A delay of eight months in the finalisation of a deceased estate, with no explanation of the delay, is such a serious contravention of the Rules as to amount to professional misconduct...

1. In respect to the alleged contravention of Rule 39.1, the Tribunal held:[13]

Rule 39.1 is also short and to the point, namely "a Practitioner, in the course of engaging in legal practice, must communicate effectively and promptly with clients of the Practitioner".

I accept the evidence of [the complainant] that he had no communication from [the practitioner] from 22 December 2006 until 28 August 2007. I also accept his evidence that he telephoned the office of [the practitioner] on several occasions during that period and left messages, but received no response. A failure to communicate for eight months, in circumstances of unexplained delay, clearly establishes that [the practitioner] did not communicate effectively and promptly with [the complainant]. I find that [the practitioner] contravened Rule 39.1.

As I have mentioned, whether a contravention of the Rules amounts to unsatisfactory professional conduct or professional misconduct depends upon the seriousness of the conduct. A failure to communicate with [the complainant] from 22 December 2006 until 28 August 2007, in circumstances where [the complainant] was trying to ascertain what was happening with the administration of the estate, was such a serious contravention of the Rule as to amount to professional misconduct. ...

The unacceptable conduct in this matter tended to predate the unacceptable conduct in the matters previously dealt with by the Tribunal. In those circumstances, I do not intend to cancel the practising certificate held by Mr Morgan. However, any unacceptable conduct on the part of Mr Morgan in the future is likely to lead to the loss of his right to practise.[14]

1. In Legal Ombudsman v Weigl[15] the Legal Profession Tribunal reprimanded and fined a practitioner the sum of $10,000 in respect to charges of misconduct and failing to finalise the administration of an estate within a reasonable time; and failing to communicate effectively and promptly with clients and the beneficiaries of the estate.
2. In that case the practitioner first took instructions in respect of the estate in October 1999 and the estate was still not finalised in February 2005. No work was done on the file after August 2003. Administration of the estate should not have presented any difficulty to a solicitor of reasonable competence and diligence. The Tribunal found that the practitioner's conduct and inaction constituted 'a very serious failure to reach reasonable standards of competence and diligence'.
3. The practitioner was also charged with misconduct by failing to provide the Legal Ombudsman with a written explanation of his conduct. As a consequence, orders to the following effect were made:
   • (a) the practitioner's practising certificate was altered to be an 'employee only' certificate;
   • (b) he was disqualified from holding a principal's practising certificate for three years; and
   • (c) he was ordered not to accept or embark on any new matters for a specified period.
4. When medical evidence was presented to explain why the practitioner had failed to respond to the Ombudsman, the Tribunal held that:

Section 149(1)[16] is a key provision for the smooth operation and regulation of the legal profession both from the point of view of community protection and the interests of the profession.

We are satisfied the legal Practitioner was fully aware of the requirements of s 149(1). He well knew his obligation was to reply to the Legal Ombudsman's request. His failure to reply was a conscious, deliberate, intentional decision on his part. Other factors may very well have influenced that decision, for example, his personality as it developed from childhood, his inability or embarrassment to admit personal error and his expressed anger and resentment at what he at the time says were unjustified complaints, but now concedes were justified.

1. In the present case, the Respondent's aggregate misconduct is clearly more grave than the respondent in either of the Morgan and Weigl cases by reason of:
   • (a) The number of complainants;
   • (b) The extended period of time over which the failure to properly manage files and communicate to clients occurred; and
   • (c) The persistent failure to respond to proper enquiries made by the Applicant.

1. There are certain fundamental principles which apply to the penalty powers in a disciplinary proceeding:
   • (a) The primary aim of an order is to protect the public and to protect the reputation of the profession itself;

...the jurisdiction of the Tribunal to deal with - that is to discipline - a practitioner for misconduct, while it includes a power to punish, is to be regarded as very largely protective. Hence, although the Full Tribunal may impose a fine ... its concern should ordinarily be not so much to punish as to protect members of the public against professional misconduct.[17]

(b) Sentencing principles apply to achieve such aim, particularly the objectives of specific and general deterrence; as well as denunciation of the conduct;

(c) The available sanctions and the objectives of specific and general deterrence, depend upon the sanctions having punitive effect,[18] and

(d) It follows as a necessary corollary that it is not an objective of an order, to seek to maximise or maintain the practitioner's capacity to earn a living and pay his/her debts. Otherwise all legal practitioners who find themselves in impecunious circumstances, could, on that basis alone, seek to resist an order to suspend or cancel their practising certificate.

