,188.39.[63]
The law practice's records show that its invoices issued from January 2003 onwards totalled $220,553.17. Payments totalling $217,406.17 were received by the law practice in respect of these invoices. An outstanding balance of $3,147.00 was written off.[64]
However, the Chun Report concluded that rather than there being an outstanding balance of $3,147.00, there appeared to be a potential deficiency in money entrusted to the law practice in the amount of $11,002.70, comprising overpayment of an invoice and deficiencies created by the double payment of disbursements and GST overcharging.[65]
On 18 December 2008, following the inspection, the law practice issued adjustment notes in favour of Mr Rann for the amounts of $1,650.00 and $2,856.00. The latter related to third party disbursements appropriated twice and the GST overcharge.[66]
On 20 April 2009, the law practice deposited two office cheques totalling $12,653.10 into Mr Rann's trust account, purportedly in respect of the invoice overpayment and for third party disbursements and GST appropriated twice.[67]
Her Honour deals with the events which followed at paragraphs [213] - [221].[68] Mr Scott sent Mr Rann an email which, among other things, said:[69]

[213]

Mr Forster: And what I said to him, No, Vic, you can't expect that, or words to that effect. I said to him: You will get - you'll have to wait because the case has been. going on a long time, there'll be two cheques; you'll get a cheque for - there'll be a cheque - a cheque that would be $125,000 which would be the party/party costs amount, and that would go straight - straight to me to pay the barristers, the disbursements and everything, and then - and then the remainder - the remainder would go to him, being the amount that he wanted. But I also said to him at the time - because I reduced my fees down to make sure that he'd get the $80,000 that he wanted - I said to him: Look, Vic, I think we'll just - we'll settle it. The final settlement - they won't do it today, but the final settlement will be settled. And it got settled the following day. So I was very clear in terms of - in terms of making sure Mr Rann understood. And the particular reason, I suppose, that Mr Rann - why it sticks in my memory, is that Mr Rann was one of very few clients that was so financially astute. Most of them would - most of them were at the stage that they would just - they'd walk out of the room without anything. But Vic's an astute businessman, and he wanted to know exactly, you know, what the lie of the land is. And so therefore I had to say to him, Vic, or words to the effect - Well, Vic, you're not going to get your - you're not going to get the payment straightaway and you have to wait. And then I told him what you'd get, and I said, Look, why don't we come back - or come back tomorrow, or whatever, and expect a further payment. And that's exactly what happened. Then we signed him up. And in terms of the process, Mr Rann was unlike most of the clients in the sense that he was very - he had a lot of commercial acumen. I mean he was running quite a complex business, a mobile stone business, and I think he was mainly doing the paperwork and the office administration work. So he - so he understood it, and had a pretty clear understanding. And he never said to me - he never said to me things like, Mr Forster, you know, you ripped - words like I've ripped you off, or anything like that. So at the end of the day he was - he was relieved to have it finished, understandably. Gone on for - it had gone on for a long time, and the reason I sent the email is that I wanted him to confirm exactly what occurred, and that's exactly what did occur in our discussion. I am not sure if there's something there that's worrying Your Honour, or if I need to clarify something in terms of that?

[237]

This response raises a number of questions and casts doubt on the Applicant's assertion that at the settlement conference he had received verbal instructions from Mr Rann directing him to pay the $125,000 into his office account. If such an instruction had been given why didn't the Applicant tell the inspectors about it in his letter of 5 March 2009? Instead of proffering such an explanation, the Applicant told the inspectors that it was an operator error and that the payment should have been deposited in the trust account.
I note that in his evidence before Justice Emerton, Mr Forster said that the apology set out in his correspondence to the LIV inspectors was misconceived and he withdrew it.[100] I am not persuaded that his subsequent attempt to withdraw the apology, when confronted with its consequences, makes any material difference.
It is also relevant that in cross-examination the Applicant accepted that there was no need for him to seek any verbal authorisation from Mr Rann at the settlement conference because he already held a signed authority.[101]
What then is the import of the evidence in relation to this issue?
There is no dispute that the Applicant sent an email to Mr Rann on 24 September 2009, shortly before the trial of the Board's application to appoint a receiver to his practice, asking that he send him a 'fresh email' stating that "At my settlement conference I can recall Mr Forster explained to me that there would be two cheques received for settlement and that the smaller of the 2 cheques would be costs and I directed him to put this cheque into his office account directly against my outstanding accounts."
Despite being informed on numerous occasions of the importance of this event,[102] the Applicant has failed to give evidence, in terms, that a conversation took place in which Mr Rann directed him to put the cheque referable to costs directly into the law practices office account to be directly offset against Mr Rann's outstanding accounts .
In his affidavit to the Supreme Court,[103] all that the Applicant said in response to Mr Rann's evidence that such a conversation did not occur was to say:

