1. The respondent is found guilty of seven charges of professional misconduct and one charge of unsatisfactory conduct.

1. The respondent's practising certificate is cancelled, effective from 13 May 2014 and he is disqualified from being granted a local practising certificate until 13 May 2020.

1. Any practising certificate granted, for a period of six years thereafter, must be an employee practising certificate.

1. The Tribunal makes a recommendation to the Supreme Court of Victoria that the respondent's name be removed from the roll of local practitioners.

1. Unless, on or before 13 June 2014, any application to the contrary is made, the respondent shall pay the applicant's costs to be determined by the Costs Court if not agreed. The parties may file written submissions in support of or in opposition to any application made.

1. The respondent, Mr Horak, has pleaded guilty to eight charges relating to his conduct as a solicitor between 2006 and 2010.
2. He pleads guilty to seven charges of professional misconduct and one charge of unsatisfactory professional conduct. Six of the charges are serious and two of those charges relate to misconduct at common law - conduct that would reasonably be regarded by legal practitioners of good repute and competency as dishonourable and disgraceful.
3. Mr Horak has admitted breaches of his obligations as a legal practitioner in wide-ranging areas: failures in his duties to the court and the administration of justice, his obligations in respect of his trust account, his duty to clients, and his duty to the regulator.
4. The question for the Tribunal in this proceeding is what orders, out of the available determinations under the Legal Profession Act 2004 (the Act), are required to protect the public, to maintain professional standards, and to maintain the public's confidence in those standards?
5. Mr Horak comes before the Tribunal with a long and serious disciplinary history commencing shortly after he obtained his first practising certificate in 1988. His practising certificate has twice been cancelled for a substantial period.
6. In 1990, the Solicitors Board cancelled his practising certificate following findings of misconduct. In 1991, the Supreme Court upheld the Board's decision. By the Board and the Court's orders, Mr Horak was prohibited from applying for an employee's practising certificate until January 1994, and for a full practising certificate until 1996.
7. Mr Horak applied for an employee practising certificate in 1994, in March and again in December. Each time it was refused by the Solicitors' Board. He successfully appealed the December 1994 refusal to the Supreme Court, and resumed practice under an employee practising certificate in July 1995.
8. In 1998, that practising certificate was cancelled by the Full Tribunal of the Legal Profession Tribunal, for an effective period of six years, after further findings of professional misconduct. The misconduct included entering into a sham arrangement with another practitioner, effectively practising as a principal despite only holding an employee practising certificate.
9. Mr Horak next obtained a practising certificate, to practise on his own account, in November 2004. The events giving rise to the charges in these proceedings relate to conduct from December 2006 to December 2010.
10. The fact that Mr Horak comes before the Tribunal with a history that includes two significant periods in which he lost his right to practise, each followed by re-offending, squarely raises the issue of whether he is a fit and proper person to hold a practising certificate. Essentially the question for the Tribunal is whether Mr Horak should be allowed to retain a practising certificate on what, if any, conditions; or whether his practising certificate should be suspended or cancelled.
11. Counsel for Mr Horak submitted that Mr Horak should be allowed to continue in legal practice, under conditions if required, and for a period of time as an employee, if necessary. In essence, Counsel submitted that Mr Horak is not now someone from whom the public needs protection.
12. The matters raised on the plea submission include the following.
13. Since 2010, apart from two complaints, which the Commissioner has dismissed, Mr Horak has practised without incident. He has made improvements to his office administrative systems and has engaged a mentor. He has been seeing a psychologist in relation to depression and anxiety diagnosed in April 2013, and will continue to do so.
14. Mr Horak is well-regarded in the notary community, and is one of the few Czech and Russian speaking notaries. If Mr Horak loses his practising certificate, he cannot work as a notary public.
15. He is responsible for supporting his wife, child and elderly mother. He had difficult personal circumstances at the time of the events giving rise to the charges.
16. Importantly, he has pleaded guilty to the charges.
17. Mr Horak did not give evidence in these proceedings, nor did he make a witness statement. He called four witnesses: Dr Michelle Morris, a counselling psychologist; Mr Christopher Wray, who has been acting as a mentor to Mr Horak; Mr Paul Cariss, a lawyer and notary public; and Professor Peter Zablud, a solicitor and notary. He also relied upon a number of other statements by character witnesses, medical evidence and evidence in relation to improvements in his practice management and administration.
18. In this case, I declined to hear submissions on penalty from the Commissioner.
19. On 12 February 2014, the High Court gave its decision in Barbaro v R; Zirilli v R. [1] Counsel for Mr Horak made an early submission that, on the basis of Barbaro, I should not hear submissions from the Commissioner on what penalty should be imposed - there was no objection to submissions from the Commissioner on relevant principles, comparable cases and other matters. Counsel for the Commissioner wished to make submissions and asked for a ruling.
20. Barbaro concerned the question of whether it is appropriate for a prosecutor in criminal proceedings to make submissions on what ranges the sentences to be imposed should fall within.
21. The Court noted that a practice had developed in Victoria for a sentencing judge to ask counsel for the prosecution to make submissions about the bounds of the available range of sentences, and stated that the practice is 'wrong in principle.[2] The reasons for it being so include that the practice made lead to erroneous views about the importance of such a statement by the prosecution in the sentencing process 'with consequential blurring of what should be sharp distinction between the role of the judge and the role of the prosecution in that process.' [3]
22. Whether or not Barbaro is binding on disciplinary tribunals, there is no doubt that determining the penalty to be imposed in disciplinary proceedings is entirely a matter for the Tribunal, assisted, as in this case, by the parties' submissions on relevant principles, the facts to be found, comparable cases and the relative importance of matters such as specific and general deterrence.
23. There is a reasonable argument in my view that the role of the Commissioner is different to the role of the prosecution in criminal pleas. The Commissioner has a direct statutory function and role in the regulation of legal practitioners, and involvement in the implementation of Tribunal orders imposing conditions on the right to practice, with consequent experience in the practicalities of particular orders.
24. In other cases, it may well be appropriate to hear the Commissioner's submissions. Alternatively, the question may be decided one way or the other by the Courts. In this particular case, I preferred to approach consideration of penalty independently of any submissions by the Commissioner to ensure that there was no blurring of the kind referred to by the High Court.

1. In determining penalty, the Tribunal has available to it a range of orders. The objective of any determination is primarily the protection of the public and the maintenance of professional standards in the eyes of the public. While it is the case that any sanctions will have a punitive effect, where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public.[4]
2. The available orders include reprimand, fine, additional professional education, conditions of supervision, inspection or reporting, an order that the practitioner's practising certificate be suspended or cancelled and an order recommending to the Supreme Court that the practitioner's name be removed from the roll. [5]
3. With that protective focus in mind, the Tribunal considers a range of factors in determining penalty including any plea of guilty, the relative importance in the case of specific deterrence and general deterrence, past disciplinary history, evidence of character, and other mitigating factors such as medical or psychological evidence.
4. In considering whether suspension or cancellation is an appropriate sanction for the Tribunal to impose, the main issue is whether the person is a fit and proper person to practice, Stirling v Legal Services Commissioner.[6]
5. Removal from the roll occurs when the Supreme Court determines that a practitioner is presently and indefinitely unfit to remain on the roll. [7]
6. When considering whether to recommend to the Supreme Court that a practitioner's name be removed from the roll, the role of the Tribunal is to 'independently consider that a removal order is called for under the governing principles' and then set out its reasons for making the recommendation clearly and fully_.[8]_
7. Any recommendation of the Tribunal does not, of course, bind the Court. The Court will make its own independent assessment of the question.[9]
8. A recommendation by the Tribunal is likely to be appropriate, however, if the Tribunal considers that there is a reasonable prospect that the Court will make the order and/or the circumstances are such that a removal order appears to be called for and the question ought to be referred to the Court for consideration.

Fit and proper person to hold a practising certificate

1. The question of whether a practitioner is fit and proper is to be decided as at the time of hearing.[10]
2. The purpose of the requirement that a person be a 'fit and proper person' to hold a practising certificate is protective.[1] The public must be able to be confident that 'those they engage as lawyers are fit and proper persons to provide appropriate, proper, careful and competent legal services'.[11]
3. They are protected 'by ensuring that those unfit to practise do not continue to hold themselves out as fit to practice.'[12]

1. The Full Court of the South Australian Supreme Court observed in Legal Practitioners Conduct Board v Clisby,[13] in relation to the related public interests involved in the Court's supervisory function:

'First, there is the protection of the public from practitioners whose past conduct demonstrates that they lack the qualities of character and competence essential to the practice of the profession of law.

Secondly, there is the obligation to maintain public confidence that professional standards are being upheld, and with that, the maintenance of the public's confidence in the mechanisms for supervising professional conduct_.[FN]_

1. In Legal Services Board v McGrath,[14] Warren CJ referred to the observation of Walters J in Sobey v Commercial and Private Agents Board[15] that the expression 'fit and proper person' is 'not capable of being stated with any degree of precision'.
2. In Sobey, Walters J expressed the opinion that 'fit and proper' denotes not only the requisite knowledge of the duties and responsibilities of the office but also 'sufficient 'moral integrity and rectitude of character as to permit [the applicant] to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails'.[16]
3. In Hughes and Vale Pty Ltd v New South Wales (No 2), the High Court described the purpose of the words as to give 'the widest scope for judgment and indeed for rejection.' Nevertheless, the High Court observed that in respect to an office:

'Fit.....is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke.' [17]

1. The issues are:
   • What is the nature of the conduct that has been admitted;
   • What is the nature of the conduct that has led to disciplinary sanctions in the past, and what is the relevance of that disciplinary history;
   • What mitigating factors can be taken into account, and what is the evidence about Mr Horak's fitness now; and
   • What are the appropriate orders?

1. By agreement, the Commissioner filed an amended application for orders in October 2013 setting out the Commissioner's reasons for making the application - the factual allegations, the eight charges and the particulars for those charges.
2. Mr Horak has agreed to the charges as particularised. I make findings accordingly. There was no agreed statement of facts. The following summary is therefore from the amended application for order.

Charge 1: Misconduct at common law (the Ginzburg settlement)

1. In 2009 and 2010, Mr Horak acted for a client, Mrs Ginzburg, in County Court proceedings. Mr Hellman acted for the other party.
2. In 2009, Mr Hellman made a disciplinary complaint to the Commissioner about Mr Horak's conduct during the course of the proceeding. Shortly after, the Commissioner referred the investigation of that complaint to the Law Institute of Victoria (LIV).
3. In February 2010, Mr Horak conducted settlement negotiations with Mr Hellman on behalf of their respective clients. It was proposed and agreed that a term of the settlement be that Mr Hellman withdraw the disciplinary complaint against Mr Horak. Mr Hellman did so in March 2010. Notwithstanding that action, the Commissioner continued the investigation of Mr Horak's conduct.
4. I find Mr Horak guilty as charged of professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law in that he conducted and concluded settlement negotiations on behalf of his client in circumstances where it was proposed and concluded as a term of the settlement agreement that the disciplinary complaint against him by a legal practitioner be withdrawn; being conduct that would reasonably be regarded by legal practitioners of good repute and competency as dishonourable and disgraceful.
5. It is entirely inappropriate for a practitioner to mix his client's interests in a settlement of Court proceedings with his own quite separate interests and obligations arising from a disciplinary complaint. That he did so suggests that Mr Horak lacks an understanding of his obligations to his client in negotiating a settlement of proceedings, and lacks understanding of the regulatory process and his obligations in that process. Once a disciplinary complaint had been made against him, Mr Horak's obligation was to respond to the LIV appropriately, make submissions as appropriate and otherwise allow the investigation to conclude.
6. It is hazardous for a practitioner to seek to negotiate, with the complainant, the withdrawal of a disciplinary complaint once it has been made. Whether or not the complainant is prepared to do so, it is conduct that may well be characterised as an attempt to subvert the proper investigation of the complaint, which is an essential part of the regulatory process.
7. In this case, the conduct is aggravated by inclusion of the withdrawal in terms of settlement of proceedings between Mr Horak's client and the complainant's client. It should have had no part in any consideration of the terms of settlement.
8. It does not matter, in my view, that the withdrawal as agreed did not stop the investigation. On the contrary, it would be a matter of greater concern if Mr Horak had expected it to do so. It was entirely appropriate for the LIV to continue its investigation.
9. I note the affidavit made by Ms Ginzburg in September 2013 in which she states that she instructed Mr Horak to include all complaints in the settlement as she was unwell and wanted a final resolution of all matters. I note also that she says that Mr Horak told her that that the withdrawal of complaints had to be separate and independent.
10. The contents of Ms Ginzburg's affidavit mitigate against an inference that Mr Horak pressured his client to include the withdrawal in the settlement, which would aggravate the serious nature of the conduct. As it was, he should have ensured that the complaint against him was not part of the settlement.
11. The conduct is, in my view, appropriately characterised as conduct that would be regarded as disgraceful and dishonourable by legal practitioners of good repute and competency.