1. The Tribunal accepts that, specific deterrence is a significant objective in determining any sanction by reason of the Respondent's:
   • (a) Failure to respond to the Applicant's proper enquiries during its investigation, which has resulted in the complainants, the subject of charges under File Numbers J181/2012 and J24/2012, still not having their complaints addressed or resolved; and
   • (b) His past history of similar misconduct.
2. It is of particular concern that, notwithstanding earlier adverse findings against the Respondent, encompassing the period from 2000 to 2011 and including the finding of professional misconduct by the Tribunal in 2009, the Applicant has failed to act upon such findings and previous sanctions. Accordingly, the Tribunal must conclude that the previous relatively lenient sanctions have been ineffective in inducing compliant behaviour in the Respondent.
3. The Tribunal also accepts that general deterrence is a particularly important objective in this case. The misconduct committed by the Respondent strikes at the very essence of a competent solicitor's practice. While there is no suggestion that the Respondent misappropriated client moneys or otherwise acted dishonestly, his conduct caused gross delay in the conduct and finalisation of numerous files, coupled with a serious failure to communicate with clients and act upon their instructions. There is no doubt that such behaviour caused serious anxiety, frustration and stress to clients as well as direct and indirect additional costs. In addition, such behaviour inevitably and deservedly brings the profession into disrepute and warrants sanctions sufficiently severe to reflect appropriate condemnation and send the clearest message to the legal profession that such conduct will not be tolerated.
4. His Honour Judge Ross (as he then was) observed in Legal Services Commissioner v Brott:[19]

The concept of general deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence. Related to general deterrence is the proposition that in deciding an appropriate penalty the Tribunal may have regard to the effect which its order will have on the understanding, in the profession and amongst the public, of the standard of behaviour required of solicitors.

1. The Tribunal also accepts that denunciation is relevant in the circumstances where the misconduct occurred over a protracted period and was not explained by any substantive surrounding circumstances. Furthermore, to the date of the hearing, there was continuing non-complying conduct.
2. The Respondent seeks to attribute his misconduct largely to a confluence of personal circumstances and consequent inability to cope.
3. In the Tribunal's view, the Respondent has not presented any compelling evidence which goes to either explaining or excusing his conduct. In particular, the Tribunal notes the following:
   • (a) While Ms Little Psychologist assessed the Respondent with mild/moderate depression in June 2012, there is no more recent assessment reported and no corroborative evidence as to his mental state between 2000 and mid-2012;
   • (b) Respondent's Counsel referred to the development of a 'psychological block' which effectively paralysed the Respondent from handling even simple tasks. However, there is no such assessment or characterisation of the Respondent's behaviour having been made by any relevant health professional. The Tribunal rejects such characterisation in the circumstances; and
   • (c) The Respondent has described personal disruptions: marital conflict and breakdown; death of one parent and serious illness of another; which are not uncommon events of a kind likely to affect most busy professionals at some stage. Without seeking to minimise the upset and distress which these events occasioned to the Respondent, they do not constitute exceptional circumstances such as to provide an acceptable excuse or explanation for his conduct. The circumstances, as disclosed, do not amount to a serious mental impairment;[20] or significant personal tragedy;[21] nor other circumstances which made it so difficult or impossible for the Respondent to have complied with his obligations. As a principal in a law practice which comprised two other partners and employee solicitors, he had other resources available to him from whom he could have sought appropriate assistance.
4. The Tribunal accepts that the Respondent engaged in a repetitive failure of his professional obligations. The failure consisted of three distinct parts:
   • (a) First, his failure to properly and appropriately act upon the instructions of various clients; together with his persistent failure to communicate with each client;
   • (b) Secondly, his failure to respond to the Applicant's enquiries, which further compounded the respective complainants' perceived grievance; and
   • (c) Thirdly, his reckless failure to comply with the undertaking given to the Applicant.

1. Respondent's Counsel submitted to the effect that if the Respondent's practising certificate were suspended for any period, he would be unable to support his family. While the Tribunal is entitled to take into account such factors in determining whether or not to suspend a practising certificate,[22] the Tribunal notes that the Respondent did not provide any information as to his current financial affairs; his capacity to draw upon financial resources; the financial circumstances of his ex-wife; or his capacity to derive income other than as a practising solicitor.
2. In the Tribunal's view, the Respondent's loss of employment as a solicitor, during any period of suspension, is a necessary consequence of an appropriate sanction.

1. The Tribunal accepts, consistent with sentencing principles generally, that a guilty plea of itself is usually evidence of some remorse and carries with it the added advantage of saving the Tribunal and the Applicant the expense of a contested hearing.
2. The Tribunal further accepts, that in defending Charge 5, the Respondent did acknowledge that his conduct amounted to unsatisfactory professional conduct, which he sought to plead to in the alternative. The Respondent otherwise admitted the facts as alleged.

1. As previously indicated, the Respondent did not seek to rely upon any personal or professional references which might have assisted the Tribunal in determining his current capacity to manage a heavy workload under stress; and whether the Respondent has indeed identified and implemented work strategies directed at improving client communications.

