1. In relation to charge 1, the respondent is reprimanded and fined $15,000.00.
2. In relation to charge 2, the respondent is reprimanded, and her practising certificate is suspended for a period of three months, commencing on 25 June 2012.
3. Prior to resuming practice the respondent is to participate in professional training in relation to matters of professional duties and ethics, to the satisfaction of the LSC, amounting to four professional development points over and above the standard obligation for holders of practising certificates.
4. Liberty to apply in relation to the date of commencement of the suspension in order 2, or in relation to order 3 above.

1. The respondent is to pay the applicant's costs, on a party party basis, according to the County Court Scale, to be taxed if not agreed.

1. The events giving rise to this case arose out of the business relationship between respondent, Mary Rose Brondolino, and Mr John Cappellin. They had been childhood friends, with their respective families being close during her school days. Ms Brondolino was admitted to practice in 1973. In the 1980s, they commenced a long business relationship which involved a number of ventures. They invested in property together. They conducted the business of a bar in the 1990s in the city. That venture ended very badly, and left Ms Brondolino with debts of $1.3 million, which she has spent many years working to repay. Despite regarding Mr Cappellin as having major responsibility for that, she continued to engage in business ventures with him. The one which gives rise to this disciplinary proceeding, and which finally ended their amicable association, concerns the ownership and breeding of thoroughbred horses.
2. Ms Brondolino acted on her own behalf in court proceedings and other legal dealings against Mr Cappellin, over the years 2004 to 2008. She was clearly motivated by a deep sense of having been betrayed by a former friend. This led her to take actions which constitute professional misconduct. This case illustrates the pitfalls of a practitioner acting on his or her own behalf in relation to their own private affairs, especially when they feel very deeply about them.

Charge 1 - Representations made to the Magic Millions

1. During 2004, Ms Brondolino said she had discovered that the mare Urageme, which she owned jointly with Mr Cappellin and Mr Geoff Egan, had been used by Mr Cappellin to produce foals which she had not been told about, and that he had dishonestly deprived her of the resultant income. A meeting was held on 7 December 2004 aimed at resolving this dispute, and on 17 December, an agreement (the Agreement) between those three persons was drawn up by Ms Brondolino. It dealt with the ownership of the mare "Urageme", her three foals born October 2002, October 2003 and October 2004, plus the foal it was anticipated she would produce in 2005.
2. The Agreement was headed up "Release" and provided as follows: John Cappellin agreed to transfer his one third share in each of the mare Urageme and the foal born in October 2004, plus the foal anticipated to be born in late 2005, plus $16,666.66 to Ms Brondolino (less the amount of $6,019.66 which had already been paid).
3. For her part, Ms Brondolino agreed to transfer her one third share in the foals born in October 2002 and October 2003 to Mr Cappellin
4. The Agreement recited that John Cappellin would pay all fees with regard to the mare Urageme including but not limited to agistment fees and veterinary fees from 1 March 2003 to 17 December 2004, including stud fees relating to the foal born in October 2004 and the foal anticipated to be born in October 2005. The agreement states that it was made on the 17 day of December 2004. It provided that the above transfers would take place "on the signing of this Agreement".
5. It also contained a release to the effect that for the consideration comprising the transfers referred to above, each party released the other from any loss or expense of any kind in any way connected with the mare Urageme and the foals.
6. The Agreement was signed by Mr Cappellin and Mr Egan on or around 21 December, and sent to Ms Brondolino. Ms Brondolino apparently signed it in late December, but instead of sending it to the other two parties, she kept it in her safe.
7. In late December, Ms Brondolino became aware that the the 2004 foal had a serious foot problem, and that Urageme was no longer pregnant. Thus, she felt she was being cheated out of her side of the bargain.
8. She also became aware that the foal born in October 2003 (named Blanchett) which was to go to Mr Cappellin under the Agreement, was to be sold at the annual yearly sales on the Gold Coast known as the "Magic Millions."
9. Ms Brondolino then sent a letter on 4 January 2005 by facsimile on the letterhead of her law practice to the managing director of the Magic Millions referring to the filly comprising Lot No 671 being the foal of Testa Rossa and Urageme, born 11 October 2003. The letter stated:

This communication is being forwarded to you to advise you that I am one of the owners with respect to the above filly.

I have not agreed to the filly being sold and until such time that you receive my consent in writing the filly is not to be sold and any authority held by Mr Peter Woodward is withdrawn. Mr Peter Woodard is not acting as my agent.

