1. The name of the applicant is amended by deleting "Victoria Faye Marles" and substituting "Michael McGarvie Acting."
2. The Tribunal finds the respondent guilty of professional misconduct pursuant to s 4.4.4(a) of the Legal Profession Act 2004 (the Act) in that he contravened s 4.4.11(1)(b) of the Act by failing to comply within the time allowed with a requirement made by the applicant that the respondent provide information and documents relating to the subject matter of a complaint lodged with the applicant.
3. The respondent is to pay a fine of $1500 to the Legal Services Board on or before 4 February 2010.
4. The respondent is to pay the applicant on or before 4 February 2010 his costs of the application fixed in the sum of $6000.

1. On 30 June 2009 the respondent was charged with professional misconduct. The charge reads as follows -

Professional misconduct within the meaning of section 4.4.4(a) of the Act (Legal Profession Act 2004) in that you contravened section 4.4.11(1)(b) of the Act by failing to properly comply at the required or at any time with the request of the Legal Services Commissioner, to provide the Legal Services Commissioner with the information and documents referred to in letters 6 October 2008, 29 January 2009, 10 March 2009, 27 March 2009, 15 May 2009 and 11 June 2009 regarding the disciplinary complaint made by Mr Alan Styles.

1. The parties have agreed on a set of orders which they both submit I should make and I in fact will make those orders but I will return to those in more detail afterwards. Clearly I must be satisfied that the orders which the parties seek are appropriate given the circumstances of this proceeding.
2. The facts upon which the applicant bases the charge are to be found in the document called "Application for Order" and I will summarise what the applicant has said in that document.
3. The respondent was first granted a legal practising employee's certificate on 17 March 1988 and he held such a certificate until 16 May 1988. I am not quite sure what happened after that time but it would appear that from 27 July 1995 to 9 February 1998 he again held an employee practising certificate. He held a principal practising certificate between 17 May 1989 to 25 October 1991 and 26 November 2004 to the present.
4. On 17 December 2007, the applicant received a complaint from an ex-client of the respondent, a Mr Alan Styles. The complaint was dated 13 December 2007.
5. The respondent was notified of this complaint on 25 June 2008 and he was afforded an opportunity to make submissions as to whether the complaint should be treated as a disciplinary complaint or not or whether the complaint should be summarily dismissed pursuant to s 4.2.10 of the Legal Profession Act 2004 (the Act).
6. Submissions were received by the applicant from the respondent and such submissions were dated 3 July 2008. After receiving those submissions, the applicant determined that the complaint should be dealt with as a disciplinary complaint. As a result, the complaint was referred to the Law Institute of Victoria.
7. By a letter of 6 October 2008, Ms Barrowclough from the Institute requested the respondent to answer questions and provide documents listed in the letter within 16 days. She also asked the respondent whether he wished his written submissions dated 3 July 2008 to be taken into account for those purposes.
8. On 24 October 2008, Ms Barrowclough rang the respondent and inquired as to why there was no response and the respondent said that he would provide his response by 27 October 2008.
9. By letter of 14 November 2008, Ms Barrowclough granted an extension of time to provide that response until 21 November 2008.
10. On 19 November 2008, Ms Barrowclough again rang the respondent and advised him that no response had been received. At that time, it is alleged that the respondent advised Ms Barrowclough that he did not want to respond due to threats made by the complainant. Ms Barrowclough then requested the applicant to provide a response.
11. In a letter dated 8 December 2008 by registered mail to the respondent, Ms Barrowclough advised the respondent as follows :

(a) your response to her requests by the letters referred to in paragraph 8 above had not been received;

(b) your failure to provide her with a full written explanation of your conduct was a breach of section 4.4.11(1)(a) of the Act;

(c) she required you to give this matter your urgent attention and provide her with a written explanation of your conduct within 16 days, following which she would recommend that you be referred to the Tribunal for disciplinary action.