1. Charges 2, 3 and 4 arise from a complaint made on behalf of Dr Patrick O'Sullivan, for whom Mr Horak acted between January and September 2007 in a number of separate proceedings. The complaint related to legal costs charged by Mr Horak.
2. The charges relate to breaches of Mr Horak's trust account obligations and his failure to produce relevant documents and a statutory declaration in response to written requirements of the LIV during the course of an investigation.
3. He failed to keep a separate trust account ledger in relation to the O'Sullivan trust monies, in breach of regulation 3.3.17 of the Regulations.
4. He failed to carry out any monthly reconciliation of the trust records relating to the trust account in the period January to December 2007 in breach of regulation 3.3.19.
5. Despite repeated requests from Galbally and O'Bryan on behalf of Dr O'Sullivan, between September and December 2007, that he provide a copy of all bills of costs and/or an accounting of money paid, Mr Horak failed to provide any trust account statement. Nor did he furnish to Dr O'Sullivan a trust account statement as soon as practicable after the retainer ended. He thereby breached regulation 3.3.28.
6. He failed to respond within 16 days to a request by the LIV[18] dated 21 December 2007 for a proper accounting of fees charged to, and monies paid by the client and a statement of account. The LIV sent follow up letters on 23 January 2008, 26 February 2008 and 3 March 2008.
7. On 20 March 2008 Mr Horak responded by enclosing a number of bills of costs (the invoices):
   • dated 17 September 2007 in the sum of $790.00;
   • for the period 6 May 2007 to 24 September in the sum of $1,887.55;
   • for the period 27 April to 27 September 2007 in the sum of $73,607.21;
   • dated 17 September 2007 For the period 30 April 2007 to 18 September 2007 in the sum of $22,550.88;
   • for the period 6 February 2007 to 26 April 2007 in the sum of $46,134.00
8. Mr Horak stated that 'apart from the actual invoices from Counsel inter alia, we do not have any other documents which would be relevant.'
9. The LIV investigator was unable to reconcile the payments made by Dr O'Sullivan to Mr Horak with the invoices.
10. In May 2008, after the appointment of Ms Kosovska to conduct the Trust Account Investigation, Mr Horak provided her a copy of an invoice dated 28 January 2007 in the sum of $99,866.25. His failure to produce the January invoice prior to then breached his obligations under section 4.4.11(1)(b) of the Act.[19] Dr O'Sullivan's solicitors later advised the Commissioner that Mr Horak had not previously supplied a copy of the January invoice despite their requests.
11. On 24 February 2009, the Commissioner wrote to Mr Horak requiring him within 16 days to provide, inter alia, an explanation verified by statutory declaration in relation to various matters concerning the late production of the January invoice. Mr Horak did not respond to that request.
12. A follow up letter from the Commissioner in April 2009 advised him that his failure to comply with her requests may amount to professional misconduct.
13. In June 2009, Mr Horak provided a written explanation in relation to the matters requested. It was not verified by statutory declaration and he sought to have the Commissioner justify her request for verification by statutory declaration.
14. Mr Horak's failure to provide the required statutory declaration is a breach of his obligation under section 4.4.11(1)(b).
15. I find Mr Horak guilty of charges 2, 3 and 4 as follows.

1. I find Mr Horak guilty as charged of professional misconduct within the meaning of section 4.4.4(a) of the Act, in that in the period 16 January 2007 to 14 December 2007, his Law Practice failed to keep trust records in accordance with section 3.3.25(2) of the Act.[20]

1. I find Mr Horak guilty of professional misconduct within the meaning of section 4.4.4(a) of the Act in that the failure of his Law Practice to furnish to his client a trust account statement from 28 September 2007 to date contravened regulation 3.3.28(1) of the regulations and thereby section 3.3.14(3) of the Act.

1. I find Mr Horak guilty of unsatisfactory professional conduct within the meaning of section 4.4.4(a) of the Act in that his conduct between 20 March 2008 and May 2008, and between 13 March 2009 and 20 June 2009, in failing to provide relevant documents and a statutory declaration in response to a written requirement of the LIV during the course of an investigation under Division 3 of Part 4.4 of the Act contravened section 4.4.11(1) of the Act.

Charge 5: Professional misconduct (first Crosswell complaint)

1. On about 18 May 2007, Mr Horak made a withdrawal of $49,574.38 from his Law Practice's trust account in the following circumstances.
2. In about November 2008, Mr Leonard Crosswell engaged Mr Horak to act for him in relation to patent litigation in Western Australia, and also to finalise Mr Crosswell's workers compensation claim with his employer's work cover insurer.
3. The agreed settlement of the worker's compensation claim included a sum for the settlement of the claim together with payment of Mr Crosswell's costs, to be assessed.
4. On about 16 May 2007, Mr Horak received a settlement cheque from the insurer in respect of the claim in the sum of $58,500.00.
5. Mr Horak deposited the cheque into the trust account and wrote to Mr Crosswell on 18 May advising him that he had deducted from the settlement funds the sum of $49,574.38, said to be deducted in respect of Mr Horak's professional costs and disbursements in the patent litigation.
6. In the same letter, Mr Horak enclosed, for the first time, his bill of costs for the patent litigation for the period 1 January 2007 to 5 May 2007.
7. The withdrawal was not carried out in accordance with regulation 3.3.34 of the Regulations[21] and section 3.3.20(1)(b) of the Act.[22]
8. The withdrawal breached the requirements of section 3.3.14(1) of the Act which requires a Law Practice to hold trust money deposited in the Trust Account exclusively for the benefit of the person on whose behalf it was received and disburse it only in accordance with a direction given by Mr Crosswell.
9. I find Mr Horak guilty as charged of professional misconduct within the meaning of section 4.4.4(a) of the Act in that on or about 18 May 2007, a withdrawal of $49,574.38 was made by him for his Law Practice's Trust Account on account of his Law Practice's professional costs, in circumstances where the withdrawal gave rise to a breach by his Law Practice of section 3.3.14(1) of the Act.

Charge 6: Misconduct at common law (second Crosswell complaint)

1. Charges 6 and 7 arise from Mr Horak's conduct in the period 2008 to 2010, after a dispute arose between Mr Horak and Mr Crosswell about the legal costs charged by Mr Horak in acting in the patent litigation.
2. Charge 6 arises from a second complaint made by Mr Crosswell and relates to written and oral statements made by Mr Horak in 2008, 2009 and 2010 in the context of settlement negotiations with Mr Crosswell's legal representatives.
3. Charge 7 arises from an own motion investigation following a referral from Wood AsJ, who conducted the taxation proceedings, and relates to Mr Horak's repeated failure to comply with Court orders and repeated failure to appear at listed hearings or arrange for another practitioner to appear. It is considered in a separate part of these reasons.
4. In January 2008, Mr Horak commenced proceedings in the Magistrates' Court seeking payment of $44,657.19 in allegedly outstanding legal fees relating to the patent litigation.
5. In March 2008, Mr Crosswell commenced taxation proceedings in the Supreme Court against Mr Horak and Mr Horak's firm, Horak Frankovich Rose and Cross, of which Mr Horak is the sole partner.
6. In the taxation proceedings, Mr Crosswell sought review of five bills of costs rendered by Mr Horak in relation to the patent litigation.
7. The taxation proceeding, the Magistrates' Court proceedings and other disputes between Mr Horak and Mr Crosswell were ultimately settled in December 2010 on the basis that Mr Horak pay Mr Crosswell the sum of $85,000.00.
8. By June 2008, Mr Horak had become aware that Mr Crosswell had made a complaint to the Commissioner about Mr Horak's conduct in acting for him in the patent litigation and the workers' compensation claim (the first Crosswell complaint).
9. Charge 6 arises from the following.
10. By a letter dated 2 June 2008 to Mr Crosswell's lawyers, Heath Legal, Mr Horak noted the existence of the first Crosswell complaint, and offered to accept $40,969.95 in settlement of the fee dispute conditional on withdrawal of all proceedings and LIV or LSC complaints (the first offer).

1. On 6 October 2008, two business days before a listed taxation hearing on 9 October in respect of one bill of costs, Mr Horak sent Heath Legal by facsimile a letter. The letter bears the date 4 October 2008 but was not sent until 6 October.
2. In the 6 October 2008 letter, Mr Horak:
   • noted that Mr Crosswell received work cover payments as a result of 'his alleged back injury for a considerable period which amounts to a substantial sum of money';
   • alleged that 'our documentation, tapes of our client and diary notes inter alia shows that Mr Crosswell was working full-time and in actual fact at least six days a week and for long hours while receiving Work Cover payments';
   • confirms that Mr Crosswell is a director of the company from which he was claiming payments;
   • notes that Mr Crosswell has also 'proferred a very defamatory and libelous [sic] complaint as against Mr Horak of the Firm to the Legal Services Commissioner and to the Law Institute';
   • suggests that Mr Crosswell now comes to court 'with unclean hands and at his own peril;'
   • 'notes' that in giving instructions in the Federal Court proceedings, Mr Crosswell omitted crucial, detrimental information;
   • says that 'it appears that Mr Crosswell has now indicted himself as a result of his own admissions and is placed in a very perilous legal quandary';
   • suggests that Mr Crosswell therefore has no 'credibility or veracity';
   • states that '[t]his matter may now need to be reported to the Work Cover Authority and insurers who paid out this substantial settlement sum';
   • states '[w]e have canvassed this matter with the Law Institute and are poised to refer this matter to the Legal Services Commissioner for their comment';
   • states '[as] a result thereto it may be that we shall be required to deliver all documentation in our possession to relevant parties for further determination and action' and
   • suggests 'you telephone Mr Horak to discuss this matter urgently.'
3. Mr Horak sent a facsimile the next day, 7 October, to Heath Legal containing an offer to settle for payment to him of $21,734.70, expressed to be open for acceptance until noon of the next day, 8 October 2008 (the second offer).
4. That offer expired and at around 3pm on 8 October, Mr Horak sent a further facsimile containing an offer of compromise under the Supreme Court Rules, in which he offered to compromise the taxation proceeding upon payment to him of $30,000.00 (the third offer).

1. At 4.20pm on 8 October 2008, in a telephone discussion with Mr Ruschena of Heath Legal:
   • Mr Horak asked Mr Ruschena whether or not he had obtained instructions in relation to the 'fraud' (as asserted in his 6 October letter);
   • Mr Ruschena told Mr Horak that Mr Crosswell would handle the matter himself; and
   • Mr Horak then said words to the effect that he would now have to go to the Law Institute and the Legal Services Commissioner and seek a ruling as to whether to go to the Victorian Workcover Authority to report his allegations; and that it would not be in Mr Crosswell's interests not to accept the offer of settlement.
2. Mr Horak's third offer was not accepted, and the taxation commenced on 9 October but on 10 October was adjourned part-heard to 23 April 2009.
3. On about 21 October 2008, the Commissioner gave Mr Horak notice that Mr Crosswell had made a second disciplinary complaint about the sending of the 6 October letter (the second Crosswell complaint).

1. On 23 April 2009, Mr Horak had discussion with Mr Ruschena outside Court in which he made a fourth offer.
2. The offer was that Mr Crosswell pay him half the balance of the remaining bills (about $24,000); withdraw his complaints to the Commissioner and the Board; the parties would give undertakings as to confidentiality; each party would bear their own costs; and the claim and counterclaim in the Magistrates' Court would be withdrawn with no order as to costs (the fourth offer).
3. During the course of the discussion, Mr Horak again raised with Mr Ruschena his belief that Mr Crosswell had engaged in illegal or improper conduct with respect to his workcover payments, and then said words to the effect that if Mr Croswell withdrew his complaint to the Commissioner then he would 'take no further action' (the 23 April statements).
4. It is alleged by the Commissioner, not disputed by Mr Horak, and I am satisfied that each of the 6 October letter, the 8 October statements and the 23 April statements were sent or made by Mr Horak to induce Mr Crosswell to settle the taxation and the Magistrates' Court proceedings by making a substantial payment to Mr Horak and further, withdraw the first and second Crosswell complaints.
5. Mr Horak made a number of further offers to settle the proceedings on terms that expressly included a requirement that Mr Crosswell withdraw the two disciplinary complaints: on 23 April 2009 during the lunch adjournment, on 15 September 2009 in a document entitled 'Offer of Compromise' (in which Mr Horak offered to accept $11,000.00) and in December 2010. The offers were not accepted. In the December 2010 negotiations, Mr Goldberg of Heath Legal refused to settle on that basis.
6. As noted above the proceedings were settled in December 2010 on the basis that Mr Horak pay Mr Crosswell $85,000.00. Mr Horak paid that sum on 21 December 2010. The terms of settlement make no reference to any complaints made by Mr Crosswell to either the Commissioner or the LIV.
7. I find Mr Horak guilty as charged of misconduct at common law in that his conduct in:
   • drawing and sending the 6 October 2008 letter, making the 8 October 2008 statements; making the 23 April 2009 statements; and
   • over the period June 2008 to December 2010 repeatedly proposing settlement of the taxation and related proceedings by making offers conditional or subject to the withdrawal of disciplinary complaints;

was conduct (whether considered separately or when taken together) that would reasonably be regarded by legal practitioners of good repute and competency as dishonourable and disgraceful.