1. On 7 January 2005 Ms Brondolino sent another facsimile to the managing director of the Magic Millions. Again the heading referred to the filly comprising Lot No 671 being the foal of Testa Rossa and Urageme, born 11 October 2003. The letter stated:

I refer to my previous correspondence and confirm that I am a one-third owner of the above horse.

This is to put you on notice that as a one-third owner of the horse I am entitled to one-third of the auction proceeds less any commission due to you and as such I request that you hold in trust for myself such one-third of the proceeds less commission and I have commenced legal action to have my ownership of my one-third share formally registered and upon registration or other order of the Court I shall be requesting that you release the one-third share held in trust by you to myself.

If you do not hold the funds in trust as requested you shall be held liable in legal action if I am unable to recover these funds from whomever you disburse them to.

1. Thus, despite all parties having executed the Agreement which transferred the filly Blanchett to Mr Cappellin, in her two letters to the Magic Millions, Ms Brondolino was claiming that she still had an interest in Blanchett, and that the Agreement was not legally effective.
2. Charge 1 alleges:

Professional misconduct, being misconduct at common law, within the meaning of section 4.4.3(1) of the 2004 Act, in that the Respondent's conduct in:

(a) sending the First and Second Facsimiles on her law practice letterhead and thereby making the representations; and

(b) failing thereafter to take any step whatsoever to correct the Representations.

in circumstances where the Respondent knew or believed that the Representations were false or materially misleading as to the true position, was conduct which separately or together would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable.

1. Ms Brondolino admitted that these faxes to the Magic Millions were untruthful, in that at the time, she believed that the true legal position was that the Agreement had the effect that she did not own any part of the filly Blanchett. Further, she knew she had not commenced legal proceedings, contrary to her statement in the 7 January facsimile. However, she believed she had been cheated, and so she did have a good cause of action in law of some kind or other against Mr Cappellin.
2. She also admitted that between 7 January 2005 and October 2007, when she became aware that the Magic Millions had in fact acted on her request of January 2005, and held onto one third of the proceeds of the sale of the filly Blanchett ($ 22,870.83) since February 2005, she took no step to correct the representations she had made to the Magic Millions, nor to secure the release of the money due to Mr Cappellin.
3. Ms Brondolino pleaded guilty to charge 1 on this basis.
4. The dispute ran on for two and a half years. Ms Brondolino brought a Supreme court action, claiming that the Agreement was valid, and seeking to enforce it (ie, taking the opposite stance to her position stated in the two faxes to the Magic Millions on 4 and 7 January 2005). The confusion as to the true legal position as to the ownership of the horses, and related matters, was never definitively resolved, because the Supreme Court proceedings were settled.
5. That settlement occurred following cross examination of Ms Brondolino during which the suggestion was made that she had engaged in the conduct which is the subject of the two charges in this matter in order to pursue her civil claims against Mr Cappellin. During cross examination, Ms Brondolino admitted that the claim in the 4 January 2005 facsimile to the Magic Millions that she was still a part owner of Blanchett was wrong, that she knew it was wrong when she made that statement, and that she did so because she wanted to protect her interests. She also accepted that her statement in her facsimile of 7 January 2005 that she had commenced legal proceedings was wrong. She said she intended to do so, but had not in fact done so on 7 January 2005.

1. In March 2006, the dispute in relation to Urageme and her foals was still continuing. On 7 March 2006, Ms Brondolino was aware that Mr Cappellin was due to appear in the County Court of Victoria on 9 March 2006 for a plea hearing on various criminal charges brought against him in a matter entirely unrelated to her dispute with him over racehorses. The charges concerned defrauding Victoria University. Mr Cappellin received a two year jail term for these offences.
2. On 7 March 2006 Ms Brondolino had a telephone discussion with Ms Danijela Luzaic of the Law Practice "Lawcorp Lawyers". Ms Luzaic was acting for Mr Cappellin in relation to the County Court plea.
3. Ms Brondolino admitted that during this telephone call on 7 March 2006, she made a number of statements, including statements to the following effect -
   1. that Mr Cappellin was going to jail, and that she wanted what was her before he went to jail for good;
   2. that she had made Mr Cappellin an offer, and she wanted him to accept it before he went to jail; that she would not wait for what was hers forever;
   3. that if Mr Cappellin did not give her what she wanted she would come to his plea hearing and tell the Judge what a crook he really was, and that Ms Luzaic would not want her to do that;
   4. that Mr Cappellin had stolen from her, and that she would tell the Judge what a crook he was so that the Judge knew what he was dealing with; and
   5. that she was an officer of the County Court, that she was allowed to be there, and that Ms Luzaic could not stop her.

