plaintiff. Tribunal found two instances of unsatisfactory professional conduct and one instance of professional misconduct; ordered respondent to provide the complete original file in matter J18/2009 by 4pm...
Key principles
Failure to comply with a Commissioner's request for a full written explanation under s 4.4.11 of the Legal Profession Act is conduct capable of constituting either unsatisfactory...
Mitigating explanations such as secretarial/computer problems and ambiguous communications from the Commissioner's officer may justify treating delay as unsatisfactory...
A practitioner's repeated failure to provide an original client file when required by the Commissioner, and an absence of an adequate explanation after an extended period, can...
In determining penalty, the Tribunal will consider the nature of the misconduct, prior disciplinary findings, admissions by the practitioner, and the strength of mitigating...
Issues before the court
Whether failure to provide a full written explanation to the Legal Services Commissioner within the time required constitutes professional...
Plain English Summary
The Commissioner accused Ms Blazevic of failing to timely provide written explanations and a client's file. The Tribunal accepted some mitigation (computer/secretarial issues, ambiguous comments) and found two delays were unsatisfactory professional conduct, imposing two $500 fines. The practitioner's continued failure to produce a voluminous client file and inadequate explanations led to a finding of professional misconduct, a $1,500 fine, an order to deliver the file by a set date, and an order to pay the Commissioner's costs of $2,509.70.
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Deep Dive
1,897 words · generated 04/07/2026
What happened
The Legal Services Commissioner brought three disciplinary proceedings against Ms Maria Blazevic in the Victorian Civil and Administrative Tribunal (Legal Practice List). The three matters were J11/2009, J13/2009 and J18/2009. They arose from separate complaints:
Whether failure to provide the Commissioner's requested original file (including all documents, letters, file notes and papers) within the time...
Appropriate penalty for unsatisfactory professional conduct and professional misconduct in these circumstances.
Cited legislation
No linked legislation citations have been extracted yet.
J11/2009: a complaint dated 26 June 2008 by Mr Paul Cahill on behalf of Mr Ivan Sesar concerning difficulties transferring Mr Sesar's file (Charge 1) (see Reasons [Charge 1 ¶1–6]).
J13/2009: a complaint dated 7 July / 7 August 2008 by Gwynne Thompson on behalf of Spark & Cannon Australasia regarding alleged failure to apply trust money in payment of an outstanding debt (Charge 2) (see Reasons [Charge 2 ¶1–5]).
J18/2009: a complaint dated 1 February 2008 by Mr Darko Horvat concerning handling of his WorkCover claim, including requests for the practitioner's complete original file (Charge 3) (see Reasons [Charge 3 ¶1–6]).
For Charges 1 and 2 the Commissioner issued requests under s 4.4.11 of the Legal Profession Act 2004 requiring full written explanations within 16 days (Charges 1: letters 29 July, 27 Aug, 30 Sept 2008; Charge 2: letters 20 Aug, 3 Oct 2008). Ms Blazevic did not provide the explanations within the prescribed time. She later provided written material on or around 21–24 November 2008 (see Charge 1 ¶4–11; Charge 2 ¶4–7).
For Charge 3 the Commissioner, after accepting a written explanation in November 2008, requested production of the complete original file under s 4.4.11(1)(b) by 16 days (letter 21 Nov 2008). The practitioner did not provide the original file within the time and, as at 6 February 2009 (when the Commissioner applied for Tribunal orders), the file had not been produced despite time to do so (see Charge 3 ¶3–15).
At the hearing before His Honour Judge I J K Ross (23 February 2009) the Tribunal found:
Charges 1 and 2: unsatisfactory professional conduct (two instances) rather than professional misconduct (Findings ¶1–11).
Charge 3: professional misconduct (Findings ¶12–15).