1. It was agreed by Counsel for Mr Horak that charge 6 was the most serious of the eight charges. There is no doubt that it is a most serious charge.
2. Mr Horak has sought not only to obtain a financial benefit to himself - settlement of his claim for fees - but also sought to obtain the withdrawal of a disciplinary complaint against him, by a barely veiled threat to report his former client for workers compensation insurance fraud, based on documents in his possession as a result of acting for the client in the very same claim.
3. On any view, it is extraordinary behaviour by a legal practitioner. It shows, in my view, a profound lack of understanding of what a legal practitioner must not do. It also shows a disturbing lack of understanding of what is proper for any person to do. It would be serious enough if such a threat were made by a layperson. It is much more serious for such a threat to be made by a lawyer to his former client, and in the context of taxation or any other proceedings.
4. In The New South Wales Bar Association v Maddocks, [23] the Court of Appeal of the New South Wales considered the conduct of a barrister who threatened an adversary in private litigation with disclosure of an alleged insurance fraud in order to put pressure on his opponent to withdraw the proceedings.
5. Although not conduct in a professional capacity, it was nevertheless regarded as unlawful and disgraceful by Kirby P, disgraceful and dishonourable conduct rendering him unfit to remain a member of his profession by Samuels JA and professional misconduct by McHugh JA[24].
6. Mr Horak's threat was in the context of taxation proceedings between himself and his former client. Although he was acting for himself, the proceedings are distinguishable from the private litigation in Maddocks: taxation proceedings are provided for in the Act, and are between a solicitor and client; they are not uncommon and usually take a fairly predictable course.
7. To the extent that Mr Horak also linked the threat to the disciplinary complaint his former client had made, it is conduct in the context of the statutory process for regulation of practitioners.
8. Most seriously, Mr Horak has continued with the conduct, repeating the veiled threat outside court on 8 October 2008, and then making the 23 April 2009 statements, despite being on notice that the 6 October letter had itself been the subject of a disciplinary complaint.
9. The following observations by Smithers SM in Legal Services Commissioner v Johnston [25] are apposite to the conduct the subject of this charge:

If legal practitioners behaved in the way Mr Johnston has the profession would quickly fall into disrepute. All persons involved in the conduct of litigation have a duty to behave in a way which is respectful of the other participants, [and does not scandalise the court]. The duty applies with greater force to legal practitioners, even when representing themselves.

Charge 7: professional misconduct (own motion investigation)

1. Charge 7 arises from the Commissioner's own motion investigation following a referral by Wood AsJ who conducted the taxation proceedings.
2. Over the period 3 June 2008 and 25 August 2010, Mr Horak persistently failed to comply with Court orders without reasonable excuse and repeatedly failed to attend listed hearings in person or arrange for another practitioner to appear.
3. Mr Horak failed to comply with various Court orders made on 29 April 2008, 26 August 2008, 30 September 2009, 3 March 2009, 23 April 2009, and 7 September 2009. The orders required Mr Horak to do a number of things - file and serve bills of costs in taxable form, file and serve a cash account, and file and serve lists of disbursements incurred and accompanying information.
4. By his affidavit sworn 29 March 2010 filed in the taxation proceedings, Mr Horak sought to excuse his failure to comply with the 7 September orders by deposing to matters including the following:
   • Mr Horak's belief that the Court orders were made in error, were unreasonable and were ultra vires in all the circumstances;
   • Mr Horak's objection to the provision and production of any 'trust cash book', on the basis that the plaintiff [Mr Crosswell] had never had had a trust cash book entry reconciliation, and that no such 'trust cash book' entry was recorded or ever in existence;
   • Mr Horak's belief that the plaintiff's legal advisors were 'not conversant with' the trust accounting obligations;
   • Mr Horak's belief that any court order or requirement to produce records which he did not possess or were not in existence was an 'abuse of process'; and
   • Mr Horak's request that the Court strike out or otherwise withdraw the relevant orders, and the costs orders made by the Court consequential upon his failure to comply with the relevant orders.
5. Between September 2009 and August 2010 Mr Horak provided a number of medical certificates and sought a number of adjournments of listed hearings. The Commissioner's amended application for orders sets out the sequence and details of the adjournments over that period.
6. Finally, on 25 August 2010, the Court made a further order on its own motion as follows:

Irrespective of legal representation or appearance on behalf of the defendants on 11 and 12 October 2010, the remaining bills be taxed forthwith

On the occasion of the last two scheduled taxation hearings on 20 May 2010 and 25 August 2010 there was no appearance by, or on behalf of the defendants. On each occasion the Court was informed that this was due to ill health of the first defendant. In order to ensure that there is no further delay in this matter the Court records its expectation that the defendants will arrange legal representation if necessary on the resumed hearing scheduled for 11 and 12 October 2010, in the event that the incapacity of the first defendant to participate, on the basis that there being ample opportunity to properly instruct legal representation prior to the further hearing

1. Mr Horak has plainly failed to comply with Court orders without reasonable excuse. Further, his affidavit sworn 29 March 2010 is an extraordinary response to the relatively straightforward orders made by the Court, alleging that they are 'an abuse of process' and 'ultra vires.' The contents indicate, in my view, a profound lack of understanding of his obligations to the Court, the requirements of a practitioner on a taxation of costs, and his obligations in respect of trust monies.
2. I find that Mr Horak's conduct in persistently failing to comply with Court orders without reasonable excuse and repeatedly failing to appear or arrange for another practitioner to appear at listed hearings, is professional misconduct being conduct in connection with legal practice falling substantially short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.

Charge 8: Professional misconduct (Styles complaint and own motion investigation)

1. Charge 8 is that Mr Horak is guilty of professional misconduct within the meaning of section 4.4.4(b) of the Act: charging of excessive legal costs in connection with the practice of law.
2. Charge 8 relates to four bills sent to a client, Alan Styles in the period 31 July 2006 to 10 August 2007 and five bills sent to Mr Crosswell from December 2006 to November 2007.
3. As submitted by Counsel for the Commissioner, the overcharging is not what might be called the 'usual' basis of a charge under this section. It is not so much that Mr Horak has charged too much for his professional time, rather he has charged his clients at his full professional rate for tasks which are usually undertaken by administrative staff or of a kind which would never be in a bill of costs.

1. Mr Horak acted for Mr Styles from about May 2006 to August 2007 in connection with a dispute between Mr Styles and other principals of an accounting firm. Proceedings commenced in the Supreme Court of Tasmania.
2. Mr Horak's firm rendered four bills of costs in connection with the partnership dispute. Exclusive of counsel's fees, the professional costs and disbursements totalled $96,379.70.
3. Mr Horak charged legal costs, at his full professional charge out rate of $395.00 per hour, for categories of tasks, which were of a kind for which no proper charge ought to have been made by a solicitor in respect of professional fees.
4. They were tasks of an administrative nature for which either the fees of an administrative clerk ought to have been charged or no fee charged at all.
5. The list of categories is long and diverse. It includes Mr Horak's personal professional fees for:
   • Telephone attendances on a barrister's clerk regarding Counsel's rates, the clerk's bank account details and issues regarding accounts payable;
   • Perusing accounts sent by third parties;
   • Correspondence with his client enclosing Counsel's tax invoices, and trust receipts;
   • Drawing trust cheques for Counsel's and other fees;
   • Drawing letters to and attending a barrister's clerk's office in person to pay Counsel's fees;
   • Writing to Mr Styles to request his bank account details;
   • Attending on his trust account, reconciling account balances and attending to his internet banking, including fees for reviewing emails sent to him by his internet banking service;
   • Corresponding with Mr Styles regarding payment of his fees, and account reminders;
   • Telephone calls and correspondence arranging conference times with Counsel;
   • Leaving telephone messages;
   • Professional time and related disbursements such as taxi fares or train tickets to hand deliver briefs to Counsel, and also a parking ticket related to same;
   • Administrative matters in relation to the issuing of proceedings, such as identifying the correct filing fees, and formatting documents;
   • Researching appeals procedures in Tasmania;
   • Email and telephone attendances on airlines and hotels to arrange travel to Tasmania; and
   • Attending on the Law Society regarding a complaint made by a Tasmanian solicitor against the Mr Horak.
6. He also charged excessive and apparently duplicative charges for both printing and photocopying email and facsimile messages.
7. He charged excessively for attending personally to filing a Writ in the Supreme Court of Tasmania, and personal service of multiple defendants in Tasmania, in circumstances where a local agent or process server would have sufficed.

1. Mr Horak rendered five bills to Mr Crosswell in respect of the patent litigation. Exclusive of the fees of interstate agents, Counsel and other third parties, the professional costs and disbursements totalled $169,193.46.
2. As with the charges to Mr Styles, Mr Horak charged at his full professional charge out rate in circumstances where the work performed was of a purely administrative nature, or not work for which a legal practitioner would ordinarily render any professional fee.
3. Mr Horak charged his full professional rate for such matters as:
   • Attendances to make travel arrangements;
   • Drawing cheques for Counsel and third parties;
   • Time spent in photocopying cheques;
   • Leaving telephone messages;
   • Attending a barristers clerk's office in person to pay Counsel's fees;
   • Sending documents by facsimile, including a telephone attendance on Mr Crosswell on one occasion to tell him that his facsimile machine was out of paper;
   • Receiving cheques from Mr Crosswell for payment of Counsel's fees;
   • Researching potential counsel, agents and other third party service providers on the internet;
   • Contact with barristers and barrister's clerks in Victoria and Western Australia regarding possible briefs in the patent litigation prior to the commencement of any litigation;
   • Perusing tax invoices and statements of account sent by third parties; and
   • Drawing letters enclosing receipts, requesting or providing bank account details.
4. Mr Horak also charged excessively for 'travel', for attending to serve documents, for both printing and photocopying email and facsimile messages, for engrossing virtually identical documents.
5. I find that the charges are appropriately drafted and established on the evidence. I find the charge of professional misconduct proved.
6. As Counsel for Mr Horak submitted, it is not suggested that Mr Horak was dishonest or rapacious in rendering these bills. It is, in my view, a most unusual form of overcharging and no less a concern. Mr Horak appears to have had no knowledge or understanding of the proper basis on which professional time can and should be charged to a client.
7. As both Counsel agreed, this is not the most serious of the charges to which Mr Horak has pleaded guilty. It is, however, in the category of conduct arising from a lack of knowledge of what he must not do.

1. Mr Horak was admitted to practise as an employee solicitor in 1988 and obtained his first full practising certificate in August 1989.
2. I was provided with the following summary of the disciplinary orders on the public record against Mr Horak:
   • 17/9/90: Solicitors' Board No.312 of 1990, 2 findings of misconduct, appealed;
   • 25/10/1991: Supreme Court of Victoria No 10982 of 1990, Findings of misconduct upheld. On undertaking that he will not practice as a barrister before 1 January 1996, order that he not do so set aside;
   • 29/3/94: Solicitors' Board No 80 of 1994. Application by Mr Horak for employee practising certificate refused;
   • 21 December 1994: Solicitors' Board No 176 of 1994. Application by Mr Horak for employee practising certificate refused, appealed;
   • 27 July 1995: Supreme Court of Victoria No 4192 of 1995. Appeal against Solicitors' Board No 4192 of 1995 upheld. Employee practising certificate to be granted;
   • 9 February 1998: Full Tribunal of the Legal Profession Tribunal - T0604 of 1997. Four charges of misconduct;
3. There were a further three proceedings in 2009 related to the Commissioner's investigation of the complaints which led to these charges.
4. On 11 May 2009, this Tribunal found Mr Horak guilty of unsatisfactory professional conduct in failing to comply within the time allowed with a requirement to provide a full written explanation of conduct. He was fined $500.00 and ordered to pay costs.[26]
5. On the same date, the Tribunal found Mr Horak guilty of professional misconduct in that he failed to comply with requirements made by the Commissioner to provide a full written explanation, and provide his trust account ledger and file. He was ordered to provide a full written explanation, provide his trust account ledger, fined $1000.00 and ordered to pay costs.[27]
6. In November 2009, the Tribunal found Mr Horak guilty of professional misconduct by failing to comply within the time allowed with a requirement to provide information and documents. He was fined $1,500.00 and ordered to pay costs.[28]
7. It is unusual for the Tribunal to be provided with a practitioner's disciplinary history stretching back 24 years but it is also unusual for a practitioner to have two significant periods of cancellation each followed by re-offending. Mr Horak has twice been found to be not a fit and proper person to hold a practising certificate.
8. In the submission of the Commissioner, not only are the details of the past findings relevant as showing patterns and repetition of conduct, but also the observations made by the Solicitor's Board, the Supreme Court and the Legal Profession Tribunal have significance.
9. I consider the relevance of Mr Horak's past history below.
10. In setting out the detail of the matters found against Mr Horak, I have included some of the observations made by past decision-makers. They have expressed, to varying degrees, hopes or fears for Mr Horak's future ability to practise law without offending and it is relevant to assess the extent to which those hopes or fears have been realised. As a separate matter, some of those observations echo the concerns that I have had, in considering the appropriate penalty in this case.