Ms Brondolino admitted that these statements were made for the purposes of frightening Mr Cappellin, and obtaining an advantage against him in relation to the settlement of the racehorse dispute.

Professional misconduct, being misconduct at common law, within the meaning of section 4.4.3(1) of the 2004 Act, in that the Respondent's conduct on 7 March 2006 in making the Threat during the course of the Telephone Call was conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable.

1. Ms Brondolino pleaded guilty to charge 2.
2. I set out below the last page and a half of the transcript of the 2008 proceedings in the Supreme Court. This comprises the final part of the cross examination of Ms Brondolino: (The first question is asked by opposing counsel, and the subsequent exchanges appear to be with the judge.)

Then on 7 March did you contact my instructor Ms Lezatt and say that you were going to attend Mr Cappellin's plea hearing and make certain observations at that plea hearing unless your proposal regarding the horses was accepted? ---No. If my memory serves me correctly Ms Lezatt contacted me.

HIS HONOUR: Did you make such an observation to her? --- I did indicate that I wanted to go to the - to Mr Cappellin's plea hearing.

When you say you did indicate does that mean you did say that?

Did you say why?--- Because of my past experience with Mr Cappellin I felt I was a victim as well.

Yes. Did you say what you proposed to do at the plea hearing? ---Just tell - I was going to - I didn't think I'd be heard Your Honour because I wasn't a party to the proceedings in any manner, shape or form, but I just wanted to know what was going on.

Why did you need to tell her you were going as an observer? ---I didn't have to.

Would you like to have a think as to why you did?---I suppose I wanted to get my message across to Mr Cappellin.

Why would your being there convey anything to Mr Cappellin? ---Your Honour, I have lost so much money with this man.

Well, I've heard that a number of times. I am asking you a direct question?---Yes.

Would you like to answer it?---I wanted to frighten him.

- - - you proposed to go to court when a person is facing sentence as a means of getting a civil debt. Is that what you are saying?---No, that wasn't the intention at all.

What is your purpose in going to court, to threaten him?---I wanted to get across the fact that I have been so used and not once, Your Honour. Once was bad enough. I extend the olive branch and then it happens again.

Were you aware that it is a criminal offence for a person to seek to use criminal process for the gaining of a civil debt?--- I wasn't going to do that, Your Honour.

What were you doing?---I just wanted him to understand how I felt. I certainly was not threatening him. I wasn't blackmailing him, Your Honour. There's no way known.

What were you doing?---I was trying to get him to understand how I felt. I know blackmail is not - it's criminal.

1. The matters alleged in the two charges came to light when a complaint was received by the applicant (LSC) from Mr Cappellin dated 27 August 2008, that is, shortly after the settlement of the Supreme Court proceedings.
2. The investigatory process went on until 20 June 2011, when the LSC lodged this Application to VCAT. Although I heard no submissions about this, it appears that the periods during which the ball was in Ms Brondolino's court comprise less than half of this period.

1. At common law, misconduct in a professional capacity has been defined consistently as conduct which would reasonably be regarded as disgraceful or dishonourable by fellow professionals of good repute and competency.[1] It is clear, and Ms Brondolino has admitted, that her conduct in making the false representations to the Magic Millions, and not correcting them, and and in making the treats to Mr Cappellin, would be so regarded by her colleagues. Accordingly, I find Ms Brondolino is guilty of professional misconduct under charges 1 and 2.