Orders made 25 February 2009 included an order to produce the file (by 16 March 2009), a fine of $2,500 payable to the Legal Services Board (comprised of $500 for each unsatisfactory conduct count and $1,500 for the professional misconduct), and payment of the Commissioner's costs of $2,509.70 (Orders 3–5; Reasons Findings ¶11, ¶16 & costs ¶4–5).
Why the court decided this way
Central legal framework and test
The Tribunal applied the statutory obligations in s 4.4.11 of the Legal Profession Act 2004, which empower the Commissioner to require a practitioner to provide a full written explanation and, where appropriate, the practitioner's complete original file. Non-compliance with those requests is conduct capable of constituting unsatisfactory professional conduct or professional misconduct, the distinction being a matter of degree (Findings ¶2–3).
Application to Charges 1 and 2 (written explanations)
The Tribunal accepted the facts were undisputed: the practitioner did not comply with the Commissioner’s timeframes (Findings ¶2). However, the Tribunal also identified and accepted mitigating factors. The practitioner encountered secretarial and computer problems: an initial draft was not saved, dictation tape was erased, an assistant working from home had formatting and saving difficulties; she believed her assistant had mailed the responses (Findings ¶4–8). Moreover, a telephone conversation with the Commissioner's solicitor produced an ambiguous comment that the practitioner read as permission to prioritise other matters (Findings ¶5).
Given those circumstances and the fact that the practitioner provided full written explanations shortly after the Commissioner moved to institute proceedings, the Tribunal concluded that, on balance, the misconduct fell within unsatisfactory professional conduct rather than professional misconduct (Findings ¶7–8). The Tribunal emphasised the degree test: similar conduct could, in different circumstances, amount to professional misconduct, but here the mitigating factors and prompt eventual responses warranted a lesser finding (Findings ¶3, ¶8).
Application to Charge 3 (failure to produce original file)
By contrast, the Tribunal found the practitioner's conduct surrounding the non-production of the WorkCover file to be different in degree (Findings ¶12–15). The file was voluminous and photocopying had been outsourced, but the Tribunal did not accept the outsourcing delay and difficulty in contacting the photocopier as a reasonable explanation for failing to supply the file after some three months. The practitioner had not produced the material within the time specified and had not done so by the date the Commissioner applied to the Tribunal (Findings ¶14–15).
The Tribunal was not persuaded that these operational difficulties justified continued non-compliance and therefore found professional misconduct (Findings ¶15).
Penalty reasoning
For the two unsatisfactory conduct findings the Tribunal imposed fines of $500 each, describing the conduct as at the higher end of unsatisfactory professional conduct (Findings ¶10–11).
For the professional misconduct finding the Tribunal considered cancellation of the practising certificate, noting the approach in Legal Services Commissioner v Morgan [2008] VCAT 841, but concluded cancellation was not warranted and instead imposed a $1,500 fine (Penalty discussion ¶1–3).
Costs were ordered in the ordinary course because the Tribunal must order costs where a practitioner is found guilty unless exceptional circumstances exist; none were found (Findings ¶4–5).
Before and after state of the law
Before
The statutory framework already required practitioners to respond to Commissioner's requests under s 4.4.11 and established the categories of unsatisfactory professional conduct and professional misconduct under the Act. The VCAT's prior decisions (including Member Butcher in Legal Services Commissioner v Morgan) provided examples of sanctions, including practising certificate cancellation, when misconduct justified it.
After
The decision in Legal Services Commissioner v Blazevic does not alter statutory law but provides an application of the degree test distinguishing unsatisfactory professional conduct from professional misconduct in the context of non-compliance with Commissioner's requests. It reinforces that operational explanations (computer failures, secretarial errors, misdirected mail) may in some cases be sufficient mitigation to avoid a finding of misconduct, but repeated non-production of an original client file without adequate explanation will likely attract a finding of professional misconduct. The decision also illustrates sentencing choices: fines can substitute for suspension/cancellation where the Tribunal concludes cancellation is not proportionate.