1. Counsel for the Applicant submitted that appropriate sanctions in the circumstances of this case should include:
   • (a) Suspension of the Respondent's practising certificate for a period of 6 to 9 months;
   • (b) At the expiration of the suspension, the Respondent shall be entitled to an employee practising certificate only, for a period of at least 12 months;
   • (c) That the information requested of the Applicant under s 4.4.11 be provided within 14 days; and
   • (d) Costs as agreed.
2. Counsel for the Respondent submitted that suspending the Respondent's practising certificate would be an overreaction where more specific sanctions could be imposed which would still satisfy the public interest. In particular, Counsel submitted that the following sanctions would be appropriate:
   • (a) a fine;
   • (b) conditions attaching to the practising certificate, which include that the Respondent be subject to supervision and monitoring by an approved mentor;
   • (c) a requirement that the outstanding information previously requested under s 4.4.11 be provided within a specified period; and
   • (d) costs;
   • (e) Counsel further contended that, for a professional person, a reprimand has the potential for serious adverse implications.[23]
3. For reasons already noted above, the Tribunal does not accept that the sanctions recommended by Respondent's Counsel adequately reflect the seriousness of the Respondent's misconduct.

1. After taking all circumstances into account the Tribunal has concluded that a reprimand, and suspension of the Respondent's practising certificate is warranted, together with an additional condition, as recommended, requiring that the Respondent be entitled to practise under an employee practising certificate only, for a period of 12 months at the expiration of the suspension. The period of suspension will be 9 months.
2. In reaching this determination, the Tribunal has had particular regard to:
   • (a) the serious nature of the charged conduct;
   • (b) the length of the period over which such conduct continued;
   • (c) the number of clients who have been affected by the professional misconduct or who have still not had their complaints addressed;
   • (d) the absence of any significant extenuating circumstances;
   • (e) the failure or refusal of the Respondent to provide answers to legitimate enquiries made by the Applicant;
   • (f) the Respondent's continuing non-complying conduct in relation to such enquiries;
   • (g) the Respondent's prior misconduct, involving a number of clients over an extended period and involving similar misconduct;
   • (h) the absence of any compelling evidence as to the Respondent's current capacity either to manage a heavy workload or implement appropriate strategies and procedures to communicate with clients; and
   • (i) the significant objectives of general deterrence; and maintaining public confidence in the performance of legal practice by a licensed practitioner.

1. Clause 46D of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides that:

(2) The Tribunal must make an order requiring an Australian legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including the costs of the Commissioner and the complainant (if any)) unless the Tribunal is satisfied that exceptional circumstances exist.

1. The parties have agreed that the Respondent pay the Applicant's costs fixed at $11,000, with a stay upon payment of 28 days.
2. Final orders are made herein.

1. On 24 September 2010, the Commissioner received a complaint from Ms Janet Hanslow[24] (the Hanslow complaint). The nature of the Hanslow complaint was, amongst other things, that there had been:
   • (a) delay and poor quality work by the Respondent on a matter; and
   • (b) delay in relation the finalisation of the estate of Ms Hanslow's cousin, Ms Virtue.
2. Ms Hanslow first instructed the Respondent on 29 April 2004, in relation to alleged thefts from Ms Virtue (the Hanslow matter).
3. At all material times, the Respondent was the practitioner responsible for the conduct of the Hanslow matter.
4. In or about April 2004, the Respondent advised Ms Hanslow to make a complaint to the Victoria Police in relation to the alleged thefts from Ms Virtue.
5. On or about 7 February 2005, Ms Hanslow contacted the Respondent and instructed the Respondent to ascertain the progress made by the Victoria Police in relation to the investigation of the alleged thefts.
6. Despite the instruction in the previous paragraph, the Respondent did not write to the Victoria Police until 15 April 2005.
7. Ms Hanslow attempted to contact the Respondent, without success or response as follows:
   • (a) by letter on 24 February 2005;
   • (b) by telephone on 7 March 2005; and
   • (c) by telephone and email on 18 March 2005.
8. On 19 May 2005:
   • (a) the Respondent advised Ms Hanslow that as the Victoria Police investigation was taking a considerable time, counsel should be briefed; and
   • (b) Ms Hanslow instructed the Respondent to brief counsel to advise.
9. Between 19 May 2005 and 25 August 2005:
   • (a) Ms Hanslow attempted to contact the Respondent without success or response as follows:
     • (i) 3 times by email, including on 15 August 2005; and
     • (ii) 2 telephone calls;
   • (b) the Respondent failed to brief counsel to advise.

1. On or about 27 August 2005, Ms Hanslow wrote a letter of complaint addressed to the Senior Partner at Henderson & Ball in relation to the Hanslow matter.[25] Ms Hanslow did not receive a response to this letter.
2. At a meeting on or about 29 September 2005:
   • (a) Ms Hanslow instructed the Respondent to send a letter to the Victoria Police outlining matters Ms Hanslow wished to see investigated by the police; and
   • (b) the Respondent told Ms Hanslow that he had not contacted counsel as instructed on 19 May 2005, but would do so.
3. Despite the instruction and statement in the preceding paragraph, the Respondent:
   • (a) did not write to Victoria Police as he was instructed to do; and
   • (b) he did not contact counsel.
4. On or about 30 November 2005:

(a) the Respondent contacted Ms Hanslow and advised her that:

(i) the Victoria Police would not lay criminal charges in respect to the alleged thefts; and

(ii) he would contact counsel to advise or draw proceedings immediately.

