Legal Services Commissioner v Coldham & Ors (Legal Practice) [2012] VCAT 74

Within 14 days of this day the parties must bring in short minutes to give effect to these reasons.

Mr Brind Woinarski, QC and Ms Lisa Hannon of Counsel, instructed by the Legal Services Commissioner

Mr David Collins, SC and Mr Tim Scotter of Counsel, instructed by Tony Hargreaves and Partners, Lawyers

1. In these proceedings the applicant, Legal Services Commissioner charges that the three respondents who are the equity partners in the city law firm, Anderson Rice are guilty of professional misconduct at common law by reason of their firm's dealings with moneys obtained from its clients for disbursements made to third party service providers such as members of Counsel, expert providing reports for litigation purposes etc. The Commissioner brings two charges against each of the practitioners, though in substance there is but one charge relative to a single course of conduct. The charges are brought in this way that during the earlier period covered by the charges the legislation governing the legal profession, Victoria's Legal Practice Act 1996. For the later period the statute was the Legal Profession Act 2004.
2. The charges are as follows. For convenience we set out only the charges brought against Mr Brookes. The charges brought against the other two respondents, Mr Barton and Mr Coldham are in effectively identical terms.

(Payments received on or before 11 December 2005 - common law misconduct)

You are guilty of "professional misconduct" within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that you, a partner of the Firm, engaged or participated in a procedure designed to withhold payment of Disbursement Amounts received in the period 28 May 2004 to 11 December 2005, thereby systematically and, or particularly, persistently acting in gross breach of your professional duty to make prompt payment of third party fees incurred in the ordinary course of advising your clients, fees for the Firm had expressly sought and obtained payment from each relevant client.

(Payments received between 12 December 2005 and 19 June 2007 - common law misconduct)

You are guilty of "professional misconduct" within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that you, a partner of the Firm, engaged or participated in a procedure designed to withhold payment of Disbursement Amounts received in the period 12 December 2005 to 19 June 2007, thereby systematically and, or particularly, persistently acting in gross breach of your professional duty to make prompt payment of third party fees incurred in the ordinary course of advising your clients, fees for the Firm had expressly sought and obtained payment from each relevant client.

1. It will be seen that these charges to which the respondents have elected to plead guilty are based upon a statement of agreed facts which has been accepted by the Commissioner and by each respondent. That statement is as follows:
   1. The Respondent ('Brookes') at all material times was:

(a) an Australian legal practitioner within the meaning of the Legal Profession Act 2004 (Vic) ('Act'), alternatively a legal practitioner within the meaning of the Legal Practice Act 1996 (Vic) ('1996 Act'), having first been admitted to practice in 1975.

(a) a local legal practitioner within the meaning of the Act, alternatively a current practitioner within the meaning of the 1996 Act;

(c) the holder of a practising certificate issued subject to the following conditions:

(i) that he was authorised to receive trust money (as defined within the meaning of the Act, alternatively the 1996 Act); and

(ii) that he was authorised to engage in legal practice as a principal;

(d) carrying on practice from Level 10, 555 Lonsdale Street, Melbourne in the State of Victoria, as a principal of the law firm "Anderson Rice Lawyers" ('Firm'); and

(e) a legal practitioner experienced in the conduct of litigation and insurance matters.

1. On 18 June 2007, Noel H. Henman and Jolyon Dunn, inspectors appointed by the Legal Services Board pursuant to section 3.3.29 of the Act ('the Inspectors'), commenced an investigation within the meaning of Division 3 of the Act into the trust account of and records relating to trust money received by the Firm.
2. The Inspectors' investigation of the Firm's office account bank reconciliations for the periods ending 31 May 2007 and 30 June 2007 disclosed that office cheques totalling $541,690 had not been presented.
3. A significant number of the unpresented cheques pertained to money received by the Firm from its clients on account of unpaid third party disbursements, predominantly barristers' fees, and received in the period 28 May 2004 to 19 June 2007.
4. As at 30 June 2007, the Firm had in its possession 216 unsent office cheques addressed to third party service providers, such cheques having been drawn in the period 13 May 2005 to 19 June 2007 ('Relevant Period') and totalling $305,791.97 ('Unsent Cheques').
5. Annexed hereto and marked with the letter 'A' is a summary of the Unsent Cheques. Further particulars of the information set out in Annexure 'A' are described in paragraphs 21-41 hereof.
6. The Unsent Cheques had been prepared by accounting staff in the employ of the Firm on various dates during the course of the Relevant Period (as identified in Annexure 'A', in the column marked '15 - DATE OF CHEQUE TO SERVICE PROVIDER').
7. Each of the Unsent Cheques:

(a) had been retained by the Firm's accounting staff; and, or alternatively,

(b) had deliberately not been sent or delivered by the Firm's accounting staff to the payee of the cheque

1. At all relevant times, the Procedure was a matter within the knowledge of Brookes, Michael Russell Coldham and Philip Nunn Barton.
2. The records of the Firm identify Brookes as the partner responsible for the relevant client matter in relation to 104 of the 216 Unsent Cheques identified by the inspectors during the course of the investigation. Those 104 cheques are identified in Annexure 'A' in the column marked '7-PARTNER', in each row in which the initials 'DB' appear.
3. In respect of each of the Unsent Cheques described in Annexure 'A':

(a) the Unsent Cheque was drawn following the receipt by the Firm of a payment from or on account of a client of the Firm ('Payment');

(b) the Payment was made to the Firm by or on account of a client of the Firm, after the Firm had sent to the client an account (or tax invoice), seeking payment by the client of that account ('Tax Invoice');

(c) the said Tax Invoice in respect of which the Payment was made by the client to the Firm was described as including, or alternatively was for, an amount for disbursements incurred in the legal matter in which the Firm was acting for the client ordinarily in respect of a member of counsel, medical practitioner, other consultant or third party service provider ('Service Provider') ('Disbursement Amount');

(d) at the time the Tax Invoice was prepared by the Firm, the Disbursement Amount owing to the Service Provider or Service Providers had not been paid by the Firm;

(e) at the time when the Payment was received by the Firm from the client, the Disbursement Amount owing to the third party service provider or third party service providers had not been paid by the Firm;

(f) the general practice of the Firm was that prior to the client making the Payment the Firm sent to the client a costs agreement and, where appropriate a disclosure statement substantially in the forms in Annexure 'F', no other relevant communications between the Firm and the client occurred;

(g) pursuant to the Procedure, each Payment was dealt with by accounting staff in the employ of the Firm in the following manner:

(i) in the majority of cases, the Payment was first deposited in the trust bank account maintained by the Firm ('Trust Account') and subsequently transferred from the Trust Account into the office bank account maintained by the Firm ('Office Account');

(ii) in all other cases, the Payment was first deposited into the Office Account;

(iii) at or about the time of the receipt of the Payment into the Office Account, a cheque was drawn on the Office Account in favour of the relevant third party for the Disbursement Amount;

(iv) the said cheque was retained by the Firm and was not sent or delivered to the third party payee of the said cheque;

(h) the Firm's Infinity accounting software ('Infinity') operated in the following way:

(i) a Service Provider's fee could not be paid directly out of the Trust Account;

(ii) in order to pay a Service Provider's fee, it was first necessary to draw a cheque payable to the Service Provider on the Office Account; and

(iii) once the cheque had been drawn on the Office Account, the Infinity software permitted the Firm to [either direct deposit into the Office Account or] transfer from the Trust Account to the Office Account the funds necessary to meet the Office Account cheque addressed to the Service Provider;

(i) Brookes knew of the Procedure and acquiesced in the Firm's accounting staff dealing with the Payment in the manner set out in paragraph 11(g) hereof;

(j) the value of the Disbursement Amount included in the Payment received by the Firm was thereby applied to reduce the level of indebtedness of the Firm's overdraft account.

Once again we have produced the statement of agreed facts relative only to Mr Brookes. The facts as agreed relative to Mr Barton and Mr Coldham are not materially different.