Key passages with plain-English translation
"Whether the conduct of a practitioner amounts to misconduct or unsatisfactory conduct will usually be a matter of degree." (Findings ¶3)
Plain English: There is a spectrum of bad behaviour; the Tribunal decides where a practitioner's behaviour sits along that spectrum given the facts.
"While these matters do not excuse the practitioner's conduct they are relevant and I have taken them into account." (Findings ¶4)
Plain English: The Tribunal accepts the mistakes happened, and they reduce blame, but they do not completely justify the failure to respond.
"In all the circumstances I am satisfied that these matters warrant findings of unsatisfactory professional conduct rather than professional misconduct." (Findings ¶8)
Plain English: Given everything the Tribunal found about the delays and problems, the two late explanations are serious but not so serious as to be classified as misconduct.
"I am not persuaded that the matters relied upon by the practitioner constitute a reasonable explanation for her conduct. I find the practitioner guilty of professional misconduct." (Findings ¶15)
Plain English: The Tribunal rejected the practitioner's excuses for not producing the file and concluded that the failure crossed the line into professional misconduct.
"I am not satisfied that there are any exceptional circumstances in this case and I propose to make an order for the payment of costs in the sum sought by the Commissioner." (Findings ¶5)
Plain English: Because the practitioner was found guilty, and there is no special reason not to, she must pay the Commissioner's legal costs.
What fact patterns trigger this precedent
This decision is particularly relevant where a practitioner:
Receives statutory requests from the Legal Services Commissioner under s 4.4.11 for written explanations about complaints or for the practitioner's original file, and either delays or fails to comply.
Offers operational explanations for delay (computer failure, lost drafts, assistant working remotely, outsourced photocopying) and seeks to rely on those as mitigation.
Eventually supplies explanations only after the Commissioner moves to formal action.
Fails, despite considerable time, to supply an original client file, or produces it only after tribunal orders or not at all.
Key triggers for a likely finding of unsatisfactory conduct rather than misconduct:
A delay caused by identifiable operational problems that are credible and temporary;
Prompt supply of full written explanations once the practitioner is alerted to urgent attention or proceedings.
Key triggers for a likely finding of professional misconduct:
Repeated or prolonged failure to comply with a request for original files without a satisfactory explanation;
Continued non-production after significant time has elapsed and after the Commissioner has issued formal notices.
How later courts have treated it
The decision cites Member Butcher’s approach in Legal Services Commissioner v Morgan [2008] VCAT 841 as a comparable example where cancellation of practising certificate was ordered or considered (Reasons Penalty discussion). The Tribunal in Blazevic expressly considered Morgan but declined to follow it as a direct outcome, preferring fines over cancellation given the facts (Penalty discussion ¶1–3). Practitioners and tribunals will likely treat Blazevic as an example applying the degree test in disciplinary contexts: operational excuses can be mitigating; persistent failure to produce original files will be treated severely. This decision is likely to be cited in later disciplinary matters as a case where production failures justified a misconduct finding and a substantial fine, but not cancellation, reflecting proportionality in penalties.
Still-open questions
Borderline cases of operational failures: Blazevic accepts some operational difficulties as mitigation. The decision does not specify thresholds for when secretarial/computer issues cease to be reasonable explanations. Future cases will need to delineate how prolonged or severe such operational issues must be to justify delay.
Quantifying proportionality of penalties: The Tribunal opted for fines ($500 ×2 and $1,500) rather than suspension or cancellation. The judgment does not supply a detailed scale for fines relative to misconduct severity. Subsequent cases will clarify when cancellation rather than fine is required, especially for repeat offenders or more serious substantive breaches.
Production of voluminous files: The decision accepts that a voluminous file may be difficult to copy but rejected outsourcing delays as inadequate here. It remains open what procedural steps a practitioner should take when files are large (for example, giving interim access, producing a schedule of documents, or seeking an agreed extension) to avoid misconduct findings.