1. On 6 January 2009, Ms Barrowclough again rang the respondent's office and the respondent was advised to provide a response by 9 January 2009.
2. By letter dated 7 January 2009, Ms Barrowclough referred to a telephone conversation of 6 January 2009 and noted that the respondent was to review the letter dated 6 October 2008 and provide a response by the end of the week.
3. The complaint was then referred back to the Legal Services Commissioner (who is the applicant in these proceedings) on 19 January 2009.
4. By letter dated 29 January 2009, the applicant required, pursuant to s 4.4.11(1)(b) of the Act that the respondent should provide information sought by the Institute in a letter of 6 October 2008 within 16 days.
5. On 10 March 2009, the applicant again required pursuant to s 4.4.11(1)(b) of the Act that the respondent should provide information sought by the Institute in a letter of 6 October 2008. The respondent was also informed that failure to answer would leave no alternative but that action would be commenced pursuant to s 4.4.13(2) of the Act.
6. By a letter dated 16 March 2009, the respondent enclosed a letter which bore the date of 23 October 2008 which apparently the applicant and the Law Institute alleged they had never previously seen.
7. By a letter dated 27 March 2009, the applicant advised the respondent that he did not address the questions that were required of him to address by the letters of 29 January 2009 and 10 March 2009, being the matters outlined in the letter from the Law Institute dated 6 October 2008. Again, the applicant informed the respondent that he should reply within 16 days, otherwise action would be taken.
8. By letter dated 14 May 2009, the applicant again requested the information sought by the Law Institute of Victoria's letter of 6 October 2008 to be provided.
9. On 14 May 2009, a Ms O'Shanassy of the applicant's office spoke to the respondent. The respondent advised Ms O'Shanassy that he had not received the letter and he would attend the applicant's office the following day and provide a response.
10. On 26 May 2009, Ms O'Shanassy from the applicant's office again spoke to the respondent and the respondent advised her that he had sent a response the previous day.
11. By letter of 21 May 2009, the respondent provided answers to some of the questions required but not all.
12. By letter of 11 June 2009, the applicant advised the respondent that the information that he had given was not adequate nor had he provided the documents requested.
13. Apparently, on 26 July 2009, the respondent did provide a further response and I infer the information was given in July.
14. So much for the applicant's case.
15. The respondent who has admitted the charges in this proceeding has said, through this counsel Mr Aizen in submissions, that his failure to provide a proper response was due to a lot of the difficulty that he was suffering as he did not have the file (ie the solicitor's file in the Styles' matter). The file in this matter was handed to the client and I understand it weighed approximately 80 kg and therefore it was very likely to have been a very thick file indeed. Mr Aizen said that as a result, the only documents that the respondent had to rely on to answer the matters were from emails and documents were still on his computer. Apparently, there was even some difficulty with the computer documents because the computers in the office had been changed.
16. The respondent made it known to the applicant on several occasions commencing in March 2008 that he was in considerable difficulty in answering the questions and providing the documents. However, he did his best to answer them somewhat belatedly. That response was not properly complete and it was not a proper answer. Mr Aizen pointed out, correctly, that it was not until the respondent employed an outside solicitor (by that I mean Mr Aizen's instructor) to answer these relevant questions and provide the documents that a satisfactory explanation was given.
17. It is now common ground between the parties that a satisfactory explanation has been given and the applicant is not seeking any orders in regard to that matter.
18. One has to feel considerable sympathy for the respondent in this matter in the sense that he did not have the usual facilities that a solicitor would have had to provide the required information, viz the client file which was a very large file indeed. However, as Mr Shaw who appeared for the applicant pointed out, when eventually the respondent did employ an independent solicitor, even without the client file, the questions were answered satisfactorily. Clearly, it would have been better if the respondent had done that in the first place. However, it is easy to understand why he took the course he did. I believe that to some extent the respondent could have been more diligent in answering a considerable amount of correspondence sooner and making a better effort.
19. Having made the findings which I have above, I have considered the orders which both parties proposed that I should make. Those orders are as follows :

That the respondent be found guilty of professional misconduct and as a result there be a fine of $1500; costs in the agreed sum of $6000 and there be a stay in the payment of costs and the payment of fine for 90 days to 4 February 2010.

1. In my view those orders are appropriate. In coming to that conclusion, I take into account that in 1990 and 1991 the applicant was found guilty of misconduct which matter started at the Solicitor's Board and went to the Supreme Court and he gave an undertaking that he will not practise as a barrister before 1 January 1996. There were other natters which are noted but the most recent matter is a decision of Senior Member Howell of this Tribunal dated 11 May 2009. In that proceeding, the respondent was found to be guilty of unsatisfactory professional conduct as defined by s 4.4.4(a) of the Act in that he contravened s 4.411(1)(a) of the Act by failing to comply with requirements made by the Legal Services Commissioner that he provide a full written explanation of his conduct in relation to the subject matter of a complaint lodged with the Commissioner. There were other orders in relation to that proceeding including a fine and payment of costs.
2. While the matter before Senior Member Howell was indeed an important matter, I do take into account that what the respondent says about that matter. It appears to have a similar genus to the matter which is before me. That is, apparently the complainant in the matter before the Senior Member was a friend of the complainant in the matter which is before me today and the complainant in the matter before me helped the complainant in the matter before Senior Member Howell to prepare his complaint. However, it must be emphasized that this proceeding, as the proceeding before Mr Howell, was not into whether the complaints made against Mr Horak were justified or not justified. The proceeding is and was in relation to whether the respondent has not done what he ought to have done and to respond in the way the Act requires. As I have said, in making such a finding, I will order that the fine and costs as referred to in the agreement between the parties be paid. I will make the order accordingly.