1. On 17 September 1990, the Solicitor's Board found Mr Horak guilty of:
   • one count of misconduct in a professional capacity within the meaning of section 15 of the Legal Profession Act Practice Act 1958 (the 1958 Act), being:

misconduct in a professional capacity or any other conduct in respect of which an application might be made at the commencement of the Law Institute Act 1917 have been made to the Supreme Court by any person to strike a practitioner off any roll of practitioners or to require a practitioner to answer allegations contained in an affidavit; and

• one count of misconduct as defined by section 2A(a) and 2A(c)(ii) of the Legal Profession Practice (Amendment Act 1989 (the 1989 Act), being:

[2A(a)] 'wilful or reckless contravention of this Act (other than section 80 or 81) or rules or regulations under this Act', and [2A(c)(ii)] the making of a statement which purports to be a statement of fact and which the solicitor knows to be false...to the secretary, if the statement was made in the course of the investigation by the secretary of a complaint in relation to that solicitor and related to the complaint'.

1. The first count of misconduct arose from Mr Horak's dealings with Mr Peter Reid and a solicitor who was the Melbourne agent of Mr Reid's Bendigo solicitor, Mr Middlemis.
2. The second count of misconduct arose from the contents of a letter written by Mr Horak to the Law Institute constituting his answer to a complaint made by Mr Middlemis. The letter was not before the Tribunal in this proceeding but was described by J D Phillips J, who heard the appeal[29] as follows:

The letter, which was some 19 pages long, contained sundry denials of the allegations of misconduct and contained also many counter-allegations of misconduct and impropriety against the solicitor who had made the complaint against the appellant in the first place and against those whose statements or letters had been used by him to support his complaint. I note in passing that the secretary was of the opinion that this letter from the appellant contained an inaccurate account of the matters under investigation and he regarded it as a deliberate contravention of Rule 6.[30]

1. Mr Horak was acting for Mrs Reid in custody proceedings. He was also at the time in a relationship with her. The Board formed the view that the relationship between Mr Horak and Mrs Reid was such that it was inevitable that his judgment would be severely impaired.
2. The Board's findings included that:
   • Mr Horak improperly spoke to or negotiated with Mr Reid, who was the client of another solicitor. The conduct included pressure to agree to give custody of Mr and Mrs Reid's son to Mrs Reid in the form of threats of Taxation Department involvement. The Board accepted Mr Reid's evidence that Mr Horak said that if he would not go along with the proposal that he hand over custody to his wife, then Mr Horak's threats would be carried out, which were restricted access, and Taxation Department involvement against him and his family - that Mr Horak had 'dirt' on Mr Reid and his family as far as taxation went;
   • He improperly tried to prevent a solicitor, acting as agent for Mr Reid's solicitor, from obtaining instructions. The Board observed, in relation to his actions in this respect that they 'only serve in our view to show the extent to which his judgment was clouded and the extent to which he was prepared to go to achieve success'; and

• In December 1989, after a complaint about his conduct by the solicitor for Mr Reid, he wrote a letter to the Law Institute in purported justification of his conduct. The Board was satisfied that the letter 'by its terms and references to members of the legal profession was couched in language that was disgraceful and unprofessional'. The Board said that the contents of the letter 'speak for themselves and confirm the view we have formed that the solicitor is not a fit and proper person to be a member of the legal profession.

3. The Board cancelled Mr Horak's practising certificate and directed that he could apply for an employee practising certificate only after 1 January 1994, and prior to the date of any application for a full practising certificate, must have practised as an employee of another solicitor for at least two years.
4. The Board also ordered that Mr Horak was not to engage in practice as a barrister before 1 January 1996. On the appeal by way of rehearing, J D Phillips J set aside that order, accepting an undertaking from Mr Horak to the same effect, but otherwise agreed with the Board's conclusions and dismissed the appeal.
5. His Honour, JD Phillips J accepted that Mr Horak may have been led into error by his close, personal relationship with Mrs Reid but expressed the view that his conduct in 'shanghaiing' the client of another solicitor could not be condoned: 'Every practitioner is bound to recognise that he is never permitted to interfere between another practitioner and his client. It is one of the foundations of the system.' [31]
6. His Honour described Mr Horak's 'quite extraordinary letter' to the Law Institute as 'vituperative and intemperate and of course quite unnecessarily so', and he agreed with the Board that it indicated that Mr Horak was unfit to act as a solicitor.
7. I note the following observations made by His Honour:[32]

Bearing in mind the personal circumstances of the appellant and that he is at the start of his career in the law and taking into account all that his counsel has urged in his favour, I think that nevertheless the misconduct which has been established calls for condign punishment. There must be an element of deterrence, both special and general in this penalty and I cannot ignore that - although at the same time I recognise the real possibility that if the appellant does learn from his experience, he may not offend again.'

1. Mr Horak made two applications for an employee practising certificate in 1994, in March and December. On each occasion the application was refused by the Solicitor's Board, the latter decision by a majority.
2. In refusing his applications, the Board members expressed a number of concerns. They were not satisfied that Mr Horak was genuinely convinced of the serious nature of his original conduct; that he recognised his susceptibility in the future to stress arising out of his work; that he could conduct himself regularly and consistently according to the high standards required of a solicitor.
3. In March 2004, the Hon B L Murray QC delivering unanimous reasons of the Board refusing Mr Horak's application, said:

This decision [to refuse his application for a practising certificate] of course, will not prevent the applicant from making a further application, but obviously he will only make another application after the lapse of sufficient time and where the circumstances can be shown to be different.....We are by no means convinced that what Mr Woods described as "traits of character" have been sufficiently dealt with. We think that those traits of character are alive and well and they are absolutely incompatible with the proper conduct of a solicitor's practice.

1. Mr Horak re-applied the same year and in December, in a majority decision, the Board refused his application.
2. The Board had before it a medical report by Dr Kenny, a consultant and psychiatrist who reported that Mr Horak:

Does not give any evidence of formal psychiatric disturbance, nor does he give evidence of any significant personality disorder or disturbance. He gives good evidence of a major error of judgment, getting him to the situation that he got into. He does not have any continuing psychiatric disturbance...I have no reason to consider that he would be likely to make similar errors of judgment again. Hopefully he has learnt from this. It is clear that his judgment at the time was grossly distorted by his intense and emotional involvement in the situation, but I have no evidence that in other areas of his life he demonstrates such comparable errors of judgment and/or that he is likely to in the future.

1. Under cross-examination, Dr Kenny said that if the abnormalities of behaviour and the absence of any realisation of their true significance continued for some considerable period of time then the conclusion as to the future would be less certain.[33]
2. In their reasons, the majority, Mrs J Pannam, as she then was, and Mr F Sweeney said:

Despite the general tenor of the evidence given by Dr Kenny favourable to the solicitor, we are not comfortably satisfied that his opinion is justified by the material on which it has been based, particularly when we note that the witness expressed reservations as to the solicitor's future conduct.

We are not satisfied that the solicitor even now is genuinely convinced of the serious nature of his original conduct. We are not satisfied that he does recognise his susceptibility in the future to stress arising out of his work...In short we are not satisfied that he can conduct himself regularly and consistently according to the high standards of a solicitor.

1. It is clear from subsequent events that the majority's concerns about Mr Horak's future conduct were well-founded.
2. Mr Horak successfully appealed to the Supreme Court, and Hedigan J. ordered that the Secretary of the Law Institute grant an employee certificate to Mr Horak.[34]
3. I note the following observations made by His Honour:[35]

Mr Horak is a long way from being an ideal representative of the legal profession, but he is intelligent, he is qualified, and he has been tempered by the fires of a long suspension. He is capable of learning from the lessons of the past.

The weight of the evidence to which I have referred is in favour of the conclusion that he is a fit and proper person to hold an employee's practising certificate. That evidence must surely outweigh the speculation that he may offend again. Perhaps he will. If he does, that will have to be dealt with. But the evidence, medical, personal and professional, gives reason for confidence that he is unlikely to offend again'.

1. The original 1990 orders of the Board, were left standing by Hedigan J. As a result, Mr Horak was obliged to practise for two full years as an employee before applying for a practising certificate entitling him to practise on his own account or in partnership.
2. He was granted an employee practising certificate in 1995.

1. In 1998, the Legal Profession Tribunal found proven against Mr Horak four charges of professional misconduct under the Legal Profession Practice Act 1958 (the1958 Act) and the Legal Practice Act 1996 (the 1996 Act):
   • Wilfully and/or recklessly failed to comply with section 90(1)(b) of the 'by carrying on of the practice of a solicitor with another solicitor when his practising certificate only permitted him to practice as an employee';
   • Contravening section 90(1)(b) of the 1958 Act by carrying on practice as a solicitor when not entitled to do so (between the months of July and November 1996);
   • Lodging with the LIV on 2 September 1996 an application for renewal of his employee practising certificate knowing that the application contained a false statement (that he was not practising as a solicitor except as an employee);
   • Professional misconduct at common law in that in March 1997 in the course of acting for a Mr Timothy Archibald on an application by Mr Archibald's wife for an intervention order, he told Mrs Archibald (who was unrepresented) in a threatening and intimidating manner that he would 'rip her apart' in the court room.
2. The Tribunal found that his conduct in circumventing the restrictions of his employee practising certificate, by practising as a solicitor under a sham practice agreement with another solicitor, was:

not merely a wilful contravention of section 90(1)(b) of the 1958 Act but a deliberate and deceitful overstepping of the boundaries of practice within which he knew both the Board and the Supreme Court had intended to confine him until at the earliest July 1997'.

1. The Tribunal described it as professional misconduct at common law, and of a very serious nature, striking at the roots of the system of disciplinary control of the profession.
2. In preliminary remarks in relation to penalty, the Tribunal noted the apparent effect of some of the provisions of the 1996 Act and said that:

We propose not to refer the case to the Supreme Court...In any event the historical material suggests that that it is by no means unlikely that the attention of the Supreme Court will soon be drawn to the findings of fact in this case even in the absence of a reference by the Tribunal under section160(2)(b).

1. The Tribunal also gave Mr Horak what can be described as a clear warning:[36]

We have no power, and no desire, to fetter any discretion of any future Tribunal, but the practitioner in the present case must realise that almost the only "penalty" left in the Tribunal's power which would be apposite to a repetition by him of the misconduct of the present case is a recommendation to the Supreme Court under section 160(1)(c)(iv) of the Act ' .

1. In a separate decision in relation to penalty given on 9 February 1998, after having read all the material relating to the prior hearings before the Solicitors' Board and before J D Phillips J and Hedigan J, the Tribunal echoed observations made on prior occasions.
2. Referring to the reasons of The Hon B L Murray QC in March 1994 as Chairman of the Board, noted above, the Tribunal observed:

We should say that this Tribunal in 1998 is also by no means convinced that the relevant 'traits of character' have come to an end, and on the contrary we consider that they are (to use Mr Murray's words) "alive and well" and they are absolutely incompatible with the proper conduct of a solicitor's practice. We are of the opinion that Mr Horak is totally unsuited to practice as a legally qualified practitioner, and we doubt whether he will ever by a fit and proper person to practice in the profession.

1. Referring to observations of Hedigan J that the form of the affidavit sworn by Mr Horak in support of his Notice to Appeal 'has the hallmarks of a stress-driven outburst, degenerating into baseless imputations and intemperate language, much as did the letter of 14 December' the Tribunal observed:

There is conduct of the practitioner in the present case which has the same unpleasant resemblance, and which bears the 'hallmarks of stress-driven outburst, degenerating into baseless imputations and intemperate language.' His Honour said that Mr Horak before him 'unequivocally withdrew the whole of the relevant matters [in the correspondence] without reservation'. His Honour formed the view that that was done genuinely, and His Honour said that he had reached the conclusion that Mr Horak was 'a fit and proper person to be given an employee practising certificate'.

His Honour said that the 'evidence, medical, personal and professional gives me reason for confidence that Mr Horak is unlikely to offend in this way again', but the Tribunal observes that in its opinion the practitioner has offended in this way again. Before the present Tribunal there was not the slightest sign of genuine regret or remorse, but rather an attitude of cocky self-assurance and self-righteousness.

1. The Tribunal then expressed the following view:

It is the opinion of this Tribunal that the facts now before it operate as it were to justify the worst fears of the earlier Boards, which spoke either unanimously or by majority about this practitioner. We think further that the evidence before this Tribunal shows that the hopes expressed for the future by Mr Justice Hedigan were, in the event, completely disappointed. We feel unhappily that the practitioner, if he is permitted to practice at all as a lawyer, will go on behaving in the objectionable ways which these cases have demonstrated. We are unhappily aware of the fact that we are indeed dealing with an intelligent man of some ability, and unhappily aware that orders for cancellation will operate to deprive this practitioner of one substantial, and perhaps the only substantial means of earning the kind of livelihood that he wants to earn. But we have a duty to the public and the profession to make what we consider to be appropriate orders in the circumstances.

1. As noted above, the 2009 findings related to Mr Horak's failure to respond to requests made by the Commissioner in the course of investigating the Crosswell and Styles complaints. As Counsel for the Commissioner conceded, they are related to the charges in the current proceedings and are not in the nature of aggravating factors.