Ambiguity in Commissioner's oral comments: The Tribunal gave the practitioner the benefit of the doubt regarding an ambiguous comment from a Commissioner's solicitor. The decision does not define how explicit an extension must be to relieve a practitioner's statutory obligations. Future disputes may require clearer rules on whether colloquial or non-written communications can extend statutory timeframes.
Interaction with client confidentiality and original file production: The judgment does not explore in detail potential privacy/confidentiality or client consent issues that might complicate immediate production of original client files to the Commissioner. Future cases could test how such competing duties affect s 4.4.11 compliance.
In short, Legal Services Commissioner v Blazevic is a useful guide on applying the degree test between unsatisfactory professional conduct and professional misconduct where practitioners delay in responding to Commissioner's requests. It endorses mitigation for credible operational issues but draws a firm line against prolonged non-production of original client files without reasonable explanation.
Judgment (35 paragraphs)
[1]
Legal Services Commissioner v Blazevic (Legal Practice) [2009] VCAT 143 (25 February 2009)
[2]
Legal Profession Act2004 - Failure to provide written explanation in a timely manner - failure to provide file - findings of unsatisfactory professional conduct and professional misconduct - fines - costs.
[3]
Legal Services Commissioner v Blazevic (Legal Practice) [2009] VCAT 143
[4]
The Tribunal finds the Respondent guilty of two instances of unsatisfactory professional conduct as defined by s 4.4.2 of the Legal Profession Act2004.
The Tribunal finds the Respondent guilty of one instance of professional misconduct as defined by s 4.4.3 of the Legal Profession Act2004.
The Respondent is to respond to the requests of the Legal Services Commissioner for her complete original file (including all documents, letters, file notes and papers) in relation to the complaint by Mr Darko Horvat (J18/2009), by no later than 4pm on Monday 16 March 2009.
The Respondent is to pay a fine of $2500 to the Legal Services Board, by no later than 4pm on Wednesday 25 March 2009.
The Respondent is to pay the Legal Services Commissioner's costs of $2509.70, by no later than 4pm on Wednesday 25 March 2009.
[5]
Ms Maria Blazevic has practised as a legal practitioner since 1 June 1987. The Legal Services Commissioner (the Commissioner) has brought three charges of professional misconduct against Ms Blazevic. Before turning to those charges it is relevant to note that on 20 November 2008 the Tribunal found Ms Blazevic guilty of two instances of unsatisfactory professional conduct and reprimanded the practitioner (the earlier proceedings).
The charges in the earlier proceedings related to the practitioner's failure to comply with requests by the Commissioner for a full written explanation of her conduct regarding disciplinary complaints made by Mr Darko Horvat (J205/2008) and Ms Anna Viti (J203/2008). The relevant facts on that occasion were not contested but Ms Blazevic did point to the following matters in mitigation:
[6]
(i) The practitioner had moved her office in late 2007/early 2008. She had made arrangements for mail sent to her serviced office to be redirected to her residential address. The mail was misdirected and she only became aware of this in June 2008.
[7]
(ii) The practitioner was unable to respond to the Commissioner's correspondence for a six week period from the end of June until mid August, due to illness.
[8]
(iii) On or about 1 September 2008 the practitioner contacted the Commissioner's office advising that she had been having difficulties in finalising the responses due to the draft being 'lost' on her computer.
[9]
(iv) The practitioner had thought that her assistant mailed the responses to the Commissioner on 26 September 2008, but it appears that she did not do so.
[10]
The Tribunal accepted that the circumstances warranted findings of unsatisfactory conduct rather than professional misconduct. At paragraph 39 of its decision the Tribunal said:
[11]
"Whether the conduct of a practitioner amounts to misconduct or unsatisfactory conduct will usually be a matter of degree. In this case the practitioner first became aware of the Commissioner's requests for written explanations on receipt of the letters of 11 August 2008. She encountered problems with her computer and the responses had to be redrafted. The practitioner then completed the responses and believed that her assistant had mailed them to the Commissioner on 26 September 2008, but it appears that she did not do so. While these matters do not excuse the practitioner's conduct they are relevant and I have taken them into account."
