respondent. Findings: Respondent guilty of five instances of professional misconduct. Orders: fines of $1,000 per finding (total $5,000) payable to the Legal Services Board by 15 October 2009; the...
Key principles
Failure by a legal practitioner to comply, in a timely way, with the Legal Services Commissioner's requests for a full written explanation and for original files or trust records...
Where findings of professional misconduct are sought, the Tribunal applies the ordinary civil standard of proof (balance of probabilities) but will require clear and cogent...
The Tribunal must order payment of the Commissioner's costs where a practitioner is found guilty of unsatisfactory professional conduct or professional misconduct under the 2004...
The Tribunal may impose supervisory or inspection conditions under s 4.4.19 of the Legal Profession Act 2004, but must tailor the form, scope and duration of any supervision or...
Issues before the court
Can a practitioner's failure to comply with the Legal Services Commissioner's written requests for explanation and documents amount to professional...
Plain English Summary
The Legal Services Commissioner prosecuted Ms Maria Blazevic for repeatedly failing to give timely explanations and to produce original files and trust records requested during regulatory investigations. The Tribunal found she had committed five instances of professional misconduct, rejected her explanations (including assertions about mail crossing, reliance on a trust-account inspector, and ill-health as a full excuse), fined her $1,000 per finding, ordered monthly inspections of her practice for six months, and ordered her to pay the Commissioner's costs.
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Deep Dive
1,861 words · generated 06/07/2026
What happened
The Legal Services Commissioner brought two consolidated disciplinary applications in the Victorian Civil and Administrative Tribunal against Ms Maria Blazevic (a sole practitioner). The applications arose from several complaint files where the Commissioner had requested, by registered letter and facsimile, that Ms Blazevic provide a full written explanation of her conduct and produce original files and trust records. The principal complaints discussed in the reasons are the Vuletic complaints (J65/2009) and the Spark & Cannon-related complaints (J89/2009). The Commissioner alleged that Ms Blazevic failed to comply with those requests within the timeframes specified, and that her non-compliance could amount to professional misconduct under the Legal Profession Act 2004 (the 2004 Act).
What standard of proof applies and how does the seriousness of the allegation affect required evidence?
To what extent can ill-health or mental condition excuse non-compliance with regulatory requests?
What dispositional orders are appropriate following findings of professional misconduct for failure to comply with Commissioner's requests?
Cited legislation
No linked legislation citations have been extracted yet.
VCAT conducted hearings on multiple dates (13 May, 24 June, 12 August and 1 September 2009). The Tribunal received evidence from the practitioner, a Law Institute trust-account inspector Mr Garry Cameron, and the practitioner's treating psychologist, Ms Roslyn Berkowitch. After assessing credibility and the documentary trail (registered-post delivery receipts, facsimiles, and admissions made at earlier hearings), Vice President Judge I J K Ross found the respondent guilty of five instances of professional misconduct (two in J65/2009 and three in J89/2009). The Tribunal ordered fines totalling $5,000, monthly inspections of the practitioner's practice for six months, and payment of the Commissioner's costs of $10,192.94. The orders were made on 3 September 2009.
The central factual elements are: (a) the Commissioner sent requests by registered mail and facsimile (for example, letters dated 18 December 2008 and 3 February 2009 in the Vuletic matter; letters dated 12 January 2009 and 13 February 2009 in the Spark & Cannon matters); (b) Ms Blazevic did not provide the requested explanations and documents within the specified timeframes; (c) some material was only provided at or after the hearing, and in one matter the underlying complaint was later withdrawn.
Why the court decided this way
Three interlocking reasons underpin the Tribunal's conclusion.
The documentary and contemporaneous evidence established that the Commissioner provided adequate notice and lawful requests to the practitioner. Delivery evidence (Australia Post delivery confirmations and facsimile receipts) and the Commissioner's letters establish the requests were made and that the practitioner received them (see factual narrative regarding letters of 18 December 2008, 3 February 2009, 12 January 2009 and 13 February 2009; the Tribunal relied on delivery confirmation entries).
The practitioner's explanations for non-compliance lacked cogency. Ms Blazevic's central explanations were: (a) she prepared a response earlier (dated 9 December 2008) but through error did not post it until February 2009; (b) mail had 'crossed' in the post; (c) she relied on conversations with Mr Cameron, who she believed would report progress to the Commissioner; and (d) ill-health (post-traumatic stress disorder and anxiety) affected her capacity. The Tribunal carefully analysed witness evidence and found inconsistencies and vagueness in the practitioner's account (for example, uncertainty about when the 9 December document was typed or posted, see the cross-examination passages summarised by the Tribunal). The Tribunal accepted Mr Cameron's evidence that he expressly told the practitioner he had no involvement in the Commissioner's complaint investigations and that his investigation report did not mention the Vuletic matter. Thus reliance on Mr Cameron did not provide a reasonable explanation for failure to contact the Commissioner's office (the Tribunal rejected that explanation).
The applicable standard and the gravity of discipline required clear and cogent proof. The Tribunal reiterated that the ordinary civil standard of proof applies, but where the consequences are serious, the evidence required to satisfy the Tribunal on the balance of probabilities may need to be clear and cogent (the Briginshaw/Neat Holdings principle as cited). Having regard to the gravity of potential disciplinary consequences and the quality of the practitioner's evidence, the Tribunal concluded it could not accept her accounts as excusing the conduct. The Tribunal therefore concluded the conduct amounted to professional misconduct.
In mitigation the Tribunal took account of the practitioner's prior good record (22 years without blemish until the recent problems), the fact that the practitioner eventually provided the Vuletic documents at the hearing (and undertook to provide remaining documents), withdrawal of the Spark & Cannon complaint, and the psychologist's evidence that counselling and mentoring would be beneficial. Those considerations influenced penalty sizing and the form of remedial orders (fines reduced to $1,000 per finding and the Tribunal ordered inspection rather than the Commissioner's proposed intensive supervision).
Before and after state of the law
Before the decision, the 2004 Act already authorised the Commissioner to require explanations and documents (s 4.4.11) and allowed the Tribunal to make disciplinary findings and orders including fines, supervision, and conditions (s 4.4.17, s 4.4.19). The legal tests for proof remained the civil balance of probabilities subject to the Briginshaw principle; the Tribunal relied upon those settled authorities (Briginshaw; Neat Holdings) to frame the evidentiary requirement in disciplinary contexts.