[239]

The Applicant's evidence to the Tribunal that his affidavit was not responsive[104] to Mr Rann's contention that no such conversation took place, is not credible. Paragraphs 49 to 53 of his affidavit appear under the heading "Affidavit of Mr Rann sworn 14 October 2009" and it is only the critical paragraphs of Mr Rann's affidavit (LSB 26, [10]-[11]) which mentions anything about the "settlement conference".
The Applicant's counsel in the Supreme Court hearing did not cross examine Mr Rann to suggest that such a conversation took place.[105] That is not surprising given that the Applicant's affidavit did not provide a factual foundation to put such a conversation to Mr Rann.
Similarly in this proceeding, despite numerous opportunities to do so, the Applicant's evidence does not provide a reasonable basis for his email request to Mr Rann.
The 'detailed file note' said to corroborate the proposition Mr Rann had given a verbal instruction that the $125,000 would be paid to the Hollows office account, provides no such support. The handwritten notes of the Hollows' solicitor present at the settlement conference make no mention of any oral direction by Mr Rann that the sum in respect of party/party costs was to be paid into the Hollows' office account.
And, finally, the Applicant's letter to the LIV Inspectors of 5 March 2009 casts doubt on his assertion that he had received the verbal instructions to which he refers in his email to Mr Rann; as does the fact that there was no need for such a verbal authorisation as the Applicant already held a signed authority.
The Board contends that the evidence supports a finding that on 24 September 2009 the Applicant sent an email to his former client Mr Rann requesting that Mr Rann send him a statement which involved the Applicant asking Mr Rann to say something that was not true. In other words that the Applicant attempted to get a client, Mr Rann, to confirm instructions that were not in fact given.
On the more limited material before the Court in the receivership proceedings her Honour Justice Emerton found at [304] "... his treatment of Mr Rann displayed disregard for his obligation to give a proper accounting and, more generally, to the interests of Mr Rann as his client".
On the evidence before me I would go further and find that by the email of 24 September 2009 the Applicant had deliberately attempted to get a client, Mr Rann, to confirm instructions that were not given - in other words to participate in a lie - in an effort to shore up his defence in the receivership proceeding. In doing so the Applicant behaved dishonestly and put his interests ahead of those of his client.

[309]

The Board contends that the Applicant has failed to explain the apparent inconsistency between his evidence and submissions, and Ms Thewlis's evidence.
Contrary to the Board's submission I am not persuaded that there is any inconsistency between the Applicant's evidence and submissions and Ms Thewlis' evidence.
Implicit in the Board's submission is the proposition that the Applicant lied in his affidavit of 11 November 2009, and in his written submission of 16 August 2011. I am not persuaded that there is a sufficient evidentiary basis to support such a finding. Ms Thewlis was unable to recall if she received a message from the Applicant in the week before 7 November 2009. Further, at that time Ms Thewlis' message bank provider did not have a function whereby the phone flashed if you had a message and sometimes it could be a few days before she checked her messages. In addition, it may be inferred from Ms Thewlis' evidence that she was not motivated to regularly check her messages at that time lest she be required to attend court and have to cancel her holiday.
- (iii) Sale of the Practice's premises
The Board submits that the Applicant did not disclose to the Court or the receivers that his law practice was effectively being wound up at the same time as he was strenuously opposing the appointment of the receivers and arguing that the practice was a going concern.
A detailed chronology of the events surrounding the Applicant's sale of the premises located in Frankston (from which he had been conducting his legal practice) is set out in Exhibit LSB 62.
On 31 March 2010, Justice Emerton handed down Reasons for Decision in the Receivership Application proceeding.[141] Those Reasons stated that a Receiver would be appointed to the Applicant's law practice. The Applicant appeared in person before her Honour to receive the Reasons.[142] As a result, from 31 March 2011, he was aware that a Receiver would be appointed to his law practice.[143]
On 9 April 2010, the Applicant entered into a contract for the sale of the premises located in Frankston from which he had been conducting his legal practice.[144]
On 12 April 2010 the Applicant's counsel (in the presence of the Applicant instructing in the court room) made submissions directed at the appointment of a local Frankston solicitor as receiver. Towards the end of those submissions Mr Arthur advanced the following submission:

[312]

