Legal Services Commissioner v Brondolino (Legal Practice) [2010] VCAT 51

1. The principal registrar is to amend the records of the Tribunal to show the applicant as "Michael Keith McGarvie, Legal Services Commissioner" instead of "Victoria Fay Marles, Legal Services Commissioner".
2. The Tribunal finds that the respondent contravened s.4.4.11(1)(a) of the Legal Profession Act 2004 by failing to comply with a requirement made by the Legal Services Commissioner that she provide a full written explanation of her conduct in relation to the subject matter of a complaint lodged with the Commissioner.
3. The further hearing of this application is to take place at VCAT, 55 King Street Melbourne, at 10.00 on Thursday 18 February 2010.

1. Ms Brondolino is charged by the Legal Services Commissioner with professional misconduct, in that she failed to provide to the Commissioner within the time allowed a full written explanation of her conduct when required to do so. The charge arose out of a complaint made by a Mr. Sulfaro.
2. Ms Brondolino accepted that a full written explanation of her conduct was not provided within the time allowed. However, her counsel submitted that she did not provide an explanation because she made an honest and reasonable mistake, and because there was a risk that to provide an explanation would amount to a contempt of court.

1. I will set out the background to the present application, which is not in dispute:

(b) Ms Brondolino acted for a Mr. Decorrado in proceedings in the County Court in which Mr. Decorrado sought to recover money lent to a Ms Knowles;

(c) the complainant Mr. Sulfaro was a potential witness in the County Court proceedings;

(d) on 5 May 2008, Mr. Sulfaro attended at the office of Ms Brondolino with a view to making an affidavit to be used by Mr. Decorrado in the County Court proceedings;

(f) Mr. Decorrado and a Mr. Lagana were in the same room when Ms Brondolino interviewed Mr. Sulfaro;

(g) an affidavit was prepared straight after the interview, and sworn by Mr. Sulfaro before Ms Brondolino the same day;

(h) on 6 March 2009, Mr. Sulfaro made a statutory declaration. The declaration is in evidence. It does not refer to the County Court proceedings, but it refers to some of the issues in the County Court proceedings;

(i) Mr. Sulfaro deposed in the declaration that, during the course of his interview with Ms Brondolino, he was interrupted and intimidated by Mr. Decorrado and Mr. Lagana;

(j) on 24 March 2009, Mr. Sulfaro lodged a complaint with the Legal Services Commissioner. The most relevant part of the complaint for present purposes reads as follows:

"I'm writing to inform you about a meeting I went to with Mr Aldo Decorrado, Ms Rose Mary Brondolino and Mr. Lagana where in the room and I was on my own, when I went to this meeting I felt I was trapped, intimidated and was very frightened as they wanted me to sign documentation which I didn't want to sign, I felt that I was forced to sign these documentation they asking me questions in which I did not know what they were talking about and I just kept saying that I didn't remember and they were putting words in my mouth and every time I did speak I was told rudely to be quiet by Ms Rose Mary Brondolino."

(k) the trial of the County Court proceedings commenced on 3 July 2009 and concluded on 8 August 2009, although there were two adjournments during the course of the trial;

(l) counsel for Mr. Decorrado decided not to call Mr. Sulfaro to give evidence at the trial;

(m) Mr. Sulfaro gave evidence on behalf of the defendant Ms Knowles, which evidence did not accord with the affidavit sworn by Mr. Sulfaro before Ms Brondolino;

(n) Mr. Sulfaro said in evidence that there was intimidation and interference by Mr. Decorrado and Mr. Lagana when he was interviewed by Ms Brondolino on 5 May 2008.