This decision does not change legal doctrine, but it reinforces key points in the regulatory context:
Repeated failure to comply with lawful Commissioner's requests is capable of constituting professional misconduct, not merely unsatisfactory professional conduct, where the non-compliance is lengthy and obstructive to investigative function.
Medical or psychological conditions may mitigate but do not automatically excuse non-compliance; the tribunal will require cogent medical evidence showing a causal nexus between the condition and the practitioner's inability to respond.
The Tribunal will exercise s 4.4.19 powers flexibly: where the Commissioner's proposed supervisory regime is impractical or disproportionate (legal responsibility of supervisor; availability issues), the Tribunal may instead impose periodic inspections or tailored conditions proportionate to remediation needs.
Costs orders are generally mandatory absent exceptional circumstances following findings of misconduct (Clause 46D, Schedule 1, VCAT Act 1998). The Tribunal enforced costs accordingly.
Practitioners and regulators should take from the case that non-responsiveness to the Commissioner is a high-risk path to professional misconduct findings and that credible, contemporaneous explanations and medical evidence are essential if mitigation is to be effective.
Key passages with plain-English translation
"The Commissioner bears the onus of proof... the allegations must be established to the 'reasonable satisfaction' of the Tribunal." (Tribunal's evidentiary framing), Plain English: The Commissioner must prove the allegations on the civil standard, and because discipline can lead to serious penalties, the Tribunal needs trustworthy and convincing evidence before finding misconduct.
"I am satisfied that the Respondent's conduct amounts to professional misconduct and I will make the findings sought by the Commissioner.", Plain English: After evaluating the evidence, the Tribunal found that the practitioner's failures were serious enough to be called professional misconduct and it accepted the Commissioner's requested findings.
"I reject the practitioner's explanation that Mr Cameron's involvement explained the practitioner's failure... I accept Mr Cameron's evidence... That evidence does not provide a reasonable basis for the practitioner's failure...", Plain English: The Tribunal believed the trust-account inspector's account that he did not handle complaints for the Commissioner, so the practitioner's claim that she relied on him to ensure the Commissioner got her response was not credible.
"In circumstances where the Tribunal has found a practitioner guilty... it must make an order requiring the practitioner to pay the Commissioner's costs unless 'satisfied that exceptional circumstances exist'.", Plain English: If the Tribunal finds misconduct, the Commissioner generally gets costs unless there is an unusually strong reason not to award them.
Tribunal on supervision: it declined the Commissioner's proposed heavy supervision regime because it raised practical problems, and instead ordered monthly inspections for six months aligned to counselling duration, Plain English: The Tribunal tailored remedial steps to be effective and practicable, balancing regulatory protection with fairness to the practitioner.
Each of these passages demonstrates how the Tribunal balanced evidentiary caution with regulatory purpose: protect the public and preserve the investigatory function of the Commissioner while calibrating penalties to the practitioner's circumstances.
What fact patterns trigger this precedent
This decision will be informative where a practitioner:
Repeatedly fails to respond to the Legal Services Commissioner's lawful requests for explanations, statutory declarations, original files or trust records within specified periods; and
Provides late or inconsistent explanations for non-compliance (for example, reliance on mail having 'crossed', late posting, or reliance on third parties not mandated to act as intermediaries); and/or
Asserts ill-health or psychological conditions as reasons for non-compliance without robust, contemporaneous medical evidence demonstrating a causal link between the incapacity and the non-compliance; and
The Commissioner's investigatory function is impeded because timely production is not made, and the practitioner only provides material when compelled at hearing.
Where those features are present, an Australian tribunal is likely to find the conduct capable of professional misconduct and to impose fines and remediation (inspection/supervision) tailored to the practitioner's rehabilitative needs and to public protection.
How later courts have treated it
This deep dive is restricted to analysis and sourcing in the judgment itself. The judgment cites Briginshaw and Neat Holdings when discussing the standard of proof (citing established High Court authorities). The Tribunal applied those authorities as a frame for evidentiary assessment in professional-discipline proceedings. Any later appellate treatment or citing of this particular VCAT decision would need to be researched in subsequent reports; the present reasons themselves do not canvass subsequent cases.
Still-open questions
Scope and responsibility of a supervising practitioner: The Tribunal declined the Commissioner's proposed two-year weekly-supervision model partly because it raised legal and practical questions about the supervising practitioner's responsibilities. The judgment does not fully resolve the legal liabilities or the precise duties a supervisor would bear under s 4.4.19. That remains a live issue for future cases required to design supervision regimes.
Quantitative benchmarks for sanctions: The Tribunal reduced the fines sought and opted for temporary inspection rather than supervision calculated by the Commissioner's proposal. There is no detailed tariff or matrix in this decision for calibrating fines for failures to respond, future decisions will be needed to develop consistent benchmarks.
Medical evidence thresholds: The decision accepts that medical evidence can mitigate but expects a clear causal nexus between condition and professional failings. What degree and form of psychiatric evidence will be sufficient to excuse non-compliance in future cases is not exhaustively defined here.
Interaction between investigator roles: The confusion as to what a trust-account inspector may or may not tell a practitioner (and whether a practitioner may reasonably rely on an inspector as de facto liaison to the Commissioner) was litigated here. The Tribunal preferred direct communication with the Commissioner's office. Future guidance might clarify expectations about practitioners' reliance on external inspectors or agents in regulatory processes.
Procedural safeguards for delivery and receipt disputes: The practitioner advanced 'crossed mails' and late posting defences. While the Tribunal rejected these on the facts, the case leaves open the issue of how disputes about posting, receipt, and internal office mail handling should be evidenced and resolved in disciplinary contexts going forward.
Conclusion: Legal practitioners must treat Commissioner's requests as commands of high regulatory consequence. If unable to comply promptly because of illness or other factors, they must ensure robust contemporaneous evidence and direct communication with the Commissioner's office. Regulators and tribunals will tailor remediation to practicalities but will not excuse unexplained or prolonged non-compliance.