1. Counsel for Mr Horak made detailed plea submissions, and Mr Horak's solicitor, Mr Dominic Varasso filed extensive documentary material in support of Mr Horak's character, steps taken to rehabilitate himself, and monies spent in seeking to rectify the deficiencies in his practice.
2. My impression is that Mr Varasso has obtained and submitted all available evidence in Mr Horak's favour, and done all in his power to put mitigating and relevant factors before the Tribunal.
3. The material included character statements, evidence in relation to the engagement of a mentor, Mr Wray, medical reports, a report of Lexcel, law practice management consultants who conducted a practice management and risk review for Mr Horak's practice in 2012, details of ongoing training and practice improvements including the introduction of an extensive office procedures manual, use of the LIV trust accounting online program and the report of Dr Michelle Morris, counselling psychologist who has seen Mr Horak since April 2013.
4. Counsel for Mr Horak made the following submissions:
   • Mr Horak pleaded guilty to the charges at the earliest available opportunity, avoiding the significant cost and inconvenience of preparation of witness statements and attendance at the hearing;
   • Mr Horak has shown remorse and insight;
   • The offending has to be seen in the context of his personal circumstances and the lack of support and the opportunity for counsel in the form of his practice at the time;
   • When he returned to practice in 2004 he did so as a sole practitioner, and as such suffered from the limitations of having no-one to discuss his work with. Because he was starting from a 'low-base' he did not carry out any careful client selection. His practice suffered from this, and the problem was exacerbated by doing his own court work;
   • He obtained no personal gain from the conduct the subject of the charges;
   • He is highly regarded within the notarial community;
   • He has made a number of changes in his life and professional life - he engaged Mr Christopher Wray as a mentor, he has instituted procedures based on advice from Lexcel, he now has support; and
   • He is not now a person from whom the public needs protection

1. Mr Horak has pleaded guilty which is a strong indication of remorse - regret for what has happened.
2. Evidence of insight is also relevant, as demonstrating an understanding of what has occurred, as opposed to a regret that it has occurred. If a practitioner has insight, it is less likely that the conduct will re-occur and more likely that the goal of protection of the public will be achieved.
3. A practitioner who fails to demonstrate the required insight, 'ought not, if the public is to be protected, be allowed to practise.'[37]

1. The evidence of Dr Morris is relevant to insight and remorse, and also to the question of whether the mitigating factor of mental illness was present at the time of offending.[38]
2. Dr Morris provided a psychological assessment of Mr Horak as at 23 September 2013, gave additional evidence in chief, and was cross-examined.
3. Dr Morris is a counselling psychologist, with qualifications in law, economics, psychoanalytic studies, and counselling psychology. She is adjunct lecturer in psychology at the Australian Catholic University, from which she received her PhD.
4. Mr Horak first saw Dr Morris on 20 April 2013, referred by his solicitor, Mr Dominic Varasso, for ongoing counselling and psychological evaluation. He has attended subsequent and continuing consultations.
5. In her assessment, Dr Morris recorded her diagnosis that Mr Horak is suffering a Generalised Anxiety Disorder (DSM IV Code 308.3) and Major Depressive Episode, Recurrent (296.3).
6. Her final report contains opinions on Mr Horak's current insight, his remorse, and whether his current medical condition affected his past behaviours.
7. In cross-examination and from documents in evidence before me, it became evident that Dr Morris had sent a draft of her report to Mr Varasso for his opinion, on 30 September 2013. Mr Varasso replied by email attaching a document headed 'M Morris amended Draft Reference for J Horak.' His email to Dr Morris was as follows:

Please see suggested fine tuning. Can you address in your report:

1. That the diagnosis of Mr Horak's condition was at the time that the offences occurred and were being dealt with by the LSC, that is they were relevant at the time of the misconduct, which happened over a number of years.

2. The reason you are counselling him, and the fact that counselling is having a beneficial effect and that the success of counselling is not effected, or is improving or whatever your appropriate opinion is.

3. In summary, you need to identify the problem as diagnosed, that the problems were evident at the time of misconduct and that counselling is rectifying that conduct and whatever your prognosis and opinion is.

1. The attachments contained suggested inclusions from Mr Varasso, some of which Dr Morris included in her final report.
2. There was some controversy at the hearing about the matters included in Dr Morris' final report. I first record the matters recorded in her draft report:
   • Mr Horak spoke at length about his regret about the current difficulties that he is facing;
   • He presents as a man who believes that he has always acted in the best interests of both his family and his clients but has not fully complied with his legal obligations in relation to fees and trust accounts;
   • He has reported that the pressure of his health and that of his family impacted on his need to return to work earlier than was medically advised and this caused him to make errors in judgment;
   • He has stated that he is contrite, repentant and ashamed of the matters currently before the Victorian Civil and Administrative Tribunal. He sincerely regrets his actions and Dr Morris believes this is indicated by his guilty plea.
3. In her opinion the therapy has been effective to date and 'he is unlikely to reoffend as he is determined to change his behaviour.' She states in her report that it is 'likely that his behaviour will improve with further counselling'.
4. The additions suggested by Mr Varasso and included by Dr Morris in her final report are in italics below:
   • He presents as a man who believes that he has always acted in the best interests of both his family and his clients but has not fully complied with as to his conduct as a legal practitioner in communicating with fellow practitioners and with his legal obligations in relation to fees and trust accounts:
   • Mr Horak has regretted not doing a re-training course when he regained his practising certificate in 2004. Since these complaints were being dealt with, he has implemented measures and developed a network which will assist him in complying fully as a practising solicitor;
   • It is my opinion that Mr Horak has gained considerable insight into his conduct of his practice and that he has learned from his past experience.
5. Dr Morris also added to her final report the following:

In my opinion, it is likely that Mr Horak's present psychological condition also affected his past behaviour. This behaviour has been consistent over a long period of time.

1. Under cross-examination, Dr Morris agreed that, as she first saw Mr Horak in April 2013, she could not make a clinical diagnosis of Mr Horak's state at the time of his offending in May 2006 through to December 2010. Dr Morris said that was why she had left out the word 'clinical' from the statement of opinion (recorded in the paragraph above). She said she could only have given a clinical opinion if she had known Mr Horak at the time.
2. In this case, issues of insight and remorse are important. It is also highly relevant to determine whether at the time Mr Horak engaged in the relevant misconduct he was affected by any mental disorder or illness.[39]
3. On the face of Dr Morris' final report, she was reporting matters and expressing opinions in her capacity as a counselling psychologist that were relevant to those issues.
4. In circumstances where the stated opinion, that 'Mr Horak's present psychological condition also affected his past behaviour' has been suggested to Dr Morris, and was agreed by her to not be a clinical opinion, but simply an 'opinion' that could not have been based on any contemporaneous knowledge of Mr Horak, that opinion is of little utility to the Tribunal and I give it little weight. At the least it ought to have been expressed as a provisional opinion under the Practice Note in respect of Expert Evidence, PNNVCAT2, and the instructions disclosed.
5. For those reasons, Dr Morris's report cannot, in my view, support a conclusion that Mr Horak was at the time of the conduct affected by the conditions Dr Morris diagnosed in 2013. She also agreed that the circumstances he was in at the time of her diagnosis, including the stress of the Commissioner's investigations, and as a separate matter his personal family circumstances, could be causal or contributing factors.
6. I note that, in cross-examination, Dr Morris agreed that she had understood the requirements of expert evidence and had read the VCAT Practice Note outlining those requirements but said that she did not consider herself an expert.
7. I have also given little weight to the opinion, added into the final report after an express suggestion from Mr Varasso, that 'Mr Horak has gained considerable insight into his conduct of his practice and that he has learnt from his past mistakes.'
8. I do so for two reasons. First, it was not an opinion expressed by Dr Morris in her draft report, but was suggested to her.
9. Secondly, it is inconsistent with a document in evidence before me, and discussed below, that Mr Horak wrote, Mr Varasso sent to Dr Morris, and Dr Morris saw before she finalised her report.
10. I accept Dr Morris statement that Mr Horak has expressed regret and remorse.

1. In September 2013, Mr Horak created a 9-page document, which set out a history of events which had occurred in his life between 2000 and 2013. He sent it to Mr Varasso who in turn provided it to Dr Morris on 23 September 2013. She said that she had read it but preferred to rely on her own observations and notes.
2. It has relevance as being the only document in evidence recording Mr Horak's own perspective on the events in his life over the period of the charges and his insight into what occurred professionally. It must be read in the context of a man who at the time was suffering from a relapse in his condition, as reported by Dr Morris. In answer to my question about how it should be treated, Counsel for Mr Horak submitted that it should be treated as self-serving and generated out of internal frustration, and I do so.
3. I accept that it is a document generated by Mr Horak at a time of great pressure and at a stage of identified relapse into depression and anxiety. Although Dr Morris said that she had not regarded it as relevant to refer to in her report, she agreed in cross-examination that the document gives an indication of Mr Horak's insight as at 2013 into past events.
4. Much of the document concerns background personal circumstances and events in Mr Horak's life in the period. It is consistent with the difficult personal circumstances described below and records that Mr Horak felt under great stress at different times, and also had times of great financial difficulty.
5. Some of the document records Mr Horak's perspective, in September 2013, on events giving rise to the charges, the investigations of the LIV and the LSC, Mr Horak's clientele at the time, and the particular clients who made the complaints leading to these proceedings. It therefore has some relevance to the question of insight. The following are quotations from those parts of the document:
   • [2005] Began practice and got very bad clients, abusive, fraudulent and violent. Crosswell, Styles and O'Sullivan. Really horrible people caused stress, very abusive, threatening and made life a misery for my whole family. Clients were very nasty. Refused to pay on time, argumentative and stressful.....Law Institute gave no support;
   • [2007] Problems with work, Crosswell abusive, Styles threatening O'Sullivan;
   • [2007] LSC complaints by Crosswell and Styles, Threats by Crosswell, Fraud by Crosswell, LIV don't do anything and believe his version despite his fraud,LIV give no advice as to how they can help in this situation. Styles threats and Crossell. I pay Crossell to get peace of mind. Return him 85,000 dollars. We allow Crosswell to tax out of time, shouldn't have done this, Now too late, we didn't seek anyone's assistance and LIV gave no assistance or advice. LSC continue with the Complaints, which were primarily instigated by Styles. Styles very abusive comes to Melbourne Creates a scene and we hand over files...
   • Work conducted for clients, Clients won't pay, Loss of 85,000 to Crosswell;
   • Also through this period from about 2006 onwards LIV and LSC pursuing me and clients forwarding complaints;
   • LIV & LSC Causing major stress and always take sides of the Complainants irrespective that the Client in one instance committed fraud and LIV and LSC know about it;
   • Payment of Crosswell to prevent further stress he gets about $85K. Irrespective LSC Continues with Complaints. Styles gets very large discounts and his matter is settled. But despite the release and settlement LSC continue with their complaints;
   • O'Sullivan only Complains about JH after he no longer needs us and we have acted for him and done a very good job;
   • LIV & LSC despite Hellman withdrawing his complaint continue to prosecute JHF despite knowledge of the truth of the matter;
   • Trust matters merely technical in nature, no loss of money. No harm to any one;
   • I have made no money from working as a result of this continuous barrage of Complaints with no end. All of the money has gone to defence of these matters;
   • I have expended to date nearly $400,000 on trying to protect myself from these people;
   • As a result of my illnesses have found ways to cope and do my very best for people and believe now that I have been rehabilitated from my strokes and Sinus surgeries and that I am able to function properly as a good lawyer;
   • [2013] I sincerely regret any problems I may have caused to any people during my infirmed state and despite some short coming's I have not intentionally calculated any loss or damage to any person purposefully or otherwise;
   • Whilst having to provide for my family, help clients, and do my best it is difficult to cope with these situations however I have been having assistance with information and discussions with people whom have provided valuable insight in how to deal with these problems in an attempt to cope with these situations and to make a better life for not only myself family and to keep the profession in high standing;
   • I have set about and put into place variety of strategies in order to deal with these issues.
6. Mr Horak concludes the document with:
   • In the event LSB of VOCAT interfered with my ability to practice I would have no means to support my family, my mother or myself and would be destitute and debt ridden and do not have the means to earn another livelihood. I would as would my family become totally dependent upon Welfare, Unemployment benefits and my wife would be as necessity reduced to sickness benefits. My mother would have to live with us as a dependent invalid.
7. What the document indicates in my view is that, in 2013 Mr Horak did not understand why the disciplinary investigations continued, believed he had done a good job as solicitor for his clients, and attributed the cause of his troubles as being his clients. It indicates that, as at 2013, Mr Horak did not understand why the LIV and the LSC would continue investigating the Hellman complaint after Mr Hellman withdrew it, and the Styles and Crosswell complaints. It is inconsistent, in my view, with the required insight.
8. Dr Morris' statement about Mr Horak's insight is also inconsistent with what appears to have been Mr Horak's explanation of the circumstances giving rise to the charges, resulting in the following statement from one of his character witnesses, Professor Zablud:

It is clear from the nature of the present charges and Jan's explanation of the circumstances which gave rise to them, that Jan understandably became frustrated by the actions of other practitioners whose standards of conduct and integrity he perceives to be less honourable than his own.