(b) Ms Hanslow instructed the Respondent to brief counsel to advise or draw proceedings immediately.

1. Despite the instruction given on 30 November 2005, the Respondent did not instruct counsel until on or about April 2006.
2. On or about 16 March 2006, Ms Hanslow attempted to contact the Respondent but was unable to do so despite a number of telephone calls and emails.
3. On 11 April 2006, Ms Hanslow wrote a further letter of complaint to the Respondent in relation to the Hanslow matter.[26]
4. On 21 April 2006, the Respondent wrote to Ms Hanslow.[27] The letter stated:

Your reference to the poor service you have received is warranted, and we offer our genuine and sincere apologies. We will ensure that you do not suffer such service in the future and undertake to respond to all telephone messages and emails within 24 hours ...; and

counsel had been asked to provide written advice within seven days.

1. On 2 May 2006, Ms Hanslow:
   • (a) received from the Respondent advice from counsel. Further investigations to progress the Hanslow matter were recommended by counsel, including obtaining Ms Virtue's medical records; and
   • (b) instructed the Respondent to undertake these investigations.
2. The Respondent obtained Ms Virtue's medical records in August 2006.
3. On 16 March 2007:
   • (a) Ms Hanslow contacted the Respondent to ascertain progress with the Hanslow matter; and
   • (b) The Respondent told her there had been delays on the part of the Victoria Police and that he would contact counsel again.
4. Despite the advice in the previous paragraph, the Respondent did not contact counsel.
5. On 26 June 2007, Ms Hanslow contacted the Respondent to ascertain progress with the Hanslow matter. The Respondent again told her he would contact counsel.
6. On or about 19 July 2007, the Respondent caused proceedings in the Supreme Court of Victoria to be issued in relation to the Hanslow matter (the proceedings).
7. In mid-August 2008**,** the defendants issued interrogatories of the plaintiff (the interrogatories).
8. On or about 16 September 2008, at a directions hearing in the proceedings, a timetable was set for the completion of the answers to the interrogatories by 14 October 2008, subsequently extended until 2 December 2008.
9. At a meeting on or about 16 October 2008, the Respondent told Ms Hanslow that she would hear from him in relation to the interrogatories at the end of the following week.
10. Despite the advice in the previous paragraph, the Respondent did not contact Ms Hanslow until 9 February 2009.
11. The Respondent did not cause answers to the interrogatories to be drafted.
12. On or about 3 January 2009, Ms Virtue died.
13. Ms Hanslow attempted to contact the Respondent four times by telephone in or about January 2009 and early February 2009 however none of these calls were returned.
14. On or about 9 February 2009, the Respondent told Ms Hanslow that counsel had not yet completed answers to the interrogatories.
15. On 24 March 2009, the Respondent wrote to Ms Hanslow[28] and:
    • (a) advised that there was to be a hearing in the proceedings on 25 March 2009 so that:
      • (i) the delay on the part of the plaintiff could be explained; and
      • (ii) the Court could determine if the Respondent or Ms Virtue's estate ought to bear the costs occasioned by the delay; and
    • (b) invited Ms Hanslow to appear or be separately represented if she was of the view that the Respondent, rather than Ms Virtue's estate ought to pay those costs.
16. Because the Respondent's 24 March 2009 letter was sent the day before the hearing on 25 March 2009, Ms Hanslow was unable to appear or be otherwise represented at the hearing.
17. In early April 2009, Ms Hanslow telephoned the Respondent and was told that on 25 March 2009, the defendants in the proceedings had been awarded an amount of costs against Ms Virtue's estate because the answers to the interrogatories were late.
18. The proceedings were settled at a further mediation on 22 May 2009 involving, amongst other things:
    • (a) a payment of $50,000 by the defendants by 13 August 2009; and
    • (b) a release of costs orders in the proceedings (the settlement).
19. On or about 13 August 2009, the defendants in the proceedings paid only $45,371.90 of the $50,000 agreed in the settlement.
20. In or about September 2009, Ms Hanslow attempted to contact the Respondent 3 times by telephone to enquire why the entire settlement sum had not been paid. The Respondent did not return the calls.
21. On 1 December 2009, having ascertained from a trust statement that the entire settlement sum had not been paid, Ms Hanslow emailed the Respondent to enquire why.[29]
22. On 2 December 2009, the Respondent told Ms Hanslow that an amount had been withheld by the defendants in respect to the costs awarded on 25 March 2009 due to the late answers to the interrogatories.[30]
23. On or about 20 April 2010, the Respondent prepared a draft statement of proposed distribution of Ms Virtue's estate. This proposed distribution statement contained many errors. These errors were repeated in a further letter from the Respondent of 3 May 2010.[31]
24. On 13 May 2010 and 29 August 2010, Ms Hanslow wrote letters of complaint to the Respondent.[32] The Respondent did not reply to these letters.
25. Ms Virtue's estate remains unfinalised as at the date of this Application.
26. The Hanslow complaint was published to the Respondent by the Commissioner on 12 January 2011.[33]
27. There was delay on the part of the Respondent responding to the Hanslow complaint from January 2011 to 31 March 2011 and a number of attempts were made by the Commissioner's staff to prompt a response.