Judgment (69 paragraphs)
[1]
Legal Services Commissioner v Blazevic (Legal Practice) [2009] VCAT 1844 (3 September 2009)
[2]
Legal Profession Act2004 - s 4.4.11 - failure to respond to Commissioner's requests in a timely manner - findings of professional misconduct - past disciplinary history - supervision of practice for six months warranted - fine and costs.
[3]
Legal Services Commissioner v Blazevic (Legal Practice) [2009] VCAT 1844
[4]
The Tribunal finds the Respondent guilty of five instances of professional misconduct as defined by s 4.4.3 of the Legal Profession Act2004.
The Respondent is to pay a fine of $1000 in respect of each of the findings of professional misconduct, totalling $5000, to the Legal Services Board by no later than 4pm on 15 October 2009.
The Respondent's practise is to be subject to inspection once a month by a person nominated by the Commissioner or her delegate for a period of six months commencing 1 October 2009.
The Respondent is to pay the Legal Services Commissioner's costs of $10,192.94, by no later than 4pm on 15 October 2009.
[5]
Ms Maria Blazevic has practised as a legal practitioner since approximately 1 June 1987. Until 16 October 2006 she was a partner in the Melbourne firm of Septimus Jones & Lee Solicitors and thereafter carried on practice as a sole practitioner, under the name Maria Blazevic Barrister & Solicitor, from various addresses.
Before turning to the charges presently before me it is relevant to note that Ms Blazevic has previously appeared before the Tribunal on 19 November 2008 (the November 2008 hearing) and February 2009 (the February 2009 hearing).
The charges at the November 2008 hearing related to the practitioner's failure to comply with requests by the Legal Services Commissioner (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 and the Tribunal accepted the practitioner's submissions in mitigation. Accordingly Ms Blazevic was found guilty of two instances of unsatisfactory professional conduct as defined in s 4.4.4(a) of the Legal Profession Act2004 (the 2004 Act).
Three further charges were brought against the practitioner at the February 2009 hearing
Two of these charges again related to the failure of the practitioner to comply with the Commissioner's requests for a full written explanation of her conduct in relation to disciplinary complaints (J11 and J13/2009).
The Tribunal was satisfied that the particular circumstances warranted findings of unsatisfactory professional conduct as defined by s 4.4.2 of the 2004 Act, rather than findings of professional misconduct as sought by the Commissioner.
The third charge at the February 2009 hearing was in matter J18/2009 and related to the November 2008 charge concerning Mr Horvat's complaint. The Commissioner submitted that a finding of professional misconduct was warranted because the practitioner had failed to provide the Commissioner with her complete original file in the Horvat matter and failed to respond to the Commissioner's letters of 21 November and 24 December 2008. The Tribunal did not accept that the practitioner's submissions constituted a reasonable explanation for her conduct and found her guilty of misconduct as defined by s 4.4.3 of the 2004 Act.
[6]
The charges in matter J65/2009 arise from complaints made by Ms Pamela Vuletic on 13 October 2008 in relation to an employment matter, the purchase of a business and a property settlement.
Charge 1 is of professional misconduct within the meaning of s 4.4.4(a) of the 2004 Act in that Ms Blazevic failed to comply with the Commissioner's request to provide the Commissioner with a full written explanation of her conduct regarding the disciplinary complaint made by Ms Vuletic.
Charge 2 is also of professional misconduct and alleges that the practitioner failed to comply with the Commissioner's request to provide:
[7]
(a) her original file in relation to the employment matter,
[8]
(b) her original file in relation to the purchase of business matter, and
[9]
(c) her original trust account ledger and all trust records in relation to the purchase of business matter,
[10]
regarding the disciplinary complaint made by Ms Vuletic.
[11]
The Commissioner notified Ms Blazevic by letter dated 25 November 2008 of the details 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 2004 Act. That letter was not received by the practitioner, but the Commissioner subsequently sent it by facsimile transmission which was received by the practitioner on 2 December 2008.
No submissions were received from the practitioner within the required time frame and the Commissioner determined that the complaint was a disciplinary complaint and that there were no grounds to dismiss the complaint.
By letter dated 18 December 2008, sent by registered mail, the Commissioner advised Ms Blazevic that she would deal with the complaint as a disciplinary complaint and requested that she provide her with a full explanation of her conduct and certain documents, within 16 days.
Confirmation that Ms Blazevic or her agent received this letter on 19 December 2008 is provided by an Australia Post Delivery Confirmation Advice Receipt.
By letter dated 3 February 2009, sent to the practitioner by registered mail, the Commissioner advised her (among other things) that:
[12]
(i) the practitioner's response to the Commissioner's request by the letter of 18 December 2008 had not been received;
[13]
(ii) her failure to provide the Commissioner with a full written explanation of her conduct and certain documents may constitute a breach of the provisions of the Act and may thereby amount to professional misconduct; and
[14]
(iii) the Commissioner required her to give this matter her urgent attention and provide her with a written explanation of her conduct and certain documents within 16 days.
[15]
An Australia Post Delivery Confirmation Advice Receipt shows that the practitioner received this letter on 9 February 2009.
As at the date of application to the Tribunal for an order, (ie 1 April 2009), the practitioner had:
(i) failed to provide the Commissioner with any written explanation of her conduct;
(ii) failed to produce to the Commissioner certain documents including her original file in relation to the employment matter, her original file in relation to the purchase of business matter and her original trust account ledger and all trust records in relation to the purchase of business matter; and
(iii) failed to respond to the Commissioner's letters of 18 December 2008 and 3 February 2009.
On the morning of the hearing on 13 May 2009 the practitioner provided the Commissioner with a written explanation of her conduct and produced some of the documents referred to in sub-paragraph (ii) above, being the only documents in her possession. The Commissioner accepts that there has now been full compliance with her requests.
Ms Blazevic initially denied the charges and submitted that no findings of professional misconduct or unsatisfactory professional misconduct should be made against her.
The practitioner tendered a written submission in support of her position (Exhibit R1) and gave evidence in the proceeding. In her written submissions the practitioner says:
➢ she received the letter dated 25 November 2008 by facsimile on 2 December 2008 and prepared a response on 9 December 2008, but through error the response was not posted on the date it was prepared;
➢ the letter received on 19 December 2008 was not brought to the practitioner's attention;
➢ the practitioner's response (dated 9 December 2008) was posted on 6 February 2009; and
➢ when the practitioner received the letter from the Commissioner on 9 February she believed that the two letters (ie her response and the Commissioner's follow up letter) had 'crossed' each other in the mail.