[12]
I now turn to the charges presently before the Tribunal.
Matter J11/2009 ('Charge 1') arises from a complaint dated 26 June 2008 made to the Commissioner by Mr Paul Cahill of the firm of Cahill & Rowe on behalf of Mr Ivan Sesar. The complaint concerns alleged difficulties in having Mr Sesar's file in a complex property matter transferred from Ms Blazevic to his new solicitors.
Matter J13/2009 ('Charge 2') arises from a complaint to the Commissioner dated 7 July 2008 by Sydney-based solicitors Gwynne Thompson on behalf of their client Spark & Cannon Australasia. The complaint concerns an alleged failure by Ms Blazevic to apply trust money in payment of outstanding debt.
Matter J18/2009 ('Charge 3') relates to a complaint made to the Commissioner by Mr Darko Horvat dated 1 February 2008 concerning the handling of his WorkCover claim.
I will deal with each charge in turn.
[13]
The first charge is of professional misconduct within the meaning of s 4.4.4(a) of the Legal Profession Act2004 (the Act) and alleges that Ms Blazevic failed to comply, within the required time, with the request of the Commissioner for a full written explanation of her conduct regarding the disciplinary complaint made on behalf of Mr Sesar.
Following her receipt of the letter of complaint on behalf of Mr Sesar on 27 June 2008 the Commissioner by letter dated 3 July 2008 notified Ms Blazevic of the nature of the complaint and afforded her the opportunity to make submissions on whether the complaint should be treated as a disciplinary complaint and whether or not the complaint should be summarily dismissed pursuant to s 4.2.10 of the Act.
No submissions were received from Ms Blazevic. The Commissioner determined that the complaint was a disciplinary complaint and that there were no grounds to dismiss it.
By letter dated 29 July 2008 the Commissioner advised Ms Blazevic that she required her, pursuant to s 4.4.11(1)(a) of the Act, to provide her with a full written explanation of her conduct with regard to the subject matter of the complaint, within 16 days.
By letter dated 27 August 2008 the Commissioner advised Ms Blazevic among other things that:
(a) her response to the Commissioner's request by the letter of 29 July had not been received; and
(b) that she required Ms Blazevic to give this matter her immediate attention and provide her with a written explanation in relation to the subject matter of the complaint, within 16 days.
In a letter received 1 September 2008 Ms Blazevic advised the Commissioner that her responses in a number of matters including this one had been delayed, as they were to be faxed to the Commissioner's office on 29 August 2008. Ms Blazevic also advised that a computer malfunction was being rectified and that her responses would be faxed through as soon as possible.
[14]
(a) her response to the Commissioner's requests by letters dated 29 July and 27 August 2008 had not been received; and
[15]
(b) her failure to provide the Commissioner with a full written explanation of her conduct may constitute a breach of the provisions of the Act and may thereby amount to professional misconduct in accordance with s 4.4.4(a) of the Act; and
[16]
(c) she required Ms Blazevic to give this matter her urgent attention and provide her with a written explanation of her conduct within 16 days.
[17]
This letter was received by Ms Blazevic on 3 October 2008.
[18]
On 19 November 2008 the Commissioner had a letter dated that same day hand delivered to Ms Blazevic personally at the Tribunal. That letter advised Ms Blazevic that, amongst other things:
[19]
(a) her response to the Commissioner's requests by the letters dated 29 July, 27 August and 30 September 2008 had not been received; and
[20]
(b) the Commissioner was satisfied there was a reasonable likelihood that the Tribunal would find her guilty of professional misconduct within the meaning of s 4.4.4(a) of the Act in respect of her failure to comply with her request made pursuant to s 4.4.11(1)(a) of the Act.