1. The then Commissioner treated the Mr. Sulfaro's complaint as a disciplinary complaint, which she was obliged to investigate: s.4.4.7(1) Legal Profession Act 2004. As part of her investigation, the Commissioner had power to require Ms Brondolino to provide a full written explanation of her conduct in relation to the subject matter of the complaint: s.4.4.11(1)(a).
2. The Commissioner wrote to Ms Brondolino on 25 May 2009 making a formal request under s. s.4.4.11(1)(a) that Ms Brondolino provide a written explanation of her conduct within 16 days. The letter enclosed a copy of the complaint. It also stated that "Details of the nature of the complaint are that the complainant alleges that present in a conference with you and the complainant were two parties: Aldo Decorrado and Dominic Lagana. You, and these two men, threatened and intimidated the complainant into signing documents that he did not wish to sign".
3. The complaint was handled at the office of the Commissioner by Ms Tina Stagliano, a legal practitioner employed as a complaints officer. It is common ground that Ms Brondolino responded to the letter by telephoning Ms Stagliano two days later, on 27 May 2009. Ms Stagliano and Ms Brondolino gave evidence about their telephone discussion.
4. A file note of the discussion, made by Ms Stagliano, is attached to the Commissioner's application to VCAT. Ms Stagliano gave evidence that the contents of the file note were correct. The file note records that Ms Brondolino informed Ms Stagliano that she felt threatened by Mr. Sulfaro and the defendant Ms Knowles. It also records that Ms Stagliano asked Ms Brondolino "to focus on allegation that she allowed the so-called 'heavies' to be in the room with her and the comp [complainant]". The file note concludes with the words "Asked prac [practitioner] to send through what she could by way of an explanation of her conduct".
5. Ms Brondolino provided a written response to the Commissioner dated 2 June 2009. The response commenced by stating that "I deny each and every allegation made by Mr. Sulfaro". The remainder of the response reads as follows:

"As a matter in which Mr. Sulfaro is a witness is currently before the County Court and issues may arise in evidence, a full and comprehensive response will be provided within a reasonable time after the court has delivered its decision or the matter is resolved, whichever occurs first."

1. The Commissioner replied by a letter dated 17 June 2009, which stated that Ms Brondolino's response did not appear to adequately address the issues. It also sought "details of the proceedings that you claim Mr. Sulfaro is a witness in, and how those proceedings relate to the allegations he has made about you". Ms Stagliano acknowledged in cross-examination that she was aware that the complaint made by Mr. Sulfaro related to current County Court proceedings, and to an affidavit made by Mr. Sulfaro in those proceedings.
2. Ms Stagliano gave evidence that the Commissioner is prepared to accept a written explanation from a legal practitioner on a confidential basis, or on the basis that a copy of the explanation not be given to the complainant. Ms Stagliano acknowledged in cross-examination that she did not bring to the attention of Ms Brondolino, in their correspondence or otherwise, that Ms Brondolino could provide an explanation to the Commissioner on a confidential basis.
3. The Commissioner wrote a follow up letter on 8 July 2009, again asking Ms Brondolino to provide a written explanation of her conduct within 16 days.
4. Ms Stagliano gave evidence that Ms Brondolino did not respond in writing to the letter of 17 June 2009 or the letter of 8 July 2009.
5. As I have mentioned, the trial of the County Court proceedings concluded on 8 August 2009.
6. The present application to VCAT is dated 11 August 2009, but was lodged at VCAT on 20 August 2009.
7. Ms Stagliano acknowledged in cross-examination that she received a telephone call from Ms Brondolino on 19 August 2009, during which Ms Brondolino maintained that she could not say anything until the County Court proceedings were finalised. Ms Stagliano also acknowledged that she responded to Ms Brondolino by saying that Ms Brondolino could raise her concerns with VCAT.
8. Ms Brondolino provided a written explanation of her conduct to the Commissioner on 15 October 2009, which is in evidence.
9. The evidence of Ms Brondolino amounted to an explanation of her reason for not complying with the Commissioner's request until 15 October 2009, more than four months after the making of the request. Ms Brondolino said that she received the letter of request dated 25 May 2009. She said that she then consulted Mr. Corrigan of counsel for advice, as she had engaged Mr. Corrigan to act for Mr. Decorrado. She said Mr. Corrigan gave advice that "I could not provide a full and complete response ... until the completion of the proceedings". Ms Brondolino said that she informed Ms Stagliano to that effect.
10. Ms Brondolino acknowledged in cross-examination that she did not mention Mr. Corrigan in her letter of response dated 2 June 2009. She also acknowledged that she did not set out the substance of his advice in her letter of response. She further acknowledged that she received the Commissioner's letter of 17 June 2009, in which the Commissioner asked for details of the proceedings in which Mr. Sulfaro was a witness, and details of the relationship between those proceedings and Mr. Sulfaro's complaint. Ms Brondolino said that she did not respond to the Commissioner's letter because she already had told Ms Stagliano that an explanation would be given after the conclusion of the County Court proceedings.
11. Ms Brondolino said that she was aware that it was the practice of the Legal Services Commissioner to send to each complainant a copy of the legal practitioner's response to a complaint. She said that she did not want Mr. Sulfaro to have a copy of her response until after the completion of the County Court proceedings. She said that she did not refuse to provide a response, but "sought an indulgence". Ms Brondolino acknowledged in cross-examination that she expected the credit of witnesses to be an issue in the County Court proceedings, but that she did not inform the Commissioner that such was the case. She maintained that it should have been obvious to the Commissioner from Mr. Sulfaro's complaint that the credit of witnesses was in issue.
12. Ms Brondolino acknowledged that she received the Commissioner's follow up letter of 8 July 2009, and that she did not respond. She maintained that she already had provided a response, so no further response was required. She also acknowledged that at no stage did she inform the Commissioner, in writing or otherwise, that she had obtained advice from Mr. Corrigan.
13. A statutory declaration made by Mr. Corrigan was filed in the present proceedings. Mr. Corrigan deposed that he was engaged by Ms Brondolino in late April or early May 2008 to act for Mr. Decorrado. He deposed that "I contacted Ms Brondolino shortly after the receipt of the letter [the Commissioner's letter to Ms Brondolino of 25 May 2009] and expressed the view that it was inappropriate to reply in detail to the letter from LSC until the conclusion of the trial".
14. Mr. Corrigan further deposed that "it was apparent that any detailed reply given by Ms Brondolino to the LSC would almost certainly find its way to Sulfaro, Knowles and/or Dean [a lawyer who had acted for Ms Knowles in the past] with the result that Knowles and her likely witnesses including Sulfaro and Dean would have a detailed proof of what Ms Brondolino maintained had occurred on 5 May 2008 when Sulfaro swore his Affidavit".
15. Mr. Corrigan concluded his declaration by deposing that "It had always been clear that the determination of the County Court proceeding would depend on the relative credibility of Decorrado and Knowles and their witnesses. Given the importance of credit, Knowles and her likely witnesses, Sulfaro and Dean, would have obtained a forensic advantage if they had had advance notice of the evidence which Ms Brondolino could give".
16. I make the following findings as to the investigation of the complaint:

(o) Ms Brondolino was not informed by the Commissioner that she could provide a confidential explanation, or that she could request that her explanation not be provided to Mr. Sulfaro;

(p) at all relevant times, Ms Brondolino remained unaware that she could provide a confidential explanation to the Commissioner, or request that her explanation not be provided to the Mr. Sulfaro;

(q) at all relevant times, Ms Brondolino was aware that it was the practice of the Legal Services Commissioner to send to a complainant a copy of the legal practitioner's response to a complaint;

(r) Ms Brondolino's letter of response dated 2 June 2009 did not provide a full written explanation of her conduct in relation to the subject matter of the complaint;

(s) Ms Brondolino did not provide a full written explanation of her conduct within 16 days after any of the letters sent to her by the Commissioner dated 25 May 2009, 17 June 2009 and 8 July 2009 respectively;

(t) Ms Brondolino provided a full written explanation of her conduct in her letter of 15 October 2009;

(u) Ms Brondolino informed the Commissioner is her letter of 2 June 2009, and informed Ms Stagliano in a telephone discussion, that she could not provide a full and comprehensive response until after the completion of the County Court proceedings;

(v) Ms Brondolino did not provide details, in writing or otherwise (until she wrote her letter to the Commissioner of 15 October 2009), of the nature of the County Court proceedings or the reasons why she was unable to provide a full written explanation of her conduct until those proceedings had concluded;

(w) Ms Brondolino did not inform the Commissioner in writing, or inform Ms Stagliano orally, that the credibility of witnesses was an issue in the County Court proceedings;

(x) Ms Brondolino sought advice from Mr. Corrigan of counsel, and he advised her not to provide a detailed explanation to the Commissioner; and

(y) Ms Brondolino did not inform the Commissioner in writing, or inform Ms Stagliano orally, that she had received advice from Mr. Corrigan not to provide a detailed explanation to the Commissioner. Indeed, even her letter of explanation dated 15 October 2009 did not mention that she received advice from Mr. Corrigan.