1. Again, the parties were agreed that the factual situation here should be analysed in accordance with the 'agreed position'.
   1. It is agreed between the parties that the charges do not allege that the funds were trust moneys or that there was a breach of fiduciary duty. Such issues are not before the Tribunal .
   2. The Commissioner has conceded for the purposes of this hearing that the relevant Service Providers (as that term is defined in the agreed statements of fact) were engaged directly by the firm and not in the way that created any contractual obligation as between any client of the Firm and a Service Provider.
2. The 'agreed position' represents an important progression of these proceedings. When initially launched they focussed principally upon a series of allegations of misconduct by reference to alleged breaches of various statutes and rules dealing with the treatment of trust money. The position of the respondents was that in the circumstances described the amounts paid by the clients to cover disbursements ought not to be characterised as 'trust money'. Eventually the Commissioner elected to concentrate his charges on the broader proposition that it was professional misconduct for the members of the firm to get in moneys to meet disbursements and indefinitely to defer the payment of the disbursements for which they had been put in funds whether the moneys in question were trust moneys or not. Therefore, whilst the applicant Commissioner does not concede that the moneys in question were not properly characterised as 'trust funds' for the myriad of statutory and subordinate rules as to the treatment by legal practitioners of trust money, these proceedings must be determined without consideration of any allegation that the moneys were trust moneys or that their treatment entailed breach by the respondents of any fiduciary duty.

1. Mr Woinarski QC and Ms Hannon who appeared for the applicant Commissioner said that the respondents by their guilty plea admitted that they had:

Systematically and persistently acting in gross breach of their professional duty to make prompt payment of ... fees in circumstances where [their] firm had expressly sought and obtained from each relevant client payment in respect of each such fee.

1. The charges to which guilty pleas had been made related he said to 216 separate payments involving sums totalling $305,791.97. The respondents were the responsible party for the relevant file 62 in the case of Mr Coldham; 104 for Mr Brookes and 38 for Mr Barton. They said the material showed that 52 of the cheques were deposited directly into the firm's office bank account, 164 deposited in the trust account and transferred to the office account. In all cases cheques payable to the relevant third party service providers were drawn but retained unsent by the firm. The basis for the determination of this proceeding is that in all cases it was the firm which was liable as principal to the third party providers and not the client. The firm's accounting system required the drawing of the office account cheque to enable the funds to be withdrawn from the trust account. They said:

In some cases the unsent cheques became stale and were reissued by the firm, but were nevertheless retained by the firm.

1. They said the unsent cheques were discovered by trust account inspectors appointed by the Legal Services Board carrying out a routine inspection commencing 18 June 2007.
2. Mr Woinarski and Ms Hannon submitted that the Tribunal should make orders under Section 4.4.17(b) of the Legal Profession Act 2004 suspending the respondents' practising certificates for a period of 12 months. They referred to and relied upon a statement by Jenkinson J as a member of Full Court of the Federal Court of Australia in Robb and Rees v Law Society of the ACT (1996) 72 FCR 225, 246D-E where His Honour said:

I think that undue delay in paying those entitled to moneys, the only claim of the appellants' firm to possession of which derives from that entitlement, may properly be characterised as professional misconduct, without recourse to conceptions of trust, fiduciary duty or other legal obligation. Simple honesty requires a professional man to abstain from keeping what is due to another, except for good cause. The convenience of the professional man is not good cause.

1. They submitted that whilst the orders which the Tribunal might make were primarily to protect society, given that general deterrence was amongst the objectives of the Legal Profession Act it was necessary for the disposition to have a punitive effect. The referred to Quinn v Law Institute of Victoria [2007] VSCA 122, [28] - [31] per Maxwell P.
2. They conceded that specific deterrence was not 'an overriding factor' in the present case. They said the Tribunal should consider the effect that its orders would have on the understanding both within the legal profession and the affected members of the public of the standard of behaviour required of legal practitioners. They said the normal response to conduct of this sort was 'either temporary or permanent interruption with the right to practice'. They referred to Re Farman (1883) 18 LJ 352.
3. They noted that these principles were adopted by Hart AJ in Re M A Solicitor [1938] St R Qd 452, 461-2.
4. Next they referred to a decision of the New South Wales Legal Services Commission. In the matter of Elija Danilo Vickovich (1997) 1 LSTR 32. They conceded that the practitioner was also held to be guilty of other misconduct but the Tribunal ordered that his practising certificate be cancelled and that he be struck off the roll. They said a similar order was made the Full Court of the Supreme Court of South Australia in Legal Practitioners Conduct Board v Fletcher [2005] SASC 282.
5. Next they referred to three decisions of this Tribunal and its immediate predecessor the Legal Profession Tribunal. The first a decision of the Legal Profession Tribunal (Full Tribunal), Victorian Lawyers RPA Limited v Mills Oakley Lawyers Pty Ltd (31 October 2003) where they said moneys were collected on account of specific disbursements totalling $327,667.42 (an amount likely exceeding the sum of money involved here). The moneys were held for a maximum of seven months and there were some 175 unpresented cheques. Next they referred to Law Institute of Victoria v Singer and Parsons (10 November 2005) a decision of the same Tribunal which involved 75 unpresented cheques with a total face value of $126,161.50 withheld for up to 16 months. Finally they referred to a decision of this Tribunal Legal Services Commissioner v McCristal [2011] VCAT 231 involving 42 unpresented cheques with a total face value of $45,036 with the oldest cheque being aged to 16 months.
6. They said there were no exceptional circumstances in this case which would justify this Tribunal from refraining to suspend the practitioners' practising certificate. They noted that whilst the practitioners had co-operated with the investigation and had not denied the primary or underlying facts their decision to plead to the present charges:

Came more than three years after the commencement of the original investigation, and some eight months after the filing and service of the original application for orders against each respondent [that is in July 2011].

1. They referred to the long experience of all three practitioners extending for more than 30 years. The conduct here was, they submitted, a long-term strategy not as was the case in the Mills Oakley matter, a response to a short-term crisis. They said that had these matters not been discovered by routine inspection 'it can ... be anticipated that the conduct would have continued indefinitely'. They noted the wrongfulness of this kind of practice had been publicised by the Legal Profession Tribunal's determination in the Mills Oakley matter on 31 October 2003 and the even more widely publicised determination of 11 November 2005 relative to Mr Singer and Mr Parsons. This latter determination received widespread publicity in the general media because Mr Singer had served as a Deputy Lord Mayor of the City of Melbourne. They said 'in those circumstances, the failure of the respondent to recognise their own conduct as wrongful is inexplicable.'
2. Finally they sought the respondent's pay the applicant's costs of these proceedings in accordance with Clause 46(d) Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.

1. Mr Collins SC and Mr Scotter on behalf of the respondents said their clients recognised that their actions had been wrongful. They accepted the statement of the law by Jenkinson J in the matter of Rob and Rees quoted and relied upon by Mr Woinarski and Ms Hannon. They made this concession despite noting that His Honour did not form part of the majority in the Full Federal Court determination and his statement of the law was not part of the ratio of Rob and Rees' case.
2. They stressed that since the charges brought against their clients now and to which their clients pleaded involved neither infractions in the treatment of trust moneys nor any allegation of breach of fiduciary duty it would be wrong simply to treat the various court and Tribunal decisions referred to by the Commissioner as directly applicable to the situation of these respondents.
3. They noted for instance in the case of Farman that it concerned Counsel's fees collected by a solicitor from his client in 1883 in England. At that time counsel had no entitlement to sue for and recover fees. The fee was payable only as a matter of honour between solicitor and counsel. Therefore it would be wrong simply to regard the determination of a suspension of 12 months imposed in that case as appropriately applicable here.
4. Similarly they said in the decision of the Full Court of the Supreme Court of Queensland in Re M the solicitor involved not merely detained the moneys collected on account of disbursements but actually misappropriated them. They referred to the passage at [1938] St R Qd 454, 456 where Webb J referred to the potential liability of the solicitor for theft contrary to the Queensland Criminal Code. Again therefore they submitted that the penalties imposed by the statutory committee and approved by the Full Court of suspension for three years should not be regarded as in some way applicable to the present case.
5. In Vickovich's case the practitioner not only detained the moneys collected on account but also made false and misleading statements to the Law Society and to clients. The solicitor was found to have breached the rules relative to trust funds. Again they said this decision did not provide a self guide for the disposition in the matter before us.
6. In Fletcher's case the Full Court of the Supreme Court made an order removing a practitioner's name from the roll but not based upon a particular finding of professional misconduct but rather based on a more general finding that the practitioner was not a fit and proper person. There were apart from the issue of the detention of moneys collected for disbursement, aggravating factors. At [17] the Court noted a failure by the practitioner to answer requests for information from the Conduct Board and a failure to honour an undertaking given to the Legal Practitioner's Disciplinary Tribunal. Again they noted that [24] a finding of a breach of the rules relative to trust moneys.
7. So far as the recent Victorian cases were concerned they submitted these cases provided no guide towards the disposition sought by the Commissioner. In the Mills Oakley case for instance, the firm or incorporated practice was fined $40,000 and the individual partners were fined $10,000. In the case of Singer and Parsons, Mr Singer was fined $10,000. Again the Tribunal said that the misconduct was serious 'serious in the extent to which it involves manipulation of the trust account'. Again they stressed there was no issue of breach of the rules relative to trust accounts. Finally in McCristal the matter was dealt with by a fine of $25,000 which was a more severe penalty than the Commissioner had sought. This was a reprimand and a fine of $20,000. Again, the Tribunal regarded the matter as very serious 'involving a misuse of trust money in a deliberate and calculated manner over an extended period' [35].
8. Next they took us to a long list of testimonials from a variety of referees including notably in the case of Mr Brookes, a generous testimonial from Professor Neil Rees, the Chairman of the Victorian Law Reform Commission. Other referees included members of counsel, officers of community organisations all of whom attested to the respondents' good name and previous good character and their generous work for charitable and community causes.
9. According to Mr Collins and Mr Scotter the element of delay should weigh heavily in favour of a more lenient disposition for the respondents. They noted that it was now almost four and a half years since the routine investigation brought these matters to light. Without seeking to attribute blame for the various delays which had postponed these matters coming to the Tribunal for final determination, they submitted that it was the very fact of delay rather than the cause of the delay which stood as a strong mitigating factor in favour of each of the respondents. They referred to the remarks of Maxwell P as a member of the Court of Appeal in R v Merrett, Piggott and Ferrari [2007] VSCA 1; (2007) 14 VR 392, 400 [34] where His Honour speaking in the context of sentencing in the criminal law said:

The significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. There is, of course, a strong public interest in criminal conduct being investigated and prosecuted as quickly as is reasonably practicable. But the absence of an explanation for the delay could not, by itself, justify any greater reduction in the sentence than would be made in a case where the delay was satisfactorily explained.

1. On the same page in the following paragraph [35] His Honour continued:

The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes 'a powerful mitigatory factor'. In particular, it focuses attention on issues of rehabilitation and fairness.

1. They said that with these matters 'hanging over their heads' the partners of Anderson Rice could not take action which would improve the firm's situation by for instance taking in younger equity partners or merging the practice with another firm.
2. They took us to evidence from Anderson Rice's accountant which showed that the firm had an overdraft with the Westpac Banking Corporation in the sum of $1.4m which the bank had demanded be re-financed with immediate and progressive reductions. This necessitated the sale of a valuable house in Brighton owned by Mrs Barton which had been the subject of a guarantee mortgage in favour of the bank. The entire proceeds of this valuable house would go to the bank, first, in the payment of an ordinary loan secured on it, presumably a loan which financed its acquisition with the large remaining equity of perhaps a million dollars taken entirely to reduce Anderson Rice's overdraft liability.
3. The three practitioners apart from one of whom who had a modest superannuation fund had no assets beyond personal affects and motor vehicles. The firm was subject to a payment arrangement with the Commissioner of Taxation for an amount exceeding $500,000 representing arrears in PAYE instalments and arrears of Goods and Services Tax liabilities.
4. The material to which they took us showed a collapse of the firm's profitability for the partners in recent years. This seems to have followed in exit of some partners a few years ago and also one may infer the consequences of the global financial crisis. More recently they said the profitability of the firm had recovered. They submitted that to make the orders sought by the Commissioner would put the firm out of business. This would be a tragedy for the three equity partners who were at a relatively late stage in their working lives and with findings of professional misconduct against them would find it extremely difficult to obtain alternate employment. There were 22 employees of the firm who would also be thrown out of work if these orders were made.
5. The fine and/or reprimand suggested by the respondent they said would provide reasonable prospects that the partners could rebuild the firm's fortune to their benefit and to the benefit of their employees.

1. Mr Woinarski and Ms Hannon in reply observed that the significance of delay in criminal sentencing focussed on issues of rehabilitation which were not really relevant here. They referred to R v ONA [2009] VSCA 146; (2009) 24 VR 197 [42] where Neave JA observed:

The primary mitigating effect of delay occurs when 'in the period of the delay the offender has taken significant steps towards rehabilitation'

Her Honour was referring to remarks of Vincent JA in R v Rowley [2007] VSCA 94 [32].