At 7pm on 12 April 2010, the Applicant sent an email,[146] to one of his clients, in which he stated that: "I confirm that I am closing my practice".[147]
On 13 April 2010, when the Receivers took possession of the law practice's office in Frankston, they found letters and emails to clients transferring files to Hill Legal, another Mornington Peninsula law practice, a checklist of things to do, which referred to the closure of all files, the preparation of disconnection letters for all services, the preparation of data "for accountant for ceasing business operation" and a letter prepared in February 2010 terminating the employment of the Applicant's practice manager (Peter Scott) on the basis that it was not viable to employ a practice manager.[148]
The Applicant's denial or attempt to cavil with the truth of the matters identified in the paragraph above were unconvincing and the evidence he gave in cross-examination on these matters was rambling and evasive.[149]
On 30 April 2010, without disclosing to the Court that he had sold the law practice's office in Frankston and without disclosing to the Court that in the future he was proposing to practise from his home in Flinders for the next six months, the Applicant applied to Justice Emerton for a stay of the receivership on the express basis that the receivership was causing "mortal damage to the practice.[150] That application was refused by her Honour.
On 1 May 2010, the Applicant wrote to Mrs Marks (the widow of one of his Voyager clients) and Mr Rann (one of his Voyager clients) stating that he had established Whistleblowers Lawyers and was going to engage in legal practice from his home in Flinders.[151] The Applicant did not disclose to Justice Emerton on 30 April 2010, when he was seeking a stay from her Honour of the receivership, that he was proposing to practise from his home for the next six months.[152]
At about the same time as he was making the stay application to her Honour, the Applicant was closing down (or at the very least, significantly winding-back) his practice. That information was relevant to her Honour's determination of the Applicant's stay application and the Applicant's claim of mortal damage to his practice.
The Applicant submitted that he did not disclose the sale as he considered it to be irrelevant. The premises in question were his private property as opposed to regulated property. However in her Honour's ruling on 21 May 2010 in respect to the freezing order sought by the Receivers and the Board in relation to the proceeds of the sale of the Frankston premises, Justice Emerton found:

[345]

I note that Justice Emerton found that the Applicant's letter dated 3 February 2011[171] was threatening,[172] a finding with which I concur.
The Applicant sought to mitigate his behaviour by submitting that after her Honour had risen from the bench at the conclusion of the hearing on 21 May 2010 Mrs Forster heard Dr Hanscombe say to two young female representatives of the Board 'was I nasty enough'.
I am not persuaded that Dr Hanscombe said the words that are attributed to her.
Mrs Forster's evidence was inconsistent with evidence of a number of other witnesses. She claimed that Mr Arthur of counsel was present in the courtroom at the time the words were alleged to have been said Dr Hanscombe[173] but Mr Arthur was not present in the courtroom at any time that day, and the Applicant appeared in person that day before her Honour.[174]
Mrs Forster said that Dr Hanscombe said the alleged words to two women. Mr Muir, Ms Rivalland and Mr Davidson all gave evidence that there was only one woman sitting or standing there at the time - Ms Rivalland - and that Mr Davidson was sitting or standing next to Ms Rivalland.[175] Ms Castos, who was usually present in Court in the Supreme Court proceeding, gave evidence that she was in Sydney that day, and her evidence was not challenged.[176]
Ms Rivalland and Mr Davidson all rejected the proposition that Dr Hanscombe said the words attributed to her by Mrs Forster.
In her statement Mrs Forster said[177] that she was sitting in the same row of seats as the two young women who were from the Respondent. However, in her oral evidence she claimed that she was sitting behind the women.[178]
Finally, Mrs Forster had virtually no recollections of what matters were being considered by Justice Emerton that day, or what determinations her Honour made that day or even whether her husband gave oral evidence that day.[179]
I draw no adverse inference from the fact that Dr Hanscombe did not give evidence. She was obliged not to give evidence if she retained her brief because of the terms of Rule 99 of the Victorian Bar's Rules of Conduct dated 22 September 2009.[180]
Given what occurred in Court on 21 May 2010 and the fact that Dr Hanscombe did not cross-examine the Applicant that day, it is inherently implausible that she would have said the words alleged.
In the circumstances, and given the evidence of Ms Rivalland and Mr Davidson, I find that Dr Hanscombe did not at any time say the words attributed to her by Mrs Forster in the courtroom on 21 May 2010 or any other day.
The Applicant does not deny that he repeatedly called the Respondent's senior counsel a "monster" on 18 November 2010 in the period immediately after Justice Emerton rose from the Bench at the conclusion of the day's hearing.
The only point disputed by the Applicant is that he says he did not say it within inches of her face, but was four or five feet away when he said it. I note that the Applicant has never challenged Mr Muir on his affidavit of 15 February 2011 in which Mr Muir deposes that the Applicant called Dr Hanscombe a monster within inches of her face. That is so despite Mr Muir's affidavit being relied upon before her Honour on 17 February 2011 and also in these proceedings. I prefer the evidence of Mr Muir on this point.
The Applicant now claims that he is sorry for his actions, but he has never apologised to Dr Hanscombe.[181]
In the context of dealing with the Applicant's behaviour towards Dr Hanscombe, Justice Emerton also made the following comment:

[393]