1. Counsel for Ms Brondolino submitted that Ms Brondolino was obliged not to provide a full explanation of her conduct.
2. I will repeat the substance of the evidence upon which the submission was based. Ms Brondolino said that she was aware, when the Legal Services Commissioner sought an explanation, that the credit of witnesses would be an issue in the County Court proceedings. She said that she expected to be called as a witness. She said that her "first obligation" was to her client and to the Court. She said that she did not want Mr. Sulfaro to receive a copy of her explanation. She said that she consulted Mr. Corrigan of counsel for advice. The advice was to the effect that she could not provide a full and complete response until the completion of the County Court proceedings. Her evidence was supplemented by the evidence of Mr. Corrigan, set out in his statutory declaration, that he "expressed the view [to Ms Brondolino] that it was inappropriate to reply in detail to the letter from LSC until the conclusion of the trial".
3. Counsel for Ms Brondolino put the submission in two ways. First, he submitted that Ms Brondolino had an honest and reasonable belief, which may have been mistaken, that she was obliged not to provide a full explanation to the Commissioner. Secondly, he submitted that to provide the Commissioner with a full explanation of her conduct, in circumstances where she was likely to be called upon to give evidence about the same conduct during the course of a County Court trial, would have amounted to a contempt of court.
4. As to the first submission and the response to it, I was referred to authorities that draw a distinction between a statute which creates an offence involving absolute liability, and a statute which creates an offence involving strict liability: He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523; Welsh v Donnelly [1983] VicRp 79; [1983] 2 VR 173; Allen v United Carpet Mills Pty Ltd [1989] VicRp 27; [1989] VR 323; Hawthorne v Morcam Pty Ltd (1992) 29 NSWLR 120; Holloway v Gilport Pty Ltd (1995) 79 A Crim R 76; and Wilson v Gahan [1999] VSC 72. The same authorities show that the distinction is relevant where a person has committed the act or omission constituting the offence, but by way of defence maintains that the act or omission occurred because of an honest and reasonable mistake. Such a defence is not available if the offence involves absolute liability, but is available if the offence involves strict liability.
5. In the absence of clear words in the statute, a distinction between absolute liability and strict liability can be difficult to draw: He Kaw Teh v R @ 529. Four factors that need to be considered are set out succinctly in Wilson v Gahan @ [9]. I will deal with those factors in turn.
6. The first factor is the words of the statute. Section 4.4.11 of the Legal Profession Act 2004, alleged to have been contravened by Ms Brondolino, does not provide assistance in determining whether a failure to comply with the section allows a defence of honest and reasonable mistake. Sub-section (6) provides that a person may not refuse to comply with the section because of a duty of confidence, or because compliance may tend to incriminate that person. The sub-section removes two possible defences, but it provides little assistance in determining whether any other defence is available.
7. The second factor is the subject matter of the statute, and in particular whether the purpose of the enactment is to suppress a matter of grave social concern. The purpose of s.4.4.11 is to assist the Legal Services Commissioner to conduct an investigation into a complaint made to the Commissioner. The purpose of s.4.4.11 is not to suppress a matter of grave social concern. It is not, for example, a section designed to suppress the importation of illicit drugs into Australia (as in He Kaw Teh v R), or a section designed to suppress the driving of an overloaded motor vehicle (as in Welsh v Donnelly). The section does not relate to health or safety issues, or any other matter of grave social concern.
8. The third factor is whether subjecting the person concerned to absolute liability will assist in the promotion or observance of the statute. To put it another way, whether the need for compliance is so important that no defence can be permitted. Section 4.4.11 is not a legislative provision of that kind.
9. The fourth factor is that, where the penalty attached to the offence is monetary and moderately sized, the statute is more easily regarded as imposing absolute liability. A contravention of s.4.4.11 is likely to lead to a monetary penalty of moderate size: s.4.4.19(b). This factor tends to indicate that s.4.4.11 was intended by the legislature to impose absolute liability.
10. There is a presumption that a defence of honest and reasonable mistake can be raised in respect of a statutory offence: Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536. Consideration of the four relevant factors as a whole leads me to conclude that the presumption is not rebutted or removed by the statute. Section 4.4.11 does not involve absolute liability, and a defence of honest and reasonable mistake is available.
11. Ms Brondolino having given evidence in support of what she maintained was an honest and reasonable mistake, the burden was placed upon the Legal Services Commissioner to establish that the mistake was not honest and reasonable: He Kaw Teh v R; and Hawthorne v Morcam Pty Ltd.