(a) Telephone calls on 14 February 2011, 16 February 2011, 15 March 2011, 28 March 2011 (twice) and 29 March 2011; and

1. The Respondent wrote to the Commissioner on 31 March 2011.[34]
2. The Commissioner wrote to the Respondent on 10 May 2011.[35]
3. There was delay on the part of the Respondent responding to the Commissioner's 10 May 2011 letter, until 29 July 2011 and a number of attempts were made by the Commissioner's staff to prompt a response:

(b) Telephone calls on 13 July 2011, 26 July 2011; and

1. A further response was received from the Respondent on 29 July 2011.[36]
2. On 9 August 2011, the Commissioner wrote to the Respondent and sought further information.[37] The Respondent did not reply to this letter, despite a reminder on 26 October 2011.
3. On 27 March 2012, the Commissioner wrote to the Respondent seeking any submissions or material to be taken into consideration before a decision is made under s 4.4.13 of the Act in relation to the Hanslow complaint.[38] No response was received to this letter.

1. On or about 18 February 2010, the Commissioner received a complaint from Ms Virginia Tregonning (Ms Tregonning) on behalf of herself and her sisters Ms Geniene Storer and Ms Fiona Reed (the Tregonning complaint).[39]
2. The Tregonning complaint alleged, amongst other things:
   • (a) delay by the Respondent in finalising the estate of Ms Tregonning's late brother, Mr Chapman (the Chapman estate);
   • (b) poor service in relation to the Chapman estate.
3. Mr Chapman died intestate on 22 May 2007. The Respondent was instructed to act in respect of the Chapman estate in May 2007.
4. At all material times the Respondent was the practitioner responsible for the conduct of the Chapman estate.
5. The Respondent did not communicate with Ms Tregonning at all in respect of the Chapman estate from May 2007 to July 2009, apart from a meeting held between Ms Tregonning, her sisters and the Respondent on 22 December 2008.
6. The Chapman estate was small and due to the size of the estate, letters of administration were not needed or applied for.
7. The required legal work in respect to the Chapman estate mostly involved seeking funds and proceeds of insurance policies held by various superannuation funds.
8. The relevant superannuation funds (the superannuation funds) were:
   • (a) MLC Limited;
   • (b) Mercantile Mutual Life;
   • (c) Just Super/Host Plus;
   • (d) Australian Super; and
   • (e) Tower Business Superannuation.
9. On or about 4 June 2007, the Firm wrote to the superannuation funds seeking details of insurance policies and steps required to obtain proceeds of policies. Responses from the superannuation funds were received promptly.
10. Between late June 2007 and October 2008**:**
    • (a) the superannuation funds sent the Firm a large number of letters pressing for details and forms to finalise any claims on behalf of the Chapman estate (the SF correspondence);
    • (b) there was no response to any of the SF correspondence; and
    • (c) no other work was completed in relation to the Chapman estate.
11. As a result of the delays in the Respondent responding to the SF correspondence, several of the superannuation funds treated monies owing to the Chapman estate as unclaimed and sent them to the Commissioner of Taxation as unclaimed funds.
12. During the latter half of 2008, Ms Tregonning telephoned the Respondent on at least a fortnightly basis to ascertain progress with the Chapman estate, but did not receive any response to her telephone calls.
13. The Respondent met with Ms Tregonning and her sisters on 22 December 2008. This meeting took place at Ms Tregonning's request. At this meeting the Respondent apologised for the delay and lack of communication that they had experienced to date.
14. On or about 16 March 2009:
    • (a) Ms Tregonning wrote a letter of complaint to the Respondent;[40]
    • (b) the Respondent did not respond to Ms Tregonning's letter; and
    • (c) the Respondent assigned Ms Nicola Knell to work on the Chapman estate.
15. Between March and July 2009, when Ms Knell was working on the Chapman estate, the matter proceeded without further delay.
16. On or about 22 July 2009, the Respondent assigned Ms Anna Richards to work on the Chapman estate.
17. In late 2009, work on the Chapman estate again ceased.
18. On or about 30 January 2010, Ms Tregonning wrote a letter of complaint to the Respondent.[41] The Respondent did not reply to Ms Tregonning's letter.
19. On 18 February 2010, Ms Tregonning lodged the Tregonning complaint with the Commissioner.
20. On or about 14 April 2010, the Commissioner delegated the investigation of the Tregonning complaint to the Law Institute of Victoria (LIV) pursuant to s 4.4.9 of the Act.
21. The Tregonning complaint was published to the Respondent by the LIV on 28 April 2010.[42]
22. On 25 May 2010, the Respondent responded to the Tregonning complaint stating, inter alia:
    • (a) The Respondent is extremely embarrassed about the handling of this matter, leading to the complaint;
    • (b) The Respondent took more time than was necessary to make the required enquiries of a particular superannuation fund;
    • (c) Eventually the Respondent handed the file to an employee solicitor to attend to, however, through staff changes, two more solicitors had become involved; and
    • (d) The Respondent would contact Ms Tregonning and her sisters personally to apologise and offer whatever assistance they might wish.[43]
23. The LIV wrote to the Respondent on 17 June 2010 and requested further information about the Tregonning complaint from the Respondent pursuant to s 4.4.11 of the Act.[44]
24. There were numerous instances of delay by the Respondent in responding to the questions posed by the LIV and the Commissioner pursuant to s 4.4.11 of the Act in respect to the Tregonning complaint, despite a number of attempts made by the Commissioner's staff and the LIV's staff to prompt a response:

(a) Telephone calls on 15 September 2010, 15 March 2011, 28 March 2011, 29 March 2011, 8 April 2011, 12 April 2011, 13 April 2011 (twice); and

(b) Letters on 14 July 2010, 3 August 2010, 15 October 2010, 1 March 2011 and 19 April 2011; and

(c) Emails on 15 September 2010, 30 September 2010 and 2 May 2011.

1. On 6 May 2011, the Respondent responded to the Tregonning complaint stating, amongst other things:
   • (a) the complaints made are accurate, except that the Respondent recalled some extra communication with the complainant and handing the matter to another staff member;
   • (b) the delay, inadequate communication and poor service were all as a result of workload, but the Respondent did not offer that as an excuse; and
   • (c) the Respondent had not spoken to the complainant since 2008, out of embarrassment, but still wished to offer her and her sisters a personal apology.[45]

1. On or about 19 May 2011, Ms Tregonning advised the Commissioner that she did not wish the Respondent to undertake any further work in respect to the Chapman estate.
2. On 6 October 2011, the Commissioner wrote to the Respondent seeking any submissions or material to be taken into consideration before a decision is made under s 4.4.13 of the Act in relation to the Tregonning complaint.[46] No response was received to this letter.

1. On or about 13 August 2007, the Commissioner received a complaint from a Mr Jamie Strauch (the Strauch complaint) in respect to the Respondent.[47]
2. On or about 23 March 2011, the Respondent gave an undertaking to the Commissioner that he would, within the following six months, complete six hours of compulsory professional development (CPD) in the areas of ethics and/or practice management in addition to his usual CPD requirements (the Undertaking):

The Undertaking was oral and given in the course of a telephone discussion on 23 March 2011 between the Respondent and Brylee Alexander and Shelley Lipe of the Commissioner's staff.

1. On 25 March 2011, the Commissioner wrote to the Respondent[48] and:
   • (a) reprimanded the Respondent in respect to the complaint;
   • (b) noted the Respondent's Undertaking; and
   • (c) asked for confirmation from the Respondent of his completion of the additional six CPD points by 25 September 2011.
2. On or about 2 March 2012, the Commissioner commenced an investigation under s 4.4.8 of the Act into the Respondent (the s 4.4.8 investigation) due to the Respondent's failure to confirm to the Commissioner that he had completed the required CPD.
3. On or about 2 March 2012, the Commissioner wrote to the Respondent and sought full details of further CPD training undertaken by the Respondent pursuant to the Undertaking.[49]
4. On 29 March 2012, the Respondent wrote to the Commissioner and purported to enclose details of CPD training undertaken 'for the current CPD year'.[50]
5. In the period from 25 March 2011 to 25 September 2011 the Respondent completed the following CPD training:

1. The Respondent undertook a total of two hours of relevant CPD within six months from 25 March 2011, rather than undertaking six additional hours required by the Undertaking.
2. In the period from 25 September 2011 until 29 March 2012 the Respondent completed a further three hours CPD training in substantive law.
3. The Commissioner wrote to the Respondent on 10 April 2012, and sought a proper response to the Commissioner's letter of 2 March 2012, failing which the Commissioner would assume that the Respondent conceded he had breached the Undertaking.[51] The Commissioner did not receive a response to this letter.
4. On 9 May 2012, the Commissioner wrote to the Respondent seeking any submissions or material to be taken into consideration before a decision is made under s 4.4.13 of the Act in relation to the s 4.4.8 investigation.[52] No response was received to this letter.