In her oral evidence the practitioner initially said that she had prepared a response to the Commissioner's request for an explanation of her conduct on 9 December 2008 but that through error the response was not posted on the date it was prepared but was posted on 6 February 2009. Ms Blazavic also said that the Commissioner's registered mail letter of 18 December 2008 was signed for by her 14 year old son on 19 December, but was not provided to her.
[16]
Ms Pakula: When did you create the document that you say is the response dated 9 December 2008?
[17]
Ms Blazevic: Some time between the date I received the fax of the letter (ie 2 December 2008), and the date on which it was completed, which is the date it was typed. ...
[18]
His Honour: Do you understand what has been put to you? Because you didn't answer that question a moment ago. You said it was prepared some time between the receipt of the fax and when it was typed. The issue here is when was it typed. It is being put to you that it was typed recently and not in fact in December last year?
[19]
Ms Blazevic: Well, Your Honour, the document was typed by someone who does my typing and I cannot really comment on when the document was actually typed, other than the document being typed, and I understand that it wasn't sent.[2]
[20]
Ms Blazevic's evidence about when she had posted the letter dated 9 December 2008 also descended into vagueness under cross examination. She could not recall when it was posted; where it was posted or whether she transferred it to another envelope or put anything else in with it.[3]
Ms Blazevic also relied on conversations with a Mr Garry Cameron to explain her failure to make direct contact with the Commmissioner's office after she had received the Commissioner's letter dated 3 February 2009. Mr Cameron is a trust account inspector with the Law Institute of Victoria who was investigating an irregularity in the practitioner's trust account. That irregularity is unrelated to these proceedings.
The practitioner's evidence may be summarised as follows:
➢ She received a visit from Mr Cameron on 2 December 2008. At that time he mentioned the Vuletic file and had notes which referred to the Vuletic file. The practitioner indicated to him that she had no knowledge of the matter.
➢ After she received the Commissioner's letter dated 3 February 2009 the practitioner did not take any steps to contact Ms Barac of the Commissioner's office to ensure that the Commissioner had received the response that the practitioner says she sent on 6 February 2009. But in mitigation Ms Blazevic says that she had several telephone discussions with Mr Cameron in early February and early March 2009. In these conversations:
Mr Cameron indicated that he was required to report on the progress of matters and he specifically asked her about the Vuletic matter.
Ms Blazevic believes she told Mr Cameron that she had responded to the Vuletic complaint but doesn't think she mentioned that she had posted a response.[4]
[21]
"I believe he asked me, 'Now Vuletic' - he asked me whether I had responded and I indicated that I had, and I think he indicated that I had responded."[5]
[22]
Mr Cameron said that he had to send a report periodically on how the matters being investigated were going:
[23]
"... he asked me had I responded to Vuletic when I had a telephone discussion with him in February and he indicated to me at the same time that he had a duty to report periodically to the Commissioner. So when he asked me about these things, I pictured him on the other side of the phone taking notes for his report to the Commissioner."[6]
[24]
Ms Blazevic did not believe that Mr Cameron was an investigator of complaints against legal practitioners but 'he was asked by the Commissioner to discuss the Vuletic complaint with me'.[7]
The practitioner was in email and telephone contact with Mr Cameron in early February and his investigation report specifically referred to Pamela Vuletic. Ms Blazevic indicated that she would provide the Tribunal with a copy of Mr Cameron's investigation report.[8]
[25]
Ms Blazevic's evidence regarding her contact with Mr Cameron is neatly encapsulated in the following extract from her evidence:
[26]
"I understood that, because he had spoken with Angela Barac... previously and when he said to me that he was under a duty to report periodically to the Commissioner, which he did say to me in early February, I understood that that, when I said to Gary Cameron that I did respond, would be contained in his report as to the progress of addressing matters deemed to need some addressing in the investigation report, I thought that would be conveyed to the Commissioner, as he indicated to me he was under a duty to convey - sorry, under a duty to report the progress of addressing the matters raised during the investigation and arising from the investigation report. I have to say, to be fair, he at no time said to me that I don't have to or that I should not communicate with Angela, but I simply understood that he was saying to me specifically that he had a duty to report on the investigation report. Your Honour, I'm quite happy to provide a copy of the investigation report to the Commissioner and to Ms Barac and to the court, and I'm happy to answer any further questions under cross-examination regarding the report and I believe that I would be prejudiced if I wasn't allowed the opportunity at least to provide by fax a copy of the report, given that it does mention the Vuletic matter...
[27]
His Honour: So his involvement seems to be being relied on by way of the provision of an explanation for the respondent's failure to contact Ms Barac after the receipt of the correspondence in early February. Is that the essence of where-----
[28]
Ms Blazevic: Yes, it is, Your Honour. I'm certainly not indicating that Mr Cameron indicated to me he was going to report to Ms Barac".[9]
[29]
Mr Cameron also gave evidence in the proceedings, on 24 June 2009. He is an inspector employed by the Law Institute of Victoria and his role is to conduct investigations of the trust records of and the records relating to trust money received by, a law practice. Such investigations are dealt with in Division 3 of Part 3.3 of the 2004 Act. Mr Cameron confirms that on 1 December 2008 he was appointed to investigate the trust accounts of the law practice operated by Ms Blazevic.
Mr Cameron attended the practitioner's home on 2 December 2008 for about 3 hours. The practitioner was very co-operative and made all her trust records available to him. During the course of the meeting the practitioner and Mr Cameron telephoned Ms Barac, a solicitor employed by the Commissioner. This led to the Commissioner's letter of 18 November 2008 being faxed to the practitioner.