1. Ms Brondolino is entitled to credit for her plea of guilty. This was only made after the first directions hearing on 9 February 2012, however, it followed the amendment of the charges so as to refer to her belief at the time she made the representations to the Magic Millions. This replaced the original wording, which relied on the purported true legal position in relation to those representations. Several other amendments were also made to the charges.
2. I also take into account the written character references provided on Ms Brondolino's behalf. They attest to her strong personality, to her courage in taking on matters for the underdog against powerful opponents. including acting pro bono on occasions, or for reasonable fees. They mention her generosity to colleagues and to her friends. She is described as hardworking, and honest and ethical. Also, there is a strong theme that the dispute with Mr Cappellin has dominated her life for the last decade. Clearly, she feels her trust, friendship and generosity have been utterly betrayed. In more recent times, she has also had to deal with a very serious physical health condition.
3. She has one prior finding of professional misconduct, and one prior finding of unsatisfactory professional conduct against her. These related to failing to provide an explanation to the LSC for her conduct in two particular instances. However, it was put by the LSC, and I accept, that these are of a different nature to the present matters, and should not affect the penalty imposed. Similarly, her recent physical sickness does not affect the disposition in this case either.
4. The circumstances of this case are unusual. It was suggested that there would not be many practitioners for whom the decision in this case would be likely to be relevant or applicable, and so general deterrence might be less of a factor for that reason. Mr Watts, for Ms Brondolino, did acknowledge that there needs to be a reasonable element of condemnation. In my view, however, there are elements of this case which do have broad relevance, namely, the misuse of a person's status as a legal practitioner to give, or attempt to give, extra force to contentions or statements which are untrue (charge 1) or threats which are quite unreasonable (charge 2).
5. I deal with the two charges separately, as far as penalty is concerned. Although they both arise out of Ms Brondolino's dispute with Mr Cappellin, they are separate actions 15 months apart.
6. In circumstances where the parties had become embroiled in a somewhat confused legal situation, I am prepared to make some allowance in Ms Brondolino's favour in relation to her statements to the Magic Millions the subject of charge 1. She characterised these as forcefully defending the position of her client (herself) in circumstances where she felt she had been cheated. Clearly, as her plea acknowledged, she crossed the line, and went too far in her representations: she claimed she had a one third interest in the filly Blanchett, when her true belief was that that was incorrect. Secondly, she said she has commenced legal proceedings, when she had not. Both these statements, made on her letterhead as a solicitor, and therefore invoking the additional force that that brings, were dishonest. However, I am prepared to consider these as matters which are not attended by the highest level of moral culpability, given that she felt there was indeed some problem with the legal effectiveness of the Agreement, even though she could not articulate exactly what it was. Similarly, she did at least intend at that stage to commence proceedings, and had taken steps to try to do that in both Queensland and Victoria.
7. On this basis, in relation to charge 1, as well as a reprimand, a fine, rather than any penalty which interferes with her right to practise, is appropriate. Ms Brondolino is reprimanded, and fined $15,000.
8. In relation to charge 2, however, I have concluded it is necessary to impose a period of suspension. Both specific and general deterrence are of significance in this case. A major factor here is her attitude to the conduct now. It was clear from the evidence Ms Brondolino gave that she does not understand the seriousness of her conduct, in making the threats on 7 March 2006. She said in her evidence that she did not think that such threats were improper when made to a solicitor, rather than a lay person. She sought to justify her conduct by reference to the injustices she felt she had suffered at the hands of Mr Cappellin. She did not demonstrate genuine insight into the nature of her conduct, nor genuine remorse.
9. The fact that it is now seven and six years respectively since the conduct the subject of the charges occurred, might ordinarily run in favour of the practitioner. Delay is relevant both in terms of how long a matter is hanging over a person's head, and also in terms of the opportunity it gives the practitioner to demonstrate remorse and rehabilitation.
10. It was put that the threats were to some extent "empty", because a practitioner receiving them would conclude they could not in reality be carried out- it would be unlikely that the prosecution, or a judge, would allow a person such as Ms Brondolino to involve herself in the plea hearing on two days' notice. That may be, however, the threats still carried some sinister force. The defendant and his legal representatives would be likely to feel very nervous as to what might transpire, in the light of such a threat, and to feel vulnerable. Whether the threats constituted blackmail or some related offence I do not speculate. No submissions were made about this, and there was no reference to any action taken in response to those threats. However, I believe it is important that the profession be warned, and the community be reassured, that threats made in circumstances such as these are not acceptable. What Ms Brondolino was doing was trying to achieve some commercial advantage, as, well as, no doubt, giving vent to her anger about the way she felt she had been so unjustly defrauded by Mr Cappellin. She did so in a manner which was not only unseemly, but more importantly, she was seeking to abuse her status as a legal practitioner. The threats would have been more serious if made to a lay person, but they were still improper when made to a solicitor.
11. In relation to charge 2, Ms Brondolino is reprimanded, and her practising certificate is suspended for a period of three months. In recognition of the fact that this will cause inconvenience for her clients, I will order that the suspension not come into effect for one month, and I will grant liberty to apply for any variation of that suspension commencement date. I will also order that prior to resuming practice, Ms Brondolino participate in professional training in relation to matters of professional duties and ethics, to the satisfaction of the LSC, amounting to four professional development points over and above the standard obligations for holders of practising certificates.
12. Ms Brondolino is also ordered pursuant to clause 46D of the Victorian Civil and Administrative Tribunal Act 1998 to pay the costs of the LSC, on a party party basis, according to the County Court Scale, to be taxed if not agreed.

[1] Allinson v General Council of Medical Education and Registration [1894] QB 750; Re a solicitor [1960] VicRp 96; [1960] VR 617.