[21]
As at the date of the letter of 19 November 2008 communicating the Commissioner's decision, Ms Blazevic had:
failed to provide her with a full written explanation of her conduct within the required time; and
failed to respond to her letters of 29 July, 27 August and 30 September 2008.
On 21 November 2008, by facsimile letter dated 26 September 2008, Ms Blazevic provided the Commissioner with a full written explanation of her conduct.
[22]
The second charge is also of professional misconduct and arises from Ms Blazevic's alleged failure to comply, within the required time, with the request of the Commissioner for a full written explanation of her conduct regarding the disciplinary complaint made on behalf of Spark and Cannon.
The Commissioner notified Ms Blazevic of the nature of the complaint by letter dated 7 August 2008 and afforded her the opportunity to make submissions on whether the complaint should be treated as a disciplinary complaint and whether or not it should be summarily dismissed pursuant to s 4.2.10 of the Act.
After receiving no submissions from Ms Blazevic in the required time frame the Commissioner determined that the complaint was a disciplinary complaint and that there were no grounds to dismiss it under s 4.2.10 of the Act.
By letter dated 20 August 2008 the Commissioner advised Ms Blazevic that she required her, pursuant to s 4.4.11(1)(a) of the Act, to provide a full written explanation of her conduct with regard to the subject matter of the complaint, within 16 days.
By registered letter dated 3 October 2008 the Commissioner (among other things) advised Ms Blazevic that:
[23]
(a) her response to the Commissioner's request of 20 August 2008 had not been received;
[24]
(b) her failure to provide the Commissioner with a full written explanation of her conduct may constitute a breach of the provisions of the Act and may thereby amount to professional misconduct in accordance with s 4.4.4(a) of the Act; and
[25]
(c) the Commissioner required her to give this matter her urgent attention and provide her with a written explanation of her conduct within 16 days.
[26]
This letter was received by Ms Blazevic on 6 October 2008. On 19 November 2008 the Commissioner had a letter dated the same day hand delivered to Ms Blazevic personally on that day at the Tribunal. That letter advised Ms Blazevic that, among other things:
(a) her response to the Commissioner's requests by the letters dated 20 August and 3 October 2008 had not been received; and
(b) the Commissioner was satisfied that there was a reasonable likelihood that the Tribunal would find Ms Blazevic guilty of professional misconduct within the meaning of s 4.4.4(a) of the Act in respect of her failure to comply with her request made pursuant to s 4.4.11(1)(a) of the Act.
At the date of the Commissioner's decision of 19 November 2008 Ms Blazevic had:
failed to provide the Commissioner with a full written explanation of her conduct within the required time; and
failed to respond to her letters dated 20 August and 3 October 2008.
On 24 November 2008 the Commissioner received by facsimile letter dated 26 September 2008 a full written explanation of her conduct.
[27]
As mentioned above the Tribunal found Ms Blazevic guilty of unsatisfactory professional conduct in the earlier proceedings. This finding was on the basis of Ms Blazevic's repeated failure to respond to requests by the Commissioner to provide a full written explanation of her conduct with respect to Mr Horvat's complaint. Ms Blazevic's full explanation was received by the Commissioner on 19 November 2008.
By letter dated 21 November 2008 the Commissioner advised Ms Blazevic that she was satisfied that the letter received was a full written explanation of her conduct and that Ms Blazevic had responded to the issues raised in the complaint.
The letter of 21 November also required Ms Blazevic, pursuant to s 4.4.11(1)(b) of the Act, to provide the Commissioner with her complete original file in this matter, including all documents, letters, file notes and papers, within 16 days.
On 27 November 2008 Ms Barac, on the Commissioner's behalf, telephoned Ms Blazevic to discuss her query about outstanding matters. Ms Blazevic stated, among other things, that she had received the Commissioner's request for the file and would bring it in as soon as possible.