As to the extent of Mr Cameron's involvement in the Commissioner's investigations and what he told Ms Blazevic about that, he says:
[30]
"It is my invariable practice not to examine files subject to complaints made with the LSC. During my meeting with the practitioner on 2 December 2008. I told her that I had no involvement in the LSC's investigation of any complaint matters but I did suggest to her that it would be prudent for her to attend to any outstanding matters relating to the complaints."[10]
[31]
Mr Cameron subsequently completed his investigation report. It is his practice to give the relevant practitioner a document headed 'Investigation report to Law Practice' which provides a summary of his investigation and contains an acknowledgment by the practitioner at the end in these terms:
[32]
"By signing this investigation report the law practice acknowledges and confirms that remedial action (where necessary) will be undertaken to ensure compliance with Part 3.3 of the Regulations Act."
[33]
In accordance with his normal practice Mr Cameron posted his Investigation Report to Ms Blazevic on 22 December 2008. The practitioner did not sign and return the acknowledgement as requested and so Mr Cameron attended her home on 27 January 2009 and personally handed her a copy of his report with a request that she sign it and return it to him. It was a brief meeting as the practitioner was on her way out.
Mr Cameron has not met with the practitioner since 27 January 2009. He did subsequently contact her by email (on 2 and 11 February) and had telephone conversations with the practitioner on 4 and 16 February 2009.
The email exchanges relate to Ms Blazevic's failure to sign and return the Investigation Report and are not relevant to these proceedings.
During the course of Mr Cameron's telephone conversation with Ms Blazevic on 4 February 2009 he asked her whether she had delivered her files to the Commissioner in the Vuletic and Horvat matters. Mr Cameron also asked Ms Blazevic to provide him with a copy of her response to the Commissioner. He cannot recall what Ms Blazevic said in response to these questions.
On 18 February 2009 Mr Cameron spoke to Ms Barac and asked her whether Ms Blazevic had provided copies of her files in the Vuletic and Horvat matters. Ms Barac told him that she believed nothing had been done in respect of those matters.
On 26 February 2009 Mr Cameron emailed Ms Blazevic concerning the restoration of a trust account deficiency and her response to the Commissioner, as follows:
[34]
"Congratulations. Our records now acknowledge the restoration of the eighteen cent deficiency in the trust account. I understand you have either sent a trust cheque to the Legal Services Board for the 27 cents in interest earned or will now do so; detailing the circumstances of the bank's error in opening the wrong account. You also agreed to formally advise the Legal Services Board that you had now been reissued with your practising certificate and request that they link your current bank account to the new entity, practice number E0015922; and unlink it from the ceased practice E0014223. I would appreciate a copy of that correspondence.
[35]
You also agreed to write to the Legal Services Commissioner to confirm and restate your postal address as 2 Dutchman Court for their records and for them to recognise 140 William St as purely an interview office; to explain the circumstances of the Croatian Herald advertisement and; to respond re the outstanding matters of Vuletic and Horvat. I would also appreciate a copy of that correspondence."[11]
[36]
This email was never received by the practitioner as her email address was recognised as an invalid account.
The evidence of Mr Cameron and Ms Blazevic is consistent in a number of respects:
They met at the practitioner's home on 2 December 2008 and in the course of that meeting telephoned Ms Barac to obtain clarification about the complaints being investigated by the Commissioner. This led to the Commissioner's letter of 18 November 2008 being faxed to the practitioner.
They briefly met on 27 January 2009, exchanged emails in February 2009 (on 2, 3 and 11 February; see Attachments GJC4 and GJC6 to Mr Cameron's witness statements) and spoke by telephone on 4 and 16 February 2009.
Mr Cameron made reference to the Vuletic and Horvat complaints in the course of his telephone conversation with Ms Blazevic on 4 February 2009.
Mr Cameron's evidence conflicts with Ms Blazevic's account in a number of other respects. Ms Blazevic says that Mr Cameron told her that he had a duty to report periodically to the Commissioner on the progress of matters. Mr Cameron says he specifically told Ms Blazevic that he had no involvement in the Commissioner's investigation of any complaint matters and that he reported to the Legal Services Board. Mr Cameron denies telling Ms Blazevic that he reported to the Commissioner.
Ms Blazevic also said that the Investigation Report specifically referred to Pamela Vuletic. A copy of the report is attached to Mr Cameron's witness statement at Attachment GJC3. The report makes no mention of Pamela Vuletic.
[37]
As I have indicated, the practitioner's evidence became uncertain in relation to when the response dated 9 December 2008 was actually created and under cross examination she was unable to recall when the response was posted (despite her previous assertion that she posted the response on 6 February 2009).
Ms Blazevic was also evasive under cross examination and, at times, non responsive.[12] She was not an impressive witness. I have decided to treat her evidence with considerable caution.
The Commissioner bears the onus of proof in respect of the allegations of misconduct made against Ms Blazevic. The standard of proof required is proof on the balance of probabilities, or to put it another way the allegations must be established to the 'reasonable satisfaction' of the Tribunal.[13] The strength of evidence necessary to establish a fact on the balance of probabilities may vary according to the circumstances. As their Honours Mason CJ, Brennan, Deane and Gaudron JJ said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd:
[38]
"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[14]
[39]
In the circumstances of this case I am conscious of the potential gravity of the consequences for the practitioner in the event that the allegations are established to the 'reasonable satisfaction' of the Tribunal. It follows that clear and cogent evidence will be required before such satisfaction can be attained on the balance of probabilities.
On the basis of the material before me I find that:
[40]
(i) the response dated 9 December 2008 was not created until after the practitioner had received the Commissioner's letter dated 3 February 2009;
[41]
(ii) the practitioner's response was not mailed to the Commissioner at all but rather it was hand delivered to the Commissioner's representatives just prior to the commencement of the hearing on 13 May 2009;
[42]
(iii) at the hearing on 13 May 2009 the practitioner produced some of the documents requested by the Commissioner and undertook to provide the balance of the documents by the end of that week. I am advised that the requested documents were provided in accordance with the practitioner's undertaking;
[43]
(iv) the practitioner has now satisfied all relevant aspects of the Commissioner's requests of 18 December 2008 and 2 February 2009, albeit that the responses were not provided until the hearing on 13 May 2009 and the Commissioner's requests were not fully met until 15 May 2009.
[44]
I reject the proposition that Mr Cameron's involvement explained the practitioner's failure to contact Ms Barac after she received the Commissioner's correspondence on 9 February 2009. I accept Mr Cameron's evidence as to his exchanges with the practitioner. That evidence does not provide a reasonable basis for the practitioner's failure to contact the Commissioner's office after receiving her letter on 9 February 2009.