1. On 3 April 2012, the Applicant received a complaint from Mr Greg Lewis regarding the Respondent allegedly failing to adequately communicate with his client, failing to progress his client's matter, providing bad advice, and failing to place the proceeds of sale of the deceased's property into an interest bearing account.[53]
2. Mr Kevin Power of the Applicant's office had telephone conversations with the Respondent regarding the complaint on 17 April 2012, 18 April 2012, 21 May 2012, and 26 June 2012.
3. This complaint, given reference number COM-12-0525, was a disciplinary complaint within the meaning of s 4.2.3 of the Act.
4. By letter dated 13 September 2012, the Applicant advised the Respondent that pursuant to s 4.4.11(1)(a) of the Act he was required to provide a full written explanation of his conduct with regard to the subject matter of the complaint within 21 days.[54]
5. The Respondent failed to respond.
6. By letter dated 4 October 2012, the Applicant wrote to the Respondent again requesting his written response by 22 October 2012 and advising that failure to do so might result in the Applicant commencing proceedings in the Tribunal.[55]
7. The Respondent failed to respond.
8. An Australia Post Delivery Confirmation Advice Receipt 494790213014 shows that the Respondent received the Applicant's letter referred to in paragraph 6 above on 8 October 2012.[56]
9. The Respondent failed to respond.
10. By letter dated 25 October 2012, the Applicant advised the Respondent that he would be applying to the Tribunal for an order under Division 4 of the Act in respect of the Respondent's failure to comply with the Applicant's request made under s 4.4.11(1)(a) of the Act.[57]
11. An Australia Post Delivery Confirmation Advice Receipt 494790223013 shows that the Respondent received the Applicant's letter referred to in paragraph 12 above on 29 October 2012.[58]
12. As at the date of making this Application for Order, the Respondent has:
    • (a) failed to provide the Applicant with a full written explanation of his conduct; and
    • (b) failed to respond to the Applicant's letters referred to in paragraphs 6, 8, and 12 above.

1. On 10 August 2012, the Applicant received a complaint from Ms Sue Stante of Choice Conveyancing regarding the Respondent allegedly failing to remove two registered covenants prior to the settlement of a property at lot 30 Briody Drive, Torquay, Victoria.[59]
2. This complaint, given reference number COM-12-1316, was a disciplinary complaint within the meaning of s 4.2.3 of the Act.
3. Between August and September 2012 there was an attempt to resolve the complaint through the Applicant's rapid resolution team, which proved unsuccessful.
4. By letter dated 1 November 2012, the Applicant advised the Respondent that pursuant to s 4.4.11(1)(a) of the Act he was required to provide a full written explanation of his conduct with regard to the subject matter of the complaint within 21 days.[60]
5. The Respondent failed to respond.
6. By letter dated 26 November 2012, the Applicant wrote to the Respondent again requesting his written response by 14 December 2012 and advising him that failure to do so might result in the Applicant commencing proceedings in the Tribunal.[61]
7. An Australia Post Delivery Confirmation Advice Receipt 494790236013 shows that the Respondent received the Applicant's letter referred to in paragraph 8 above on 27 November 2012.[62]
8. The Respondent failed to respond.
9. By letter dated 21 January 2013, the Applicant advised the Respondent that he would be applying to the Tribunal for an order under Division 4 of the Act in respect of the Respondent's failure to comply with the Applicant's request made under ss 4.4.11(a) and (b) of the Act.[63]
10. As at the date of making this Application for Order, the Respondent has:
    • (a) failed to provide the Applicant with a full written explanation of his conduct; and
    • (b) failed to respond to the Applicant's letters referred to in paragraphs 6, 8, and 11 above.

1. On 27 September 2012, the Applicant received a complaint from Mr Leo Stella regarding the Respondent allegedly failing to finalise a property matter and failing to communicate with his clients.[64]
2. This complaint, given reference number COM-12-1616, was a disciplinary complaint within the meaning of s 4.2.3 of the Act.
3. By letter dated 2 October 2012, the Applicant advised the Respondent that pursuant to s 4.4.11(1)(a) of the Act he was required to provide a full written explanation of his conduct with regard to the subject matter of the complaint within 21 days.[65]
4. The Respondent failed to respond.
5. By letter dated 25 October 2012, the Applicant wrote to the Respondent again requesting his written response by 12 November 2012 and advising that failure to do so might result in the Applicant commencing proceedings in the Tribunal.[66]
6. By letter dated 12 November 2012, the Respondent provided a response.[67]
7. By letter dated 27 November 2012, the Applicant requested further information pursuant to s 4.4.11(1)(b) of the Act.[68]
8. The Respondent failed to respond.
9. By letter dated 21 December 2012, the Applicant wrote to the Respondent again requesting his written response by 18 January 2013 and advising that failure to do so might result in the Applicant commencing proceedings in the Tribunal.[69] (Attachment 11)
10. An Australian Post Delivery Confirmation Advice Receipt 494790502019 shows that the Respondent received the Applicant's letter referred to in paragraph 21 above on 7 January 2013.[70]
11. The Respondent failed to respond.
12. By letter dated 21 January 2012, the Applicant advised the Respondent that he would be applying to the Tribunal for an order under Division 4 of the Act in respect of the Respondent's failure to comply with the Applicant's request made under s 4.4.11(b) of the Act.[71]
13. As at the date of making this Application for Order, the Respondent has:
    • (a) failed to comply with the Applicant's request for further information pursuant to s 4.4.11(1)(b) of the Act; and
    • (b) failed to respond to the Applicant's letters referred to in paragraphs 19, 21 and 24 above.