By letter dated 24 December 2008 the Commissioner advised Ms Blazevic, by registered mail that, among other things:
[28]
(a) her response to the Commissioner's letter of 21 November 2008 had not been received;
[29]
(c) her failure to provide the Commissioner with her complete file may constitute a breach of the provisions of the Act and may thereby amount to professional misconduct in accordance with s 4.4.4(a) of the Act; and
(c) she required Ms Blazevic to give this matter her urgent attention and provide her with her complete original file, within 16 days.
[30]
This letter was received by Ms Blazevic on 29 December 2009.
At 6 February 2009, the date on which the Commissioner applied to the Tribunal for orders in this matter, Ms Blazevic had:
failed to provide the Commissioner with her complete original file in this matter; and
failed to respond to the Commissioner's letters of 21 November 2008 and 24 December 2008.
The Commissioner has charged Ms Blazevic with professional misconduct in that she failed to comply, within the required time or at any time, with the Commissioner's request for the provision of the practitioner's complete original file in the matter which is the subject of Mr Horvat's complaint.
[31]
I propose to deal first with charges 1 and 2. The Commissioner submits that the Tribunal should find the practitioner guilty of professional misconduct in respect of both these matters. The misconduct in question is said to arise from the practitioner's failure to provide the Commissioner with a full written explanation of her conduct in respect of the two complaints within the time specified.
The facts advanced by the Commissioner in support of the two charges are not in dispute. It is clear that the practitioner did not provide the explanation sought within the time frame specified in the Commissioner's correspondence. Such conduct is in contravention of s 4.4.11 of the Act and is conduct which is capable of constituting unsatisfactory professional conduct or professional misconduct.
Whether the conduct of a practitioner amounts to misconduct or unsatisfactory conduct will usually be a matter of degree.
In this case the practitioner encountered secretarial problems in having her responses to the Commissioner completed. An initial draft was not saved on her assistant's computer and the dictation tape was erased. As a consequence the responses had to be redrafted. While these matters do not excuse the practitioner's conduct, they are relevant and I have taken them into account.
Two further considerations are also relevant. The first is that during the course of a telephone conversation with Ms Blazevic on 18 November 2008 Ms Barac told the practitioner to focus on the matters listed for hearing the following day. At the relevant time the practitioner had a number of outstanding responses to requests from the Commissioner. She interpreted Ms Barac's comment as an indication that she should prioritise her efforts and focus on the matters which were the subject of the Tribunal hearing on 19 November 2008 (ie. matters J203 and J205/2008). On the basis of this conversation the practitioner believed that she had more time to respond to the matters which are the subject of the current charges.
There is no suggestion that Ms Barac explicitly granted on extension of time in respect of the Commissioner's requests. However her comments during the conversation with the practitioner had a certain ambiguity and were capable of creating the impression suggested by the practitioner. In the circumstances I propose to give Ms Blazevic the benefit of the doubt.
[32]
(ii) An order that Ms Blazevic supply the information requested within 16 days.
[33]
The order sought in respect of the cancellation of Ms Blazevic's practising certificate is in similar terms to the order made by Member Butcher in Legal Services Commissioner v Morgan[1]. In essence such an order would cancel Ms Blazevic's practising certificate and provide that a practising certificate not be granted to her for a 3-month period but that such a period will be reduced to one month in the event that she complied with an order to supply the information requested by the Commissioner.
In considering the question of penalty I have had regard to the nature of the misconduct; the previous disciplinary findings against Ms Blazevic and the fact that she has made admissions in relation to the factual circumstances.
Contrary to the Commissioner's submission I am not persuaded that an order cancelling Ms Blazevic's practising certificate is warranted in the circumstances. The imposition of a fine is a more appropriate penalty. I propose to order that the practitioner pay a fine of $1,500.00.
The Commissioner also seeks an order as to the payment of costs in the sum of $2,509.70[2]. The practitioner did not oppose the making of such an order.