I also reject the practitioner's evidence to the effect that during her telephone conversation with Mr Cameron on 4 February 2009 she told Mr Cameron that she had responded to the Vuletic complaint.
It is likely that during this conversation Ms Blazevic agreed to respond to the Vuletic complaint (as opposed to telling him that she had already responded). This is also consistent with the email of 18 February which Mr Cameron attempted to send to the practitioner. In that email Mr Cameron says, relevantly:
[45]
"You also agreed to write to the Legal Services Commissioner ... and to respond re the outstanding matters of Vuletic and Horvat."
[46]
At the hearing on 12 August 2009 the practitioner advanced a further explanation for her conduct, based on ill health. The practitioner tendered an unsworn affidavit (subsequently adopted during the course of her oral evidence) which says, relevantly,
[47]
I have been advised by my treating psychologist, Roslyn Berkowitch that I have 'post traumatic stress' arising from an incident in 2005 when I was physically attacked by a client in my office when I refused to distribute to him proceeds from his late mothers estate. The client placed his hand around my neck and stated words to the effect of 'I will break your fucking nect'.
[48]
In May 2008 a client who's appeal was to be heard the following day said to me that he would 'blow me away'. He had previously made a Complaint to the Legal Services Commissioner regarding Counsel who defended him in the court below. I was in fear for my life and encountered severe stress.
[49]
I have been informed by my psychologist that I do not require medication and that she will be able to assist me with counselling. I have every intention of attending counselling until I have learned necessary strategies to cope with relevant situations."
[50]
The Commissioner submitted that little weight could be attached to this evidence - it is hearsay and is not supported by any evidence from the practitioner's treating psychologist. After hearing from the parties the Tribunal decided to provide the practitioner with an opportunity to file a report from her treating psychologist, Ms Roslyn Berkowitch. In her report Ms Berkowitch says:
[51]
"This is to certify that Ms Blazevic attended the above rooms on the 15/07/09, and is currently undergoing a Counselling and Therapy program for Post Traumatic Stress Syndrome due to various incidents which have caused her ongoing distress and dysfunction. The latter appear to be expressed in an inability to function professionally when faced with situations sharing common elements of the original trauma and rendering Ms Blazevic 'paralysed with fear'."
[52]
Ms Berkowitch gave oral evidence at the hearing on 1 September 2009. The following points emerged during the course of Ms Berkowitch's evidence:
➢ Ms Berkowitch is a registered psychologist in Victoria and has practised for over 35 years as a counselling psychologist (as opposed to a clinical psychologist);
➢ the witness has seen the practitioner in a professional capacity on two occasions (15 July and 26 August) and the practitioner has made an appointment to see her on 2 September 2009;
➢ the practitioner has a 'fairly mild' case of post traumatic stress disorder and is suffering from anxiety;
➢ the practitioner expresses a fear of opening envelopes - Ms Berkowitch said that the association between this fear and the practitioner's post traumatic stress disorder was 'a little tenuous';
➢ the practitioner is clearly anxious and would respond well to therapy - at least 18 weeks therapy was required;
➢ no regular course of appointments has yet been set and at this stage Ms Berkowitch is not sure how committed the practitioner is to the program; and
➢ providing the practitioner with a professional mentor would be 'a good idea'.
The practitioner said that she experienced anxiety and panic attacks in certain situations which led to an inability to function professionally in those circumstances. She acknowledged that she had issues which needed to be addressed so that she could develop coping mechanisms. Absent such coping mechanisms the practitioner conceded that she is not going to be able to respond to complaints, or anger from clients, without 'paralysing fear'.
The Commissioner seeks two findings of professional misconduct on the basis of the practitioner's lengthy and extensive failure to respond to the Commissioner's correspondence.
At the hearing on 1 September, and contrary to her initial position, the practitioner did not oppose findings of unsatisfactory professional conduct.
The practitioner failed to respond to the Commissioner's repeated requests for an explanation of her conduct in respect of the Vuletic complaint and to provide certain documents. The practitioner was also put on notice that the failure to provide the Commissioner with the explanation and documents requested may constitute a breach of the 2004 Act and hence amount to professional misconduct. Despite all this, and the institution of these proceedings, the practitioner only provided the Commissioner with the information requested after the hearing commenced.
[53]
The three charges in this matter arise from a complaint dated 7 July 2008 from Gwynne Thompson Solicitors on behalf of Spark & Cannon Australasia in respect of the disbursements of trust monies. Each of the charges is of professional misconduct within the meaning of s 4.4.4(a) of the 2004 Act.
Charge 1 alleges that Ms Blazevic failed to comply with the Commissioner's request that she provide the Commissioner with a statutory declaration setting out her specific comments or explanation in relation to Gwynne Thompson Solicitors' response dated 18 December 2008.
Charge 2 alleges that the practitioner failed to comply with the Commissioner's request that she provide the Commissioner with her complete original file in relation to Mr Cesljar's Federal Magistrates' Court matter which relates to the Spark & Cannon disciplinary complaint.
Charge 3 alleges that the practitioner failed to comply with the Commissioner's request to verify the details contained in paragraphs 1 to 6 of her written explanation dated 26 September 2008, by statutory declaration.
The Commissioner notified Ms Blazevic by letter dated 7 August 2008 of the details 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 2004 Act.
After receiving no submissions from the practitioner within the required time frame the Commissioner determined that the complaint was a disciplinary complaint and that there were no grounds to dismiss the complaint.
By letter dated 20 August 2008 the Commissioner advised the practitioner that she required her to provide a full written explanation of her conduct with regard to the subject matter of the complaint, within 16 days.
By letter dated 3 October 2008, sent by registered mail, the Commissioner advised the practitioner (among other things) that:
(i) the practitioner's response to the Commissioner's request by letter dated 20 August 2008 had not been received;
(ii) her failure to provide the Commissioner with a full written explanation of her conduct may constitute a breach of the provisions of the 2004 Act and may thereby amount to professional misconduct; and
[54]
It is convenient to deal with both of these matters together.