12. To say that Ms Brondolino made a 'mistake' is not entirely accurate. As I understand it, Ms Brondolino asserts that she was obliged to refrain from providing a full written explanation and, if that assertion is wrong, she failed to provide a full written explanation because she made an honest and reasonable mistake as to her obligations.
13. Ms Brondolino gave evidence that she had obligations to her client and to the Court. An obligation to the court is the subject matter of the second submission, and I will deal with it there.
14. The obligations of a legal practitioner to a client are extensive, with different obligations owed in different circumstances. The relevant obligation of Ms Brondolino to her client Mr. Decorrado is succinctly encapsulated in rule 12 of the Professional Conduct and Practice Rules 2005. The rule provides that "A practitioner must seek to advance and protect the client's interests to the best of the practitioner's skill and diligence, ... and always in accordance with the law including these rules" [Italics added by me].
15. The evidence of Ms Brondolino leads me to find that it was in Mr. Decorrado's interests that Mr. Sulfaro not receive, before he gave evidence in the County Court proceedings, a copy of a full written explanation by Ms Brondolino of her conduct when she interviewed Mr. Sulfaro. Receipt of such an explanation, before he gave evidence, would have created an opportunity for Mr. Sulfaro to tailor his evidence to meet the explanation likely to be given by Ms Brondolino when she gave evidence: see generally Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 @ 551.
16. The evidence of Ms Brondolino, supplemented by the evidence of Mr. Corrigan, leads me to find that Ms Brondolino believed that she had an obligation to protect Mr. Decorrado's interests by refraining from providing a full written explanation to the Commissioner. As Mr. Corrigan deposed, if the Commissioner provided a copy of the explanation to Mr. Sulfaro, Ms Knowles and Mr. Sulfaro would have obtained a "forensic advantage".
17. Ms Brondolino did not make a mistake so far as her obligations to Mr. Decorrado were concerned, and I so find. If she made an honest and reasonable mistake, it was an honest and reasonable mistake that her obligations to Mr. Decorrado required her to refrain from providing any written explanation of her conduct to the Commissioner.
18. Section 4.4.11 authorised the Commissioner to require Ms Brondolino to provide a full written explanation of her conduct. A "full" explanation is an explanation that is as "full" as the practitioner is able to provide. As Ms Stagliano informed Ms Brondolino in their telephone discussion of 27 May 2009, Ms Brondolino was required "to send through what she could by way of an explanation of her conduct".
19. The written response of Ms Brondolino, which I will repeat, was to say "I deny each and every allegation made by Mr. Sulfaro", and then to say "As a matter in which Mr. Sulfaro is a witness is currently before the County Court and issues may arise in evidence, a full and comprehensive response will be provided within a reasonable time after the court has delivered its decision or the matter is resolved, whichever occurs first." The response did not explain any conduct of Ms Brondolino.
20. I will assume for present purposes that Ms Brondolino was entitled to comply with her obligation to protect Mr. Decorrado's interests by not providing an explanation of her conduct during the course of the interview, even though that might not be correct in law.
21. Without breaching that obligation, Ms Brondolino could have provided a more detailed explanation to the Commissioner. She could have explained that she acted for Mr. Decorrado in County Court proceedings in which Mr. Decorrado sought to recover money lent to Ms Knowles. She could have explained that Mr. Sulfaro attended at her office with a view to making an affidavit to be used by Mr. Decorrado in the County Court proceedings. She could have explained that she interviewed Mr. Sulfaro. She could have explained that she prepared an affidavit to be sworn by Mr. Sulfaro. She could have explained that Mr. Sulfaro swore the affidavit in her presence, and that she completed the jurat in her capacity as a legal practitioner. She could have explained that she expected to be a witness in the County Court proceedings. She could have explained that she continued to act for Mr. Decorrado in the proceedings, and that she believed that the credit of witnesses would be an issue in the trial of the proceedings. Finally, she could have explained that she intended to refrain from giving to the Commissioner an explanation of her conduct during the interview, until the conclusion of the County Court proceedings, because her conduct might be an issue in the determination of those proceedings and she was obliged to protect the interests of Mr. Decorrado.
22. Most of the matters just mentioned were put to Ms Brondolino in cross-examination, and she accepted that she did not provide a written explanation of her conduct in relation to the matters that were put.