1. I accept that Professor Zablud has recorded his own perspective on what Mr Horak told him. Nevertheless, it is greatly concerning that Mr Horak's explanations of the circumstances giving rise to the charges would lead to such a conclusion.
2. I refer to Professor Zablud's evidence in more detail below. Because Mr Horak did not give evidence himself, I did not have the benefit of evidence indicating that Professor Zablud had misunderstood what Mr Horak told him, or contradicting the inference that Mr Horak felt that his standards of conduct and integrity were more honourable than others.
3. In the circumstances, I am not able to be satisfied that Mr Horak has demonstrated insight into his failures in the past or the reasons why his conduct in the present case has fallen far short of the requirements of professional practice.

1. Christopher Wray has been in practice as a solicitor since 1969 and is currently in sole practice in Ringwood. He has extensive professional and community involvement and experience, Mr Wray undertook the role of mentor and advisor to Mr Horak in April 2012 at the request of Mr Varasso, Mr Horak's solicitor, made through the CEO of the Law Institute, Mr Michael Brett Young.
2. Mr Wray was engaged in his capacity as an experienced solicitor to carry out the examination of Mr Horak's practice and procedures, and subsequently to provide a report to the Tribunal, for remuneration.
3. Mr Wray examined Mr Horak's file operating system, file review system, accounting system and his office practices and procedures. He went through the recommendations of the Lexcel Report with Mr Horak.
4. Mr Wray attended Mr Horak's office on 13 subsequent occasions between July 2012 and November 2013 in each case for between two to three hours. He was shown current files, discussed practice issues, and was present during telephone conversations Mr Horak had with clients and other practitioners.
5. Mr Wray made the following observations:
   • He had been shown Mr Horak's trust account records and they appeared to be up to date;
   • He had listened to a conversation Mr Horak had with a man who, Mr Horak said, was difficult and a drug addict affected by drugs at the time, and Mr Horak dealt with the caller in a direct but appropriate manner. He was not threatening or overbearing and received abuse without retaliating;
   • Mr Horak expressed regret at the effect that his conduct had had upon his clients, and Mr Wray believed he was genuine in saying this;
   • Mr Horak made it clear to him that he understood that his actions which gave rise to the charges were inappropriate and brought both himself and the profession at large into disrepute;
   • Mr Wray believes that Mr Horak has learned a substantial amount from the advice and assistance he has been given, including ongoing assistance from Mr Varasso, since the charges were laid. From Mr Wray's observations, and his discussions with Mr Horak, he believes that Mr Horak realised that he had to change his approach to legal practice and his interaction with other practitioners, and has taken steps to put this into effect;
   • If the Tribunal determined that Mr Horak should hold his practising certificate subject to a condition that he be given mentoring and advice, Mr Wray would be prepared to assist by doing so when he is not carrying out his duties with the Veterans' Review Board, which occupies about 17 weeks full time and some part-time work, and with Rosendorff Lawyers, which involves occasional attendances.
6. Mr Wray said in his letter that he had discussed the charges and the previous charges with Mr Horak who informed Mr Wray that:
   • When many of the events which are the subject of the current charges and the 2009 findings occurred he was ill (having suffered several strokes), his wife and mother were ill and he was under extreme pressure from having too much work to carry out at a time when he was physically and emotionally unable to perform the work as well as he would have hoped to do it;
   • He felt isolated from other members of the profession and he had no-one with whom to discuss professional issues;
   • He had put in place procedures and recording systems to avoid the problems he now faces; he has employed an experienced book-keeper to ensure that his trust records are correct and up to date; he has taken steps to become more involved with professional activities so as to be more aware of appropriate conduct when dealing with other professionals; also attending CPD seminars;
   • He has reduced his work load and is now referring work, particularly where there is a probability that he may have to deal with a difficult client, or the work involved would put him under too much pressure.
7. In additional evidence in chief, Mr Wray said that he believes that Mr Horak has the capacity to continue practising in an appropriate way. In relation to Mr Horak's mental and temperamental capacity, Mr Wray said that Mr Horak is a strong personality and comes across as such, but Mr Wray has noticed that when dealing with clients he does it appropriately. Mr Horak has told him that he has taken more care with the kinds of people he acts for, and doesn't act for difficult people.
8. Mr Wray said that he can only speak of what he has seen, but based on what he has seen, he believes that Mr Horak is fit to practice.
9. While it is a matter for the Tribunal, Mr Wray's opinion has weight, in my view. He has been in regular contact with Mr Horak over an 18-month period. He has seen at first hand Mr Horak's office systems and processes. I accept his evidence that, whatever was the case in the past, Mr Horak's trust account records, for example, are up to date. But the following is relevant.
10. Mr Wray was in the hearing room when Counsel for the Commissioner outlined the charges and Mr Horak's prior history. In cross-examination, Mr Wray agreed that the summary of the previous orders he had received was very different to the outline given at the hearing, and he had not heard before about the threats made on previous occasions. He agreed that what he had heard caused him some concern.
11. Mr Wray was asked whether what he had heard caused him to change his mind. He said he had given this some consideration during the morning. He said that while concerning, he still believed that Mr Horak may well be capable of practising, with supervision perhaps, but not on his own for some time.
12. I make the observation that Mr Wray was a candid and helpful witness. He was clearly concerned about the more detailed knowledge he gained about Mr Horak's past history. He was frank about his concerns and careful in expressing his revised opinion.
13. Mr Wray's concerns reflect my own.

1. Written references were provided by:
   • Gabriella Fabriani, solicitor and notary who has known Mr Horak since 2008 in connection with activities of the Australian and New Zealand College of Notaries and agency activities on his behalf;
   • Joseph Lukaitis, solicitor and notary, who has known Mr Horak since 2007 in connection with the Australian and New Zealand College of Notaries;
   • Oksana Mitnovetski, solicitor who has known Mr Horak for approximately 4 years in connection with referrals made to Mr Horak of clients outside Ms Mitnovetski's area of expertise;
   • Joe Rausa, solicitor, who has known Mr Horak 2-3 years in professional social settings;
   • Stephen Martski, member of the Victorian Bar, who was Counsel briefed by Mr Horak in the Styles Litigation in Tasmania, who has known Mr Horak intermittently since the 1970s when they were students together at the University of Tasmania.
2. References were given and evidence given in person by;
   • Paul Cariss, solicitor and notary, who has known Mr Horak since 2009 in connection with activities of the Council of the Society of Notaries of Victoria;
   • Professor Peter Zablud, solicitor and notary, who has known Mr Horak since 2004 when Mr Horak was a student of Professor Zablud in the Graduate Diploma of Notarial Practice course at Victoria University, and in connection with the activities of the Society of Notaries of Victoria.
3. Each of them to varying degrees expressed confidence in Mr Horak's character and commitment to the law and his clients. Each of them had been provided with a summary of the charges in this case and a summary of his past disciplinary history. As has been noted above however, those summaries lack the important detail, which gave Mr Wray pause.
4. Professor Zablud included in his character reference the following:

In many discussions with Jan over the past years I have formed the view that he is a serious and competent practitioner who fights for and always puts his clients' interests first.

It is clear from the nature of the present charges and Jan's explanations of the circumstances which gave rise to them, that Jan understandably became frustrated by the actions of other practitioners whose standards of conduct and integrity he perceives to be less honourable than his own.

1. Under cross-examination, Professor Zablud said he could not precisely remember the particular explanations but remembered talking to Mr Horak about his views. His understanding of the charges was based on the schedule of charges he received and Mr Horak's explanations.
2. He said that, as he understood the charges, some related to Mr Horak's relationships with other solicitors, and Mr Horak drew conclusions that those solicitors had acted less than honourably. Professor Zablud said that in Mr Horak's view charge 1 (the Ginzburg settlement provision) arose from that cause. Professor Zablud said that Mr Horak had told him about charge 6 (the 6 October letter and other statements). He believed Mr Horak said that the charges put did not accord with what happened.
3. Professor Zablud conceded that he was not aware of the detail of the matters the subject of the charges in the current proceedings, nor was he aware of the details of Mr Horak's past disciplinary findings. He said he was not aware, in particular, of the content of the 6 October letter and other statements forming part of charge 6.
4. I accept the sincerity with which Professor Zablud gave his character reference for Mr Horak. Nevertheless, it is not clear how Professor Zablud could reach the conclusion, on the basis of the nature of the charges, that Mr Horak 'understandably became frustrated by the actions of other practitioners whose standards of conduct and integrity he perceives to be less honourable than his own'. The charges cover a wide range of conduct, most of which relates exclusively to Mr Horak's own conduct.
5. If Mr Horak's explanation of the circumstances giving rise to the charges led Professor Zablud to that conclusion, then Mr Horak's explanation was at the least incomplete and lacking in insight as to the reasons why the conduct amounts to serious professional misconduct.
6. In all the circumstances, Professor Zablud's evidence does not support a conclusion that Mr Horak has insight into the conduct the subject of these charges and tends to support a contrary conclusion.

1. The following matters arise from the plea material, including Dr Morris' recount in her report of Mr Horak's background.
2. Mr Horak is 57 years old. He is fluent in Russian and Czech and is one of the few notaries in Australia to be fluent in those languages.
3. He currently lives with his 48 year old wife and 16 year old stepson in East Bentleigh.
4. Between 1998 and 2004, Mr Horak travelled in Central Asia. He met his wife in Uzbekistan in 2002 and married her in 2002 in Tashkent. He suffered minor strokes while in Central Asia. In 2010, he was operated on for a sinus problem which involved crano-facial surgery. He suffers from hypertension, which complicated his convalescence and continues to be a problem.
5. His family circumstances have been challenging. His wife and stepson have had difficulty settling into life in Australia. Both had language difficulties. His son was abused and victimised at school. His wife has been unable to be employed.
6. The health of his elderly mother has declined. She fractured a leg in 2006, and in 2007 she suffered a heart attack on a plane. She underwent spinal surgery later that year. Mr Horak and his wife have supported her.
7. He has reported experiencing abuse and violence from clients. This in turn caused much stress which impacted on his family life.

1. While every case is different and it is rare to have the same combination of factors and considerations in any two cases, it is important to ensure that the penalty in a particular case is not disproportionate either to the particular conduct involved or to other similar cases.
2. Counsel for Mr Horak referred the Tribunal to a number of decisions that provide a useful comparison in relation to one or more of the charges to which Mr Horak has pleaded guilty. I note the most relevant to the situation in this case.
3. In Legal Practitioners Conduct Board v Clisby [2012] SASCFC 43, the decision for the Court was whether Mr Clisby's name should be struck off the roll. In determining instead to suspend him from practice, the Court took into account the seven or eight years since the offending where he had practised without blemish, the testimonials to his integrity competence and character, and the fact that he had ceased practice in the particular area of law (migration law).
4. The Clisby case has similarities in the sense that the offending conduct was very serious and raised the question of whether he was a fit and proper person to hold a practising certificate. There had also been a period of practice without incident after the offending conduct. However, that period was 7 or 8 years, as opposed to just over three; and apart from one earlier charge of unprofessional conduct for which he had been reprimanded and fined, Mr Clisby had no significant disciplinary history.
5. In Legal Services Commissioner v El-Hissi [2013] VCAT 325, Senior Member Smithers found Mr El-Hissi guilty of 10 charges of professional misconduct including seven charges of misconduct at common law. The Tribunal cancelled his practising certificate, ordered that he not be allowed to apply for one for nine months and ordered him to pay costs.
6. In his favour were the following factors:
   • He pleaded guilty (also present here);
   • No prior matters were put against him (which is different to the case here);
   • References were given attesting to his good character, general competence and diligence, commitment to supporting his family, contrition, feelings of shame (similar references have been given here);
   • The impact on him had been such that the conduct will not occur again (specific deterrence had a lower importance that in the case here);
   • He was 26 and 29 respectively when the conduct occurred (Mr Horak was in his late 40s and early 50s when the conduct occurred) .
7. I note the following further difference between El-Hissi and this case:
   • The charges in El-Hissi concerned related conduct arising from an error of judgement in acting for family members and family friends, rather than wide-ranging conduct across the whole of his practice as in Mr Horak's case.
8. In Legal Services Commissioner v Booth [2012] VCAT 1730, the practitioner pleaded guilty to 15 charges relating to his conduct in the administration of an estate, practising as a solicitor for a period of three months without a practising certificate, unauthorised withdrawal of trust monies, and charges relating to trust account deficiencies and inadequate records. Member Butcher cancelled Mr Booth's practising certificate and prevented him from re-applying for a period of one year, with conditions imposed on any such re-application.
9. An important difference between this case and Booth is that Mr Booth had only one prior disciplinary finding, in 2008, having practised since 1974. Nevertheless the Tribunal considered it necessary to cancel Mr Booth's practising certificate for a period of one year in the interests of general and specific deterrence and public confidence in the legal profession.
10. In Legal Services Commissioner v Johnston [2012] VCAT 1731, Senior Member Smithers found Mr Johnson guilty of two charges of professional misconduct (one being misconduct at common law). His practising certificate was cancelled and he was not permitted to apply for a period of two and a half years.
11. The charges arose from four affidavits he swore and filed in Federal Magistrates' Court proceedings. The affidavits contained language variously described as intemperate, discourteous, vulgar, provocative and/or offensive. The LSC proceedings followed a referral from the Federal Magistrate who heard the proceedings. In finding Mr Johnston guilty of professional misconduct the Tribunal observed:[40]

Overall Mr Johnston appears to be an intelligent man who has become so embittered by his experiences that he has thrown all caution and professional restraint to the winds and simply 'let rip' with a series of tirades against those opposed to his interests in the family law and other litigation he has been involved in.