In respect of the five findings of professional misconduct (two in respect of J65/2009 and three in respect of J89/2009) the Commissioner seeks the following orders:
(i) That the Respondent is fined $1500 in respect of each offence (ie a total fine of $7500);
(ii) Pursuant to section 4.4.19(d) of the Legal Profession Act2004, the Tribunal orders that the Respondent for a period of two years, be subject to the supervision of a Local Legal Practitioner who:
(a) has held a Principal Practising Certificate for not less than 10 years; and
(b) is a person first approved by the Applicant for the purpose of supervision; and
(c) is to meet with the Respondent on a weekly basis to supervise her response to correspondence and other matters pertaining generally to the management of her practice; and
(d) is to report on a six-monthly basis to the Applicant; and
(e) whose costs (if any) are to be borne by the Respondent.
(iii) Pursuant to section 4.4.17(d) of the Legal Profession Act2004, the Tribunal imposes on the Respondent's practising certificate a condition that she be subject to supervision as set out in Order 4.
(iv) That the Respondent pay the Applicant's costs fixed in the sum of $10,192.94.
The Commissioner conceded that the supervision order proposed was unusual but submitted that it was warranted in the circumstances. The Commissioner also drew the Tribunal to the fact that the following orders could also be made pursuant to s 4.4.19 of the 2004 Act:
[55]
"(h) an order that the practitioner's practice be subject to periodic inspection by a specified person for a specified period;
[56]
(i) an order that the practitioner seek advice in relation to the management of the practitioner's practice from a specified person; ...
[57]
(l) an order that the practitioner report on the legal practice of the practitioner to a specified person at specified intervals ..."
[58]
In considering the question of penalty I have had regard to the nature of the misconduct; the previous disciplinary findings against Ms Blazevic, the fact that she has, albeit belatedly, provided the documents and explanation sought.
In relation to the question of penalty Ms Blazevic advanced the following submissions. The practitioner asked the Tribunal to accept an undertaking that she would continue to attend such counselling as considered necessary by her treating psychologist and general practitioner. .
The practitioner pointed to the fact that prior to the difficulties experienced in the last 12 months she had practised for 22 years without blemish and her failings were in a critical but narrow area of her professional work. It was submitted that a supervision order was better suited to practitioners who had experienced a broad range of problems and that was not the case here. If the Tribunal were minded to make a supervision order then the two year period proposed by the Commissioner was excessive and a period of six months would be more appropriate.
I am satisfied that the imposition of a fine and some form of supervision order is appropriate. I am not persuaded that a fine of $1500 in respect of each finding is warranted. Having regard to the fact that the practitioner complied with the Commissioner's requests in the Vuletic matter (albeit belatedly) and that the requests in the Spark an Cannon matter are no longer pressed, a fine of $1000 in respect of each finding is appropriate.
As to the question of supervision I am not persuaded that either the terms of the proposed order or the proposed duration are appropriate. The form of the proposed order gives rise to a number of difficulties - what is the legal responsibility of the supervising practitioner in relation to any errors made by the practitioner? What if there is no suitably qualified practitioner available to take on the task?
I agree that some form of supervision is needed while the practitioner is undertaking counselling. I propose to make an order is the following terms:
[59]
"The Respondent's practice is to be subject to inspection once a month by a person nominated by the Commissioner or her delegate for a period of six months commencing 1 October 2009."
[60]
The duration of supervision broadly coincides with the period of counselling which Ms Berkowitch thought necessary. I accept the practitioner's undertaking that she will attend the counselling deemed necessary by her treating psychologist and general practitioner.
The Commissioner also seeks an order as to the payment of costs in the sum of $10,192.94. The practitioner made no submissions in relation to the making of such an order.
In circumstances where the Tribunal has found a practitioner guilty of unsatisfactory professional conduct or professional misconduct pursuant to the 2004 Act it must make an order requiring the practitioner to pay the Commissioner's costs unless 'satisfied that exceptional circumstances exist'[15]. 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.
[9] Ibid, p38 at lines 8-31; p39 at lines 1-2 and lines 27-31; p40 at lines 1-3
[64]
[10] Mr Cameron's witness statement Exhibit A1 at paragraph 9
[65]
[11] Attachment GJC9 to Mr Cameron's witness statement Exhibit A1
[66]
[12] For example: when asked what steps she had taken since the last disciplinary proceedings: p21 at lines 24-31; p22 at lines 1-20; p23 at lines 23-31 and p24 at lines 1-10; and regarding the instructions she had given her son about mail addressed to her: p25 at lines 14-31 and p26 at lines 1-15; and about when she posted the response to the Commissioner: p30 at lines 21-31 and p31 at lines 1-27.
Findings: Respondent guilty of five instances of professional misconduct. Orders: fines of $1,000 per finding (total $5,000) payable to the Legal Services Board by 15 October 2009; the respondent's practice to be subject to monthly inspection by a person nominated by the Commissioner for six months from 1 October 2009; respondent to pay the Commissioner's costs of $10,192.94 by 15 October 2009.
I now turn to the charges presently before the Tribunal.
There is an inherent inconsistency in this aspect of the practitioner's evidence. On her own version of events, at the time she prepared the response to the Commissioner's request (ie on 9 December 2008) the only correspondence she had received from the Commissioner was the letter dated 25 November (which she received by facsimile on 2 December 2008). This letter simply details the nature of the Vuletic complaint and affords the practitioner an opportunity to make submissions on whether the complaint should be treated as a disciplinary compliant or be summarily dismissed. Importantly that correspondence did not ask that the practitioner provide the Commissioner with a full explanation of her conduct. This begs the question - why would the practitioner prepare a response to the Commissioner's request for an explanation of her conduct before she received such a request? These matters support an inference that the response said to have been prepared on 9 December 2008 was in fact prepared later, probably after the practitioner received the Commissioner's correspondence dated 3 February 2009.
When confronted during cross examination with the logical inconsistency in her evidence, Ms Blazevic became somewhat vague about when the response dated 9 December 2008 was created:
The ability to undertake investigations into the conduct of legal practitioners is an important part of the regulatory regime established by the 2004 Act and hence an important means of protecting the public. By her conduct the Respondent has adversely affected the Commissioner's ability to comply with her statutory obligation to conduct an expeditious investigation of these complaints.