In seeking to explain some of his behaviour - particularly his antagonism towards Mr Mann - the Applicant again displayed a reckless disregard towards his duty of candour to the Tribunal.
In his witness statement dated 31 August 2011,[188] the Applicant said "I have found it very difficult coping with a situation particularly when as soon as the appointment of the Receiver was made Mr Mann gave the thumbs up signal to Ms Rivalland which was acknowledged and immediately thereafter the thumbs down to me." In his evidence Mr Forster said that he had 'a very strong recollection' of this taking place.[189]
The receivers were appointed by Justice Emerton on 12 April 2010.
In her affidavit sworn 6 September 2011,[190] Ms Rivalland denied that she had observed on 12 April 2010 or at any other time Mr Mann give her the "thumbs up" signal or Mr Forster the "thumbs down" signal. The Applicant cross-examined Ms Rivalland. The Applicant's questions of Ms Rivalland were premised on the alleged incident having taken place in Court on 12 April 2010.[191]
The Applicant cross-examined Mr Muir in relation to the alleged incident. The Applicant's questions of Mr Muir were also premised on the incident having taken place in Court on 12 April 2010.[192] Mr Muir's evidence was that he could see Mr Mann and Ms Rivalland in Court[193] and that he did not observe Mr Mann give the thumbs up signal to Ms Rivalland or anyone else.[194]
In cross-examination, the Applicant confirmed that the alleged events took place after the orders were made appointing the receivers on 12 April 2010.[195] When it was put to him that it was impossible that he had observed such events because he had left Court before orders were made on 12 April 2010 he initially sought to suggest that Mr Arthur told him that Mr Arthur had seen Mr Mann give the "thumbs up" signal.[196] He then sought to suggest that he may have been confused with the date when judgment was handed down on 31 March 2010.[197] When it was pointed out to the Applicant that Mr Arthur was not present in Court on 31 March 2010 his evidence became entirely unclear[198] and he subsequently made no attempt in re-examination to explain the inconsistency in his evidence.
Mr Arthur, the Applicant's counsel in the Supreme Court proceedings, also gave evidence in relation to this matter:[199]

[445]

The Applicant's conduct towards Dr Hanscombe, Mr Batrouney and Mr Mann was reprehensible and amounts to conduct which falls short of the professional standards expected of a legal practitioner.
- (ii) The Applicant's conduct in court and towards Emerton J
The Board relies on the Applicant's conduct in the Supreme Court proceedings on 17 February 2011 which led to him being ordered from the precincts of the Court for the remainder of the day.
The relevant extracts from the transcript of the Supreme Court proceedings on 17 February 2011 are set out at Tab 51 in Folder 4 of the Board's Documents. I need not set out that material here.
On 17 February 2011 the Applicant's conduct and his letter of 3 February 2011 led to Justice Emerton ordering, on 17 February 2011, that the Applicant not contact, communicate with or otherwise approach any counsel retained by the Board.[203]
The Applicant claims that he has apologised to Justice Emerton for all his behaviour in Court. However, he has never apologised to her Honour for his repeated behaviour on 17 February 2011 which resulted in her Honour making an order precluding him from the precincts of the Court for the rest of that day.
While the Applicant's behaviour before her Honour was patently inappropriate I am not persuaded that it goes to his fitness to practise. Such behaviour is more appropriately sanctioned at the relevant time - as her Honour did. It is a matter for the judicial officer concerned to judge the seriousness of such conduct and impose an appropriate sanction. I note that her Honour did not regard the matter as so serious as to warrant a finding of contempt.
- (iii) Contents of the Applicant's affidavits
The Board contends that parts of the Applicant's affidavits of 21 May 2010, 11 February 2011, 16 February 2011, 17 February 2011, 20 May 2011 and 3 June 2011, are scandalous.
I accept that parts of the Applicant's affidavits may properly be characterised as scandalous but I am not persuaded that it is an issue which goes to the Applicant's fitness to practise. Such matters arise from time to time in litigation and they are best dealt with in that context, through the imposition of costs and other sanctions.
- (iv) Costs of rendering an itemised account
The Board contends that the Applicant sought the cost of rendering an itemised account for three of his clients in circumstances where he knew or should have known that he was prohibited by the Act from seeking such a cost.
The submission put by the Board is that the Applicant was going to charge clients for the preparation of an itemised account, in breach of the Act. This contention is put on the basis of correspondence sent by the Applicant to Messrs Larkin, Thompson and Woodward.[204]
I am not persuaded that the Board's contention is made out. None of the letters to which the Board refers says, in terms, that the Applicant would charge for the preparation of an itemised account. For example the letter to Mr Woodward is in the following terms:

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Forster v Legal Services Board (Legal Practice) [2011] VCAT 2216 (8 December 2011)