In circumstances where the Tribunal has found a practitioner guilty of unsatisfactory professional conduct or professional misconduct it must make an order requiring the practitioner to pay the Commissioner's costs unless 'satisfied that exceptional circumstances exist'[3]. I am not satisfied that there are any exceptional circumstances in this case and I propose to make an order for the payment of costs in the sum sought by the Commissioner.
Tribunal found two instances of unsatisfactory professional conduct and one instance of professional misconduct; ordered respondent to provide the complete original file in matter J18/2009 by 4pm 16 March 2009; fined respondent $2,500 payable to the Legal Services Board by 4pm 25 March 2009; ordered payment of Commissioner's costs $2,509.70 by 4pm 25 March 2009 (Orders 1–5).
During a subsequent telephone conversation between Ms Blazevic and Ms Barac (solicitor for the Commissioner) on 22 September 2008, Ms Blazevic explained that her assistant was working from home typing the documents and that formatting and saving the responses was the difficulty. Ms Barac advised Ms Blazevic that provision of the responses was her personal responsibility. Ms Blazevic indicated she would contact her assistant and would inform Ms Barac when the responses would be received.
On 26 September 2008 Ms Barac again spoke with Ms Blazevic in respect of this and unrelated complaints. Ms Blazevic indicated that she had spoken with her assistant and that the responses would be received on 29 September 2008. She indicated that the assistant had lost all the information and that the responses needed to be redone.
By registered letter dated 30 September 2008 the Commissioner advised Ms Blazevic that (among other things):
The final matter which is relevant is the fact that shortly after the Commissioner had decided to institute these proceedings Ms Blazevic provided her with full written explanations of her conduct in respect of the two complaints.
In all the circumstances I am satisfied that these matters warrant findings of unsatisfactory professional conduct rather than professional misconduct. Contrary to the submissions of Ms Antonov, on behalf of the Commissioner, I am not persuaded that such a finding will encourage practitioners to be dilatory in their responses to the Commissioner's requests. The finding in this case arises from the particular and unusual circumstances which are unlikely to arise often.
I now turn to the question of penalty.
Sections 4.4.17, 4.4.18 and 4.4.19 of the Act set out the orders which may be imposed if the Tribunal finds a practitioner guilty of unsatisfactory professional conduct. Such orders include:
the imposition of a fine not exceeding $10,000; and
an order reprimanding the practitioner.
The Commissioner seeks the imposition of a fine. I agree. The conduct in question is at the higher end of unsatisfactory professional conduct and warrants the imposition of a monetary penalty. The practitioner has repeatedly failed to respond to requests by the Commissioner to provide a full written explanation of her conduct with respect to the two complaints. The mitigating factors are not as strong as those advanced by Ms Blazevic in the earlier proceedings (ie. J203 and J205/2008). I propose to order that the practitioner pay a fine of $500 in respect of each instance of unsatisfactory professional conduct. I deal with the question of costs later. I now turn to charge 3.
In respect of charge 3 the Commissioner submits that the Tribunal should find the practitioner guilty of professional misconduct. The misconduct in question is said to arise from the practitioner's failure to provide the Commissioner with her complete original file in the Horvat matter and her failure to respond to the Commissioner's letters of 21 November and 24 December 2008.
The facts advanced by the Commissioner in support of the charge are not in dispute but the practitioner submits that while there has been a 'technical breach' of the Act a finding of professional misconduct was not warranted. In this regard the practitioner relied on the following matters:
the file in question is voluminous;
she had outsourced the photocopying and it was not done in a timely fashion; and
on receipt of the letter of 24 December 2008 she had difficulty in contacting the person she had engaged to do the photocopying.
The practitioner has not provided the material sought by the Commissioner within the timeframe specified in the Commissioner's correspondence. Indeed the practitioner has not yet produced the material sought despite having some three months to do so.
I am not persuaded that the matters relied upon by the practitioner constitute a reasonable explanation for her conduct. I find the practitioner guilty of professional misconduct.
In terms of disposition the Commissioner seeks the following orders:
(i) An order cancelling Ms Blazevic's practising certificate.