Respondent first instructed in respect to the Hanslow matter.

Application [9] and notice to admit (NTA) [3].

Hanslow instructs Respondent to write to Victoria Police.

Respondent acts on instruction of 7 February and writes to Victoria Police.

Respondent instructs counsel in response to instruction to do so given on 19 May 2005.

Andrew Chapman (Tregonning's sister) died intestate.

Respondent instructed to act in the Chapman estate by Tregonning and her sisters.

Respondent writes to Superannuation Fund seeking details of insurance policies.

Interrogatories issued in proceedings issued in relation to Hanslow matter for examination of Hanslow.

Respondent had not yet completed draft answers to interrogatories.

Defendants in the Hanslow proceedings paid part of the settlement moneys.

Respondent sends trust statement in respect to estate disclosing only part of settlement moneys paid on 13 August 2009.

Application [58] and Annexure 17 to J117 and NTA [67].

Respondent prepared draft statement of proposed distribution of Ms Virtue's estate.

Respondent gives undertaking to Commissioner to complete six hours of CPD in addition to usual requirements.

Respondent completes only two hours relevant CPD training rather than six hours required by undertaking.

Ms Tregonning advised Commissioner to not wish the Respondent to undertake any further work in respect to Chapman estate.

Respondent required to provide full written explanation pursuant to 4.4.11(1)(a) within 21 days - no response.

LSC requires full explanation from respondent pursuant to 4.4.11(1)(a) within 21 days - no response.

LSC again requests response from respondent by 22 October 2012 otherwise proceedings may be issued - no response.

LSC advises respondent will be applying to Tribunal for an order.

LSC again requests written response by 12 November 2012 advising failure may lead to an application.

LSC advises respondent requires full written explanation pursuant to 4.4.11(1)(a) within 21 days - no response.

LSC again requests written response by 14 December 2012 and failure to respond may involve an application - no response.

LSC requests further information pursuant to 4.4.11(1)(b) within 21 days - no response.

LSC again requests response by 18 January 2013 otherwise an application may follow - no response.

LSC advises respondent he would apply to the Tribunal.

LSC advises Respondent would apply to the Tribunal.

[1] Paragraphs 33-35 of the Applicant's Notice to Admit.

[2] File No. VLR/98/1949; complaint by Wainwright and Okno.

[3] File No. VLR/01/169; name of complainant unavailable.

[4] File No. LOV/04/661; complainant Angela Jurkovic.

[5] File No. VLR/05/1567; complainant Donald Binks.

[6] Legal Services Commissioner v Burgess (Legal Practice) [2009] VCAT 463.

[7] File No. LSC/08/3831; complaint by Wayne and Wendy O'Connor.

[8] File No. LSC/07/4162; complaint by Jamie Strauch.

1. [9] The Act, which commenced on 1 January 2010, is based on the provisions of the Model Uniform Evidence Bill which is based on the Evidence Act 1995 _(_NSW) and Evidence Act 1995 (Cth) with amendments as recommended in Australian Law Reform Commission [ALRC] Report 102.

[10] [1938] HCA 34; at 361 & 362.

[11] [2009] VCAT 2080.

[15] T0225 of 2004, His Honour EJ Cullity QC (Deputy Chairperson), Mr P Shattock and Ms J Tyers members 24 February 2005.

[16] Legal Practice Act 1996 s 149 Practitioner or firm must provide information and documents.

[17] See Hannebery v Legal Ombudsman [1998] VSCA 142 at [22].

[18] Quinn v LIV [2007] VSCA 122 at [30]; see also [35].

[19] [2008] VCAT 2399 (24 November 2008).

[20] Cf LSC v Moore [2010] VCAT 742 where the respondent suffered acknowledged addictions to alcohol and gambling.

[21] Cf Legal Services Commissioner v Cain [2009] LPT 19 where the respondent had to cope with the death of his wife from cancer and care for his young children.

[22] See, e.g. Ha v Pharmacy Board of Victoria [2002] VSC 322 at [120]; applied in Legal Services Commissioner v Hession (Legal Practice) [2010] VCAT 1687 at [17].

[23] See, e.g., Legal Services Commissioner v Moore (Legal Practice) [2010] VCAT 742 at [44], citing Marks J in Peeke v The Medical Board of Victoria (unreported, Supreme Court of Victoria, 19 January 1994) at 6 and Medical Practitioners Board of Victoria v Swieca [2009] VCAT 419.

[32] Annexures 9 and 10 to the Application.