1. In that proceeding, the Commissioner sought an order recommending to the Supreme Court that Mr Johnston's name be removed from the roll.
2. The Tribunal noted a number of matters including the following:
   • No apparent remorse or insight;
   • Specific and general deterrence were both important;
   • A concern, but no basis on which the Tribunal could conclude that Mr Johnson was suffering from a mental impairment for the purposes of a 'Verdins' consideration: impaired mental functioning, whether temporary or permanent , is relevant to sentencing, and as stated in Quinn, the principles of sentencing are applicable by analogy in disciplinary matters
3. The conduct was serious. The Senior Member Smithers observed:

If legal practitioners behaved in the way Mr Johnston has the profession would quickly fall into disrepute. All persons involved in the conduct of litigation have a duty to behave in a way which is respectful of the other participants, and does not scandalise the court The duty applies with greater force to legal practitioners, even when representing themselves. Notwithstanding Mr Johnston's grievances about the way in which he feels he has been treated, a penalty is required which recognises that his conduct harms the reputation of the legal profession, and that is contrary to the public interest.

1. Senior Members Smithers declined to make an order recommending to the Court that Mr Johnston be struck off the roll. The Senior Member took into account that Mr Johnston had a 'clean' disciplinary record, that no dishonesty was involved, that his conduct did not occur while acting for a client for remuneration, and an earlier contribution to the profession.
2. By comparison to Mr Johnston, Mr Horak has pleaded guilty, in contrast to what the Tribunal described as a constant barrage of voluminous and outlandish correspondence from Mr Johnston.
3. Unlike Mr Horak, Mr Johnston had no prior disciplinary history.
4. Unlike Mr Horak, the charges were confined to conduct in the course of Mr Johnston acting on his own behalf in acrimonious family law proceedings and did not arise from his professional practice. Even so, a substantial period of cancellation was ordered.
5. In Legal Services Commissioner v Nelson [2013] VCAT 1347, Mr Nelson pleaded to and was found guilty of nine counts of professional misconduct and his practising certificate cancelled, with an order that no practising certificate be issued for eight months after the start of the cancellation.
6. The charges related to conduct in respect of two clients in 2009 including the most serious charge of failing properly to supervise an employee who wrongfully accepted cash payments of $7,500 from clients, with most of the money being lost.
7. Mr Nelson also failed to provide information to the Commissioner and received (through the employee) trust payments amounting to less than $1,000 when the practice was not authorised to do so.
8. The nine charges did not include any charges of misconduct at common law.
9. Mr Nelson was 79 years old at the time of the Tribunal orders.
10. Like Mr Horak, Mr Nelson had a significant disciplinary history including a 12-month period of suspension in 1990 following findings of misconduct for failing to complete work on time.
11. Mr Johnston was able to, but did not resume practice until 1998. He ceased practice in 2000 and at a disciplinary hearing in 2003 relating to the fraudulent activity of an employee, Mr Nelson undertook not to practice for a further three years. He did not resume practice until 2008.
12. Like Mr Horak, Mr Nelson pleaded guilty to the charges against him.
13. Similarly to Mr Horak, there was a suggestion of history repeating itself in the sense that the 2003 and the 2013 findings of misconduct against Mr Nelson both involved failings of supervision.
14. Mr Nelson had employed a bookkeeper in an endeavour to improve the financial operation of the practice.
15. In imposing an eight month period of suspension the Tribunal took into account:
    • Mr Nelson's age and the greater impact of a period of suspension, compared to a younger practitioner;
    • Character references from practitioners including counsel and solicitors who had been articled to him, which included positive statements of his honesty and provision of pro bono assistance to community members in need;
    • The Tribunal's concern that Mr Nelson had not substantially altered his 'hands off' method of practice and still tended to delegate;
    • Credit for Mr Nelson's plea of guilty (although limited by its lateness); and
    • The need for specific and general deterrence
16. While there are some similarities noted above, there are a number of differences. Mr Horak's disciplinary history is more serious. The periods of mandatory cancellation were longer. The repeated conduct on the part of Mr Horak relates to his own behaviour in making improper threats. The charges against Mr Horak in this case are more wide-ranging and include breaches of his obligation to the Court.
17. Counsel for the Commissioner provided the following cases submitted to be relevant;
    • General principles relating to penalty: Legal Services Commissioner v Telehus [2014] VCAT 24; and Stirling v Legal Services Commissioner [2013] VSCA 374;
    • Threatening conduct: NSW Bar Association v Maddocks, noted above; and Legal Services Commissioner v Brondolino [2012] VCAT 1995;
    • Excessive legal costs: Verghelyi v The Law Society of NSW [1995] NSWCA 483 (which also included a threat made against an arbitrator); Law Society of ACT v Roche & Roche [2002] ACTSC 104; Council of the Queensland Law Society v Roche [2003] QCA 469; and Legal Profession Complaints Committee v O'Halloran [2011] WASAT 95 (S).
18. Taking into account the cases provided by Counsel for both parties, my view is that a penalty which included suspension or cancellation of Mr Horak's right to practise for a significant period of time would be within the range of cases in this and other jurisdictions.

1. As noted below, the Tribunal is required to specify a penalty in respect of each charge, unless the charges arise from a course of conduct such that a global penalty is appropriate.[41] In some cases, such as Legal Services Commissioner v Telehus[42] one or more of the charges may of themselves warrant suspension or cancellation.
2. In this case, the more serious of the current charges have raised the question of whether suspension or cancellation is appropriate.

1. There is no doubt that a disciplinary Tribunal must keep the past in perspective. Such a Tribunal is required to look to the future, with the objective of protection firmly in mind, to assess the risk posed by the practitioner and choose appropriately from the available sanctions.
2. In looking to the future, however, past disciplinary findings may provide useful information about matters including the following:
   • a practitioner's capacity to learn from his or her mistakes, which is relevant to an assessment of character;
   • the extent to which past sanctions have deterred the practitioner from re-offending, which is relevant to consideration of specific deterrence in fixing a penalty; and
   • any patterns of repeated behaviour, which may be relevant to an assessment of a practitioner's capacity to understand the requirements of professional practice, and to specific deterrence.
3. Mr Horak's past disciplinary history is relevant in each of these respects, in my view.
4. First, it indicates that Mr Horak has had a limited capacity to learn from his mistakes.
5. The nature and breadth of the conduct the subject of this proceeding, of themselves raise the issue of whether he has any real understanding of what it is a legal practitioner must and must not do. When put against the background of a past disciplinary history replete with clear statements about what is required, repeated warnings about the consequences of re-offending, and two substantial periods of cancellation, his re-offending strongly indicates a significant defect in character.
6. Second, his past disciplinary history is highly relevant to specific deterrence and increases its importance here.
7. Mr Horak's disciplinary history demonstrates that even two significant periods of disqualification have not been sufficient to deter Mr Horak from re-offending.
8. The 1990 findings of the Solicitors' Board and the cancellation of his right to practice as a principal for 6 years and as an employee for 4 years ought to have been enough.
9. The opportunity Hedigan J gave him in 1995 to resume practise as an employee, and the observations made by His Honour, ought to have signalled clearly to Mr Horak that he was being given a chance to start afresh, one not to be taken lightly or squandered. The only restriction imposed, that he practise as an employee for two years, was the very one Mr Horak sought to circumvent.
10. As the Tribunal observed in 1998, almost the only sanction not yet imposed on Mr Horak is a recommendation to the Supreme Court that he be struck off the roll.
11. Third, in each of his three periods of practice since admission in 1988, Mr Horak has engaged in professional misconduct, most of it serious misconduct. This pattern of behaviour squarely raises the issue of whether he has or will ever have any sufficient understanding of the requirements of professional practice.
12. Not only has he re-offended, but he has repeated certain categories of conduct;
    • vituperative and intemperate letters (1990 and these proceedings);
    • improper attempts to have complainants withdraw disciplinary complaints (1990 and these proceedings); and
    • improper threats in an attempt to persuade another party to withdraw or cease defending proceedings (1990 - threats to Mr Reid, these proceedings - threats to Mr Crosswell).
13. There is a great deal about the current proceedings that can fairly be described as history repeating itself. Mr Horak has demonstrated a capacity to repeat the very misconduct for which he has previously been sanctioned. This is relevant both to character and to specific deterrence.
14. There are also elements of the charges in this proceeding which represent a new form of misconduct for Mr Horak - the extraordinary nature of the way in which he overcharged Mr Crosswell and Mr Styles, the repeated failure to comply with Court orders. It is of great concern that by doing so he has expanded the boundaries of his professional misconduct.

1. Mr Horak's past disciplinary history is highly relevant, in my view. But it remains the case that the Tribunal is required to make an assessment of the present risk, if any, Mr Horak poses to the public.

1. Relevant to that assessment, in my view, is whether there is evidence of:

• A demonstrated present insight into his past failures;[43]
• A related acceptance of responsibility for his conduct and remorse for that conduct;
• An understanding of the harm his conduct has done to his clients and others;
• A present understanding of what his obligations as a legal practitioner are, and the capacity to fulfil those obligations; and
• A sustained change in his behaviour demonstrating that he has acquired the moral integrity and rectitude of character required to be a fit and proper person to practise.

1. I give Mr Horak credit for the efforts he has made to bring some proper basis to the administration of his practice. Those measures go some way to protect him, and his clients, from conduct arising from administrative disorganisation and inadequate systems.
2. I also take account of Mr Horak's acceptance of the assistance of a mentor. There is little doubt that the ability to refer to and have the benefit of the advice of someone such as Mr Wray has brought some order and stability to the way in which Mr Horak practises law, and I have considered whether continuation of that arrangement might be enough. A mentor might well limit the potential for re-offending. But a mentor cannot stand at the shoulder of Mr Horak every day. I also note Mr Wray's revised opinion as to Mr Horak's fitness, after having the detail of the current charges and Mr Horak's past history.
3. I have also considered whether the public would be adequately protected by a requirement that Mr Horak practise only as an employee. Leaving aside considerations of specific and general deterrence, which may themselves require cancellation; in principle such a restriction ought to provide the required supervision and training to Mr Horak. But I am, unhappily, conscious that the same restriction has failed in the past.
4. I give Mr Horak credit for his plea of guilty. It is significant that this is the first time that he has pleaded guilty to charges of misconduct and he is entitled to the benefit of the plea, and to it being treated as a strong indication of remorse.
5. Like previous Boards and Tribunals, I am aware of the impact of any period of disqualification from practice on Mr Horak, and on his family members who are dependent on him; and I have been informed by Counsel that he cannot continue as a notary public if he does not have a practising certificate, but the protection of the public is paramount.
6. I also consider that his continued consultation with Dr Morris can only be of benefit to him. There was no substantiated evidence in this case that any mental illness was operative in the conduct before the Tribunal. I note that Counsel for Mr Horak expressly stated that a Verdins submission was not being made. I note also that there was evidence before the Solicitors' Board in 1994,[44] from Dr Kenny, that Mr Horak was not suffering from any mental illness at that time. But there is no doubt that Mr Horak suffers and has suffered greatly from the various and changing stresses of his life over the past 24 years.
7. I do not doubt the sincerity with which the various character witnesses have expressed their opinions on Mr Horak's character, integrity and insight but I am satisfied that in doing so they were not aware of the detail and significance of his past disciplinary history and the full extent of the conduct before this Tribunal. Professor Zablud acknowledged this to be so. Mr Wray frankly conceded that he had carefully considered whether he could maintain his opinion that Mr Horak was unlikely to re-offend, before doing so, with reservations.
8. I am also, unhappily, conscious that character evidence from practitioners and others of good standing has been given before. They have expressed the view that he is unlikely to re-offend and Mr Horak has, on each occasion, proven them wrong.
9. I take into account that in the last three years there have been only two complaints against Mr Horak, which have been dismissed.
10. As Counsel for Mr Horak correctly submitted, it is a relevant consideration that a practitioner has, since the events giving rise to misconduct charges, practised without incident.
11. In Clisby the fact that the practitioner had conducted his practice in a competent and professional manner for some seven or eight years after a two year period in which he engaged in unprofessional conduct was relevant. Here, however, the relevant period is just over three years, after a recent four-year period giving rise to 8 separate charges of misconduct, and two previous periods of misconduct serious enough to warrant cancellation. In that context, two or three years is not enough time to evidence a sufficiently sustained change in behaviour or character to demonstrate that Mr Horak has acquired the necessary quality of being fit and proper.
12. I remain concerned that Mr Horak does not now, and may never have, sufficient insight into his past conduct to ensure that he will not again engage in the sort of conduct that has led to two cancellations of his right to practice, and these charges before the Tribunal now. The explanation of the charges he appears to have given Professor Zablud indicates that Mr Horak lacks real insight into where his own integrity and conduct sits in relation to most other practitioners.
13. Mr Horak's September 2013 recount of relevant events echoes his letter to the LIV in 1989, as described by JD Phillips J, in its allegations of misconduct and impropriety against those who had made complaints against him.
14. He indicates a disturbing lack of awareness of why the LIV and the Commissioner would continue to investigate the Hellman complaint after it was withdrawn; continue to investigate the Crosswell complaint after Mr Horak paid Mr Crosswell $85,000.00; and would continue to investigate the Styles complaint after Mr Horak settled with Mr Styles. He appears to retain a capacity to minimise or fail to see his own responsibility for the conduct the subject of the complaints.
15. The document is troubling, even when treated as self-serving and generated out of internal frustration, as urged by Counsel for Mr Horak, and put in the context of a relapse of depression and anxiety, as described by Dr Morris.
16. I remain concerned that Mr Horak still has those traits of character observed by the Hon B L Murray: to be 'alive and well' in 1994 and which are 'absolutely incompatible with the proper conduct of a solicitor's practice.'[45]
17. I also regard specific deterrence as highly important in this case, and cannot ignore the fact that all available sanctions, short of removal from the roll, have failed to deter him, despite a clear warning given to him by the 1998 Tribunal that there is only one other sanction left untried.
18. I take into account his difficult personal circumstances at the time he resumed practise on the last occasion and over the subsequent period, and the medical evidence, but those circumstances do not sufficiently explain why he engaged in the breadth of the conduct he is charged with here.
19. More importantly in the context of specific deterrence, his personal circumstances do not account in any real way for the fact that Mr Horak has engaged in a repetition of some of the conduct notwithstanding the severity of the sanctions imposed on him in the past.
20. I remain concerned that Mr Horak does not have what Walters J in Sobey described as 'sufficient moral integrity and rectitude of character as to permit [him] to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails'. In short I am not satisfied that it is safe to allow him to continue in legal practice.
21. Mr Horak has demonstrated over the three periods of practice he has had as a lawyer, that he lacks, to paraphrase the High Court in Hughes and Vale Pty Ltd, the ability to execute the office of a legal practitioner without malice or partiality, the inherent or acquired knowledge to know what he ought duly to do, and the character to execute the requirements and fulfil the obligations of legal practice.
22. As Anderson J observed in Clisby:

The public is to be protected from legal practitioners who are ignorant of the basic rules of professional practice or who are indifferent to rudimentary professional requirements and standards.

1. I have reluctantly concluded that the appropriate determination in this case is that Mr Horak's practising certificate be cancelled and that he not be permitted to practise until at the earliest 2020, and that he not be permitted to practise as a principal for a further period of six years.
2. In Stirling, the Court of Appeal said that the Tribunal should impose separate penalties for each offence unless the charged conduct arises from a course of behaviour as opposed to a set of separate events.[46]
3. As Senior Member Smithers noted in Legal Services Commissioner v Telehus,[47] there is a sense of unreality in imposing separate penalties in relation to less serious counts, where the Tribunal is asked to or determines that an order cancelling the practitioner's practising certificate is appropriate for the more serious offences.
4. Nevertheless, with Stirling, in mind, I note that, in my view:
   • Charges 2,3,4 and 5 would each warrant a reprimand, fine, and some ongoing supervision of Mr Horak's trust account and practice;
   • Charge 8 (the Styles and Crosswell bills) would warrant a reprimand, fine and a condition, such as in Quinn, that there be ongoing monitoring of bills of costs over a certain amount.
   • Each of charges 1, 6 and 7, would warrant suspension or cancellation of Mr Horak's practising certificate.

1. In this case, my overall assessment is that it is appropriate to refer the question of whether Mr Horak should remain on the roll of local practitioners to the Supreme Court.
2. The Tribunal will usually make such a recommendation if it considers, as I do, that there is a reasonable prospect that the Court will make the order and/or the circumstances are such that a removal order appears to be called for and the question ought to be referred to the Court for consideration. As noted earlier it is entirely a matter for the Court to make such a decision.
3. It would appear from the decision of the majority in _Clisb_y, that when the Court is considering whether a practitioner should be disbarred/struck off the roll, a succeeding period of professional conduct while not irrelevant, becomes a secondary consideration:

[48] In considering whether a practitioner should be disbarred the ultimate question is to be answered by establishing what the practitioner did and then characterising the conduct in order to determine whether he or she is disqualified from the practise of the profession."

1. The majority in Clisby further observed[49]

While we do not put aside the manner in which the practitioner has conducted himself in practice in the years since his offending conduct occurred and the fact that his fitness to practise is to be decided at the time of the hearing, the Court nevertheless has to consider the maintenance of public confidence in the profession and must ensure that only those who have observed the required standards are permitted to remain members of the legal profession.

1. In determining that I should make the recommendation to the Supreme Court, I am mindful of the need to maintain public confidence that professional standards are being upheld and note the factors outlined by the Court in Clisby at [8-9].
   • The misconduct in this case is serious;
   • It demonstrates a fundamental breach of Mr Horak's professional obligations;
   • His conduct is of such kind that, if tolerated, would bring the legal profession into disrepute;
   • The conduct amounted to an abuse of the privileges which accompany a practitioner's admission to the Court;
   • There is a need to protect the public from unprofessional practitioners; and
   • The public must be protected from legal practitioners who are ignorant of the basic rules of public professional practise or indifferent to rudimentary professional requirements.
2. In making the recommendation, I am mindful of the steps taken by Mr Horak in recent times but remain concerned that no amount of supervision, short of direct and close one-to-one supervision, could overcome Mr Horak's defects of character, and in any event cannot ignore that he has in the past sought to evade the restrictions of an employee practising certificate.
3. If this were the first time that Mr Horak had come before the Tribunal, the seriousness of the charges, and the nature and breadth of the offending conduct, would squarely raise the question of whether he is a fit and proper person to hold a practising certificate. The progress he has made under Mr Wray's mentorship would weigh in favour of imposing conditions on any practising certificate rather than suspending or cancelling his practising certificate. The Tribunal might well consider a requirement that Mr Horak practise only as an employee for a period of years to ensure the required supervision was in place. Some hesitation might be expressed about his future fitness but an opportunity given to demonstrate that he has learned his lesson.
4. But this is the third time that Mr Horak has come before the Tribunal or its predecessors. He has suffered two significant periods of cancellation. The first was not sufficient deterrence to him re-offending. And when he resumed practice, having been granted an employee practising certificate with some reservations expressed by Hedigan J, he not only re-offended but also set out to avoid the restraints of an employee practising certificate by entering into a sham employment agreement. His practising certificate was then cancelled, for the second time. On resuming practice, he has then re-offended in wide-ranging and serious ways.
5. The Tribunal is not looking back and seeking to inflict further punishment on Mr Horak. It is looking to the future with past experience in mind. With that in mind, my overall assessment is that Mr Horak has demonstrated over a long period that he lacks some of the essential qualities of a legal practitioner, and either has not learned to acquire them or does not have the capacity to do so. He was given two significant opportunities to learn from his mistakes, to acquire a real understanding of the significance of standards of practice, and to see clearly where he went wrong. He was not able to do so, and appears unable to do so.
6. On each occasion penalty has been considered, his personal circumstances have been raised as a mitigating factor, but on each occasion they have been different, leading to a conclusion that it is not his personal circumstances but his character that leads him to re-offend.
7. On a number of previous occasions in a number of contexts, the Board, the Court and the Tribunal have expressed reservations about allowing Mr Horak to practise law but have allowed for the possibility of change. A clear warning was given by the Tribunal in 1998 that there were no remaining sanctions short of being struck off the roll.
8. It is rare for there to be such compelling evidence that past serious sanctions have failed to deter a practitioner from re-offending.
9. I have taken into account that Mr Horak has practised without incident since he has had the benefit of a mentor. But I am not satisfied that even now he has sufficient insight into his past behaviour, nor am I satisfied that he has overcome longstanding traits of character which are incompatible with the obligations and execution of the office of a legal practitioner. I do not consider that he may safely be accredited to the public as a person fit to hold the licence.
10. I will make an order that Mr Horak not be granted a practising certificate before 13 May 2020 and that for a period of 6 years after any practising certificate is issued to Mr Horak in the future, it must be subject to the condition that he not be able to act as a principal, or hold trust monies. I will also make an order recommending to the Supreme Court that Mr Horak's name be removed from the local roll.

[1] [2014] HCA 2, 12 February 2014.

[2] French CJ, Hayne J, Kiefel J and Bell J, at [23].

[4] Quinn v Law Institute of Victoria [2007] VSCA 122 at [31].

[6] Stirling v Legal Services Commissioner [2013] VSCA 374.

[7] Legal Services Board v McGrath(No. 2) [2010] VSC 332, per Warren CJ

[8] Legal Services Commissioner v Rushford [2012] VSC 632, at [11]-[12]

[9] See the overview of the relevant cases in Legal Services Commissioner v Telehus [2014] VCAT 24 at [6] - [11].

[10] Legal Practitioners Conduct Board v Clisby, ibid at [9], citing A Solicitor v Law Society (NSW) [2004] HCA 1; (2004) 216 CLR 253 at 268 [21].

6. Legal Services Board v McGrath (20[1]0) 29 VR 325 at 329. The protection extends 'beyond the public to include the legal profession as a group, the courts, the justice system and community confidence in that system'.

[11] Victorian Lawyers RPA v Yvonne Grace Young [2001] VSC 28 at paragraph 28.

[12] Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 471.

[13] [2012] SASFC 43 at [10] per Doyle CJ and Stanley J

[14] [2010] VSC 266; (2010) 29 VR 325

[15] (1979) 22 SASR 70 at 76,

[16] See Legal Services Board v McGrath [2010] VSC 266; (2010) 29 VR 325 at 330, Warren CJ

[17] Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) CLR 127 at 156-157, cited in McGrath at 330.

[18] Exercising its powers under section 4.4.11(1)(b) of the Act

[19] Obligation to provide documents if required by an investigating authority.

[20] Obligation to keep trust records in accordance with the regulations, in a way that at all times discloses the true position in relation to trust money, in a way that enables the trust records to be conveniently and properly investigated or externally examined and for a period determined in accordance with the regulations.

[21] Withdrawal of monies in trust to pay costs can only be made after a written request for payment or written notice of withdrawal, or after a bill has been provided and the client has not objected in accordance with the regulations or the money otherwise becomes legally payable.

[22] Obligation to comply with the relevant procedures prescribed by the Act and the regulations in withdrawing trust money to pay legal costs owing.

[23] [1988] NSWCA 102 at p 9 (per Kirby P) and p. 19 (per Samuels JA)

[24] At p. 22. See also Legal Services Commissioner v Brondolino [2012] Victorian Civil and Administrative Tribunal 1995.

[25] [2012] VCAT 1731

[26] Legal Services Commissioner v Horak [2009] VCAT 895.

[27] Legal Services Commissioner v Horak [2009] VCAT 894

[28] Legal Services Commissioner v Horak [2009] VCAT 2344.

[30] Jan Antonin Alois Horak v The Secretary of the Law Institute of Victoria unreported 18 October 1991 at page 6

[31] Jan Antonin Alois Horak v The Secretary of the Law Institute of Victoria unreported, 25 October 1991 (decision on penalty) at page 7

[34] Jan Antonin Alois Horak v The Secretary of the Law Institute of Victoria and The Solicitors Board of Victoria, unreported 17 July 1995

[37] Per Harper J, Morris v Psychologists Registration Board (Unreported Victorian Supreme Court decision), BC9707354, 19 December 1997 at p.25, cited in Legal Services Commissioner v Brott [2008] VCAT 2399 (24 November 2008) at [49].

[38] See Quinn v Law Institute cited above. See also R v Verdins [2007] VSC 102: impaired mental functioning whether temporary or permanent is relevant to sentencing. I note that Counsel for Mr Horak said that no 'Verdins' submission was made. The Tribunal is nevertheless required to take it into account.

[39] Quinn and Verdins, noted above.

[41] Stirling v Legal Services Commissioner [2013] VSCA 374 at [75]

[42] [2014] VCAT 24

[43] A practitioner who fails to demonstrate the required insight, 'ought not, if the public is to be protected, be allowed to practise.' Per Harper J, Morris v Psychologists Registration Board (Unreported Victorian Supreme Court decision), BC9707354, 19 December 1997 at p.25, cited in Legal Services Commissioner v Brott [2008] VCAT 2399 (24 November 2008) at [49].

[45] Reasons for decision, 29 March 1994 Solicitors' Board No: 80 of 1994

[46] [2013] VSCA 374 at [75]

[47] [2014] VCAT 24, citing Law Institute of Victoria v Brott [2008] VCAT 1998 at [48-51]

[48] (Referring to the observations of Fullagar J in Ziems v The Prothonotary of the Supreme Court of New South Wales)