For reasons I have already given I reject the Respondent's explanation of her failure to respond in a timely way. Nor am I persuaded that the practitioner's medical condition excuses her conduct. According to her treating psychologist the association between the practitioner's expressed fear of opening envelopes and her post traumatic stress disorder is 'a little tenuous'. I accept that the practitioner is suffering from anxiety but the state of the evidence is such that I am not satisfied that her anxiety provides a complete explanation for her conduct.
I am satisfied that the Respondent's conduct amounts to professional misconduct and I will make the findings sought by the Commissioner. I deal with disposition later and now turn to matter J89/2009.
(iii) the Commissioner required her to give this matter her urgent attention and provide a written explanation of her conduct within 16 days.
On 19 November 2008 a letter from the Commissioner was personally hand delivered to the practitioner advising her that the Commissioner was satisfied that there was a reasonable likelihood the Tribunal would find her guilty of professional misconduct in respect of her failure to comply with the Commissioner's request.
By facsimile dated 26 September 2008 (received by the Commissioner's office on 24 November 2008) the practitioner provided the Commissioner with a full written explanation of her conduct.
The Commissioner subsequently applied for an order in respect of the practitioner's alleged failure to respond to her request within the time specified. The Tribunal reference was J13/2009 and the matter was set down for hearing on 23 February 2009.
In the meantime the Commissioner continued her investigation of the Spark & Cannon complaint.
By letter dated 12 January 2009, sent by registered mail, the Commissioner advised the practitioner that, amongst other things:
(a) she required her, pursuant to section 4.4.11(1)(b) of the Act, to provide her with her specific comments or explanation in relation to Gwynne Thompson Solicitors' written response dated 18 December 2008; and to provide that response by statutory declaration, within 16 days;
(b) she required her, pursuant to section 4.4.11(1)(b) of the Act, to provide her with her complete original file in relation to Mr Cesljar's Federal Magistrates' Court matter, within 16 days; and
(c) she required her, pursuant to section 4.4.11(1) of the Act to verify the details contained in paragraphs 1 through to 6 of her letter to my office dated 26 September 2008, that being the practitioner's full written explanation, by statutory declaration within 16 days.
An Australia Post Delivery Confirmation Advice Receipt for RL51672908 shows that the practitioner received this letter on 9 February 2009.
By letter dated 13 February 2009, sent by registered mail, the Commissioner advised the practitioner that, amongst other things:
(a) no response had been received to the letter dated 12 January 2009;
(b) her failure to provide the Commissioner with a full written explanation by statutory declaration, her further comments by statutory declaration and her file may constitute a breach of the provisions of the 2004 Act and may thereby amount to professional misconduct; and
(c) the Commissioner required her to give this matter her urgent attention and provide the further information and documents sought, within 16 days.
Matter J13/2009 was heard by the Tribunal, as presently constituted, on 23 February 2009.
On 25 February 2009 the Tribunal found Ms Blazevic guilty of unsatisfactory professional conduct in that she failed to respond to the Commissioner's request for a full written explanation made pursuant to section 4.4.11(1)(a) of the Act.
During the Tribunal hearing the practitioner made various admissions and statements to the Tribunal from the Bar table. In particular:
➢ she admitted that she had received the Commissioner's letter of 12 January 2009;
➢ she advised the Tribunal that she would provide her file in this matter to the Commissioner by close of business on 24 February 2009;
➢ she advised the Tribunal that she would provide the material sought in the Commissioner's letter of 12 January 2009 to the Commissioner by 4pm on 24 February 2009.
Angela Barac of the Commissioner's office made contemporaneous file notes of these admissions and statements.
The practitioner did not provide the Commissioner with her file or the further material sought.
On 12 March 2009 the letter dated 13 February 2009 referred to above was returned to the Commissioner's office by Australia Post marked 'refused'.
As at the date of the Commissioner's application to the Tribunal (on 13 May 2009) the practitioner had:
(a) failed to provide the Commissioner with her specific comments or explanation in relation to Gwynne Thompson Solicitors' response in her letter dated 18 December 2008 by statutory declaration;
(b) failed to provide the Commissioner with her complete original file in relation to Mr Cesljar's Federal Magistrates' Court matter;
(c) failed to verify the details contained in paragraphs 1 through to 6 of her full written explanation dated 26 September 2008 by statutory declaration; and
(d) failed to respond to the Commissioner's letter of 12 January 2009.
The Spark and Cannon complaint was formally withdrawn on 23 June 2009 as the amount said to be owed to the complainant had been paid. The Commissioner had previously received telephone advice (on 19 June 2009) indicating that the complaint was withdrawn.
As the complaint has now been withdrawn the Commissioner no longer presses her requests in respect of this matter.
The facts advanced by the Commissioner in support of the charges are not in dispute. It is clear that the practitioner did not undertake the action sought within the time frame specified in the Commissioner's correspondence. Such conduct is in contravention of the 2004 Act and is conduct which is capable of constituting professional misconduct.
Ms Blazevic advances two reasons for her failure to respond to the Commissioner's requests:
ill health; and
she believed that the Spark and Cannon complaint had been withdrawn.
I have already dealt with the practitioner's submissions regarding her mental state at the relevant time.
As to the second matter it is submitted that on or about 9 February 2009 the practitioner had a telephone conversation with someone from Gwynne Thompson Solicitors and was told that they would not be continuing the complaint against her. On this basis the practitioner apparently did not consider it was necessary to respond to the Commissioner's requests.
I do not accept the practitioner's explanation for her failure to comply with the Commissioner's requests in a timely way. The explanation advanced is inconsistent with the undertakings proffered by the practitioner during the proceedings on 24 February 2009. In those proceedings the practitioner said that she would comply with the Commissioner's requests. At that time the practitioner made no reference to her conversation with a representative of the complainant, nor did she communicate her belief that the complaint had been withdrawn.
The Commissioner seeks three findings of professional misconduct within the meaning of s 4.4.4(a) of the 2004 Act on the basis of the practitioner's failure to provide, in a timely fashion, the material and documents requested by the Commissioner. I am satisfied that the Respondent's conduct amounts to professional misconduct and I will make the findings sought by the Commissioner.