23. I find that the Commissioner established to the required degree that Ms Brondolino did not make as full an explanation of her conduct as she was able to make without breaching her obligation to protect the interests of Mr. Decorrado.
24. Finally, it is necessary to determine whether Ms Brondolino made an honest and reasonable mistake in believing that she was obliged to refrain from giving any explanation of any kind as to her conduct. Her contention that she made such a mistake lacks credibility. She must have known that to comply with a requirement made under s.4.4.11 she would need to do more than simply deny the allegations made by Mr. Sulfaro and state that "a matter in which Mr. Sulfaro is a witness is currently before the County Court and issues may arise in evidence".
25. The Commissioner then sent another letter to Ms Brondolino on 17 June 2009 which concluded by asking Ms Brondolino to provide to the Commissioner "details of the proceedings that you claim Mr. Sulfaro is a witness in, and how those proceedings relate to the allegations he has made about you". Again, Ms Brondolino's contention that she continued to make an honest and reasonable mistake by believing that she was obliged to refrain from giving any explanation of her conduct lacks credibility.
26. If Ms Brondolino did make a mistake, it was not reasonable for her to do so. I find that the Commissioner established to the required degree that Ms Brondolino did not make an honest and reasonable mistake.
27. The second submission made on behalf of Ms Brondolino was to the effect that provision of an explanation of her conduct during the interview would have amounted to a contempt of court, because she was likely to be called upon to give evidence about the same conduct during the course of a County Court trial.
28. To provide to the Commissioner an explanation of her conduct during the interview may have amounted to a contempt of court. There is a passage in Watts v Hawke & David Syme & Co Pty Ltd [1976] VicRp 77; [1976] VR 707 @ 715 which concludes that "a contempt of Court would be committed if a non-curial tribunal were to investigate and to make findings on matters the same as those in issue in a pending civil claim, and if such investigations and findings would create a real and definite tendency to prejudice or to embarrass the fair trial of the action". I was also referred to State of Victoria v Builders' Labourers Federation [1982] HCA 31; 41 ALR 71 @ 87 where Gibbs CJ said that "speaking generally" there would be a contempt of court in those circumstances.
29. However, it has been described as only a "general proposition" that the disciplinary jurisdiction of a tribunal should give way to criminal proceedings arising out of the same events, as it may be necessary to take immediate disciplinary action against a professional person to protect the public, and not await the outcome of criminal proceedings before doing so: see Lee v Naismith [1990] VicRp 22; [1990] VR 235, especially @ 240. Mason J in State of Victoria v Builders' Labourers Federation @ 119 said that "where there is no intent to interfere with the administration of justice the court must weigh up the competing public interests".
30. There is no evidence that Ms Brondolino informed the Commissioner that the provision of an explanation might amount to a contempt of the County Court. Indeed, Ms Brondolino did not give evidence that she believed that the provision of an explanation might amount to contempt. Her counsel merely submitted that there was a "risk" that the provision of a full explanation might amount to contempt.
31. There being no evidence tending to indicate that Ms Brondolino made an honest and reasonable mistake, to the effect that she must refrain from providing an explanation lest it give rise to a contempt, the Commissioner is not called upon to establish that Ms Brondolino did not make an honest and reasonable mistake.
32. In any case, the second submission would also fail for the same reason as the first submission. Even if Ms Brondolino was obliged to refrain from providing an explanation of her conduct during the interview, because it might amount to a contempt of court, she was required by s.4.4.11 to provide as full an explanation as possible. She could have provided an explanation of the kind outlined by me in response to the first submission, without there being any risk of contempt.
33. Both submissions having been rejected, I find that Ms Brondolino contravened s.4.4.11(1)(a) of the Legal Profession Act 2004 by failing to comply with a requirement made by the Legal Services Commissioner that she provide a full written explanation of her conduct in relation to the subject matter of a complaint lodged with the Commissioner.

PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT?

1. Whether a contravention of s.4.4.11 amounts to professional misconduct or unsatisfactory professional conduct depends upon the seriousness of the conduct. The seriousness of the conduct will depend in turn upon all relevant factors brought to the attention of the Tribunal, and to the manner in which similar factors have been treated in previous cases.
2. Because I reserved my decision as to whether there had been a contravention of s.4.4.11, the issue of professional misconduct or unsatisfactory professional conduct has not been raised during the course of this hearing. If Ms Brondolino wishes to raise the issue, it can be raised when the hearing resumes.