1. They observed that references to the loss of opportunities to admit new equity partners or merger opportunities foregone were merely speculative. There was no evidence of either of those things, in actuality as distinct from being mere hypothetical possibilities.

1. It will be seen that much was made on behalf of the respondents of the fact that the guilty plea to the two charges entailed no finding of breach of the rules with respect to trust moneys nor breach of fiduciary duty. Nevertheless the very concept of professional misconduct is indicative of wrongful conduct of the gravest kind. In this State the common law definition of professional misconduct occurs where a practitioner 'can be said to have been guilty of conduct which other solicitors in good repute would regard as disgraceful or dishonourable' Re A Solicitor [1960] VicRp 96; [1960] VR 617, 620 per Dean J. These respondents have engaged in disgraceful and dishonourable conduct upon their own admission. The fact that that conduct is not found to constitute a breach of trust, breach of the rules relative to the management of trust moneys or breach of fiduciary duty cannot alter the seriousness of what they have admitted.
2. We find for instance that the earliest of the detained cheques represented the proceeds of funds paid by the client to the firm on 28 May 2004. These moneys were detained indefinitely by the firm. The period of detention is such a long one in the case of those moneys that it might be thought to be an almost academic distinction to draw to speak on the one hand of funds being merely detained and contrasting that with the situation in some of the authorities relied on by the Commissioner where there was a final misappropriation.
3. This detention of funds was not a mistake, much less a response to a short-term 'cash flow crisis' as was the situation in the Mills Oakley case. It could not be said of these practitioners, veterans of over 30 years in practice as it was said of Mr McCristal that he was:

An inexperienced solicitor with no prior experience managing a legal office, in sole private practice in a country location, where he was apparently quickly overwhelmed by an extraordinary workload.

1. This was a deliberate and long-term strategy. We accept the submission put by the Commissioner that if it had not been detected it would have continued indefinitely. This case is more serious than any of the Victorian trio to which we will refer.
2. We accept that general deterrence is a major objective of determinations such as we are now required to make. Quinn v Law Institute of Victoria [2007] VSCA 122, [28] - [31]. One might think that the sanctions imposed in the cases of Mills Oakley Singer and McCristal demonstrate that dispositions falling short of cancellation or suspension of practising certificates have proven inadequate as to general deterrence.
3. Against this is urged the dire consequences which any suspension or cancellation would have on the applicant. The debt to the Commissioner of Taxation was one of the matters urged upon us. We find it difficult to regard this as a mitigating factor. This debt we infer was run up by the same underlying phenomenon which has led to the matter which has been brought before us, that is the unjustified conscription of moneys which were either paid or deducted on the basis that it would be remitted to the Commissioner of Taxation to be used as the firm's working capital. Here the firm conscripted money paid by its clients which should have been remitted to counsel and others for use as part of its working capital. We are sensible of the dire consequences for these respondents of making an order of suspension of their practising certificates. Nevertheless the sympathy which we feel for them in their unhappy circumstance whilst a relevant mitigating factor can only go so far. In this case in our view it cannot balance out the necessity to impose a relatively severe penalty to send an unmistakable message to the State's legal profession that this sort of conduct will not be tolerated and if detected will be met by the sternest measures. In saying this we are conscious of the undoubted fact that the jurisdiction which we exercise is for the protection of the public, though as the Court of Appeal noted in Quinn's case, that protection insofar as it requires considerations of general deterrence operates through measures which are partly punitive.
4. The situation of the respondents' firm as disclosed in the accounting evidence shows that even without any orders against these respondents it is precarious to say the least. The future of the firm independently of these proceedings is far from sure.
5. We agree with Mr Woinarski and Ms Hannon that the suggestion that in the period since these matters were detected the respondents have lost the opportunity to better their situation with mergers, admissions of new equity partners and so forth is at best speculative in the absence of any evidence whatsoever of any distinct opportunity which was available and was lost.
6. In our view the proper order is that each applicant has his practising certificate suspended for a period of nine months which is some 25% less than the period of suspension advocated by the Commissioner.

1. The parties were agreed that in the circumstances the respondents should bear the Commissioner's costs of these proceedings which have been globally agreed is $50,000. The result is that each of the three is liable for the Commissioner's costs in his proceeding fixed in the sum of $16,666.66.