The respondent having pleaded guilty to a charge of professional misconduct within the meaning of section 4.4.4(a) of the Legal Profession Act 2004 in that in the course of engaging in legal practice he engaged in a course of conduct of which he contravened Rule 1.1 of the Professional Conduct and Practice Rules 2005 by failing to act honestly and fairly in his client's best interests, the Tribunal finds him guilty as charged and orders him to pay a fine of $2,000.00 to the Legal Services Board by 15 July 2008.

The respondent having pleaded guilty to a charge of professional misconduct within the meaning of section 4.4.4(a) of the Legal Profession Act 2004 in that in the course of legal practice he engaged in a course of conduct by which he contravened Rule 1.2 of the Professional Conduct and Practice Rules 2005 by failing to use his best endeavours to complete legal work as soon as reasonably possible, the Tribunal finds him guilty as charged and orders him to pay a fine of $1,000.00 to the Legal Services Board by 15 July 2008

1. Further, the respondent is ordered to engage at his own expense the services of Mr Geoffrey Gronow or such other person to be nominated by the President of the Law Institute of Victoria to engage in counselling sessions at least once a month over a period of 12 months commencing in one month of today and at such sessions to discuss all files being conducted by the respondent. Further, the respondent is to authorise Mr Gronow or such other nominee of the President of the Law Institute of Victoria to report to the Legal Services Commissioner if so requested to do so by the Legal Services Commissioner.
2. The respondent is further ordered to undertake counselling sessions with a registered practising psychologist at least once per month over a 12 month period commencing within one month of today.
3. The respondent is further ordered to identify such psychologist to the Legal Services Commissioner and is to authorise such psychologist to report to the Legal Services Commissioner if so requested to do so by the Legal Services Commissioner.
4. The respondent is ordered to pay to the Legal Services Commissioner its costs of this application fixed by the Tribunal at $3,700.00 by 15 July 2008.

1. This is an application brought by the Legal Services Commissioner in relation to the conduct of Mr Bernard Horsley, lawyer. The application concerns three charges brought against Mr Horsley. The particulars alleged in relation to each of the three charges are contained within paragraphs 12 to 17 of the particulars set out in relation to Charge 1.
2. Mr Horsley has admitted the facts and indeed pleaded guilty as charged. It is useful to set out the allegations as set out in the particulars.

In or about late 2001 or early 2002 the respondent was engaged by relatives of Angelo Joseph Cachia (deceased) to make among other applications, applications on their behalfs for compensation to the Victims of Crime Assistance Tribunal ('VOCAT') pursuant to the Victims of Crime Assistance Act 1996.

During 2003, the respondent lost or mislaid the file relating to the said applications for compensation.

The respondent did not tell his clients that their file had been lost or mislaid, and did not take appropriate steps to reconstitute it and, in particular, to obtain copies of the application and other documents held on the file at VOCAT.

Throughout 2004 and 2005, despite enquiries from his clients, the respondent still did not acquaint them with the true facts.

On 18 August 2004 the respondent's clients' applications were struck out by VOCAT.

Between September 2005 and February 2006, in the course of communicating with his clients, the practitioner deliberately misled them by:

1. Informing his clients that the VOCAT was considering making an 'offer' of an award of compensation in relation to the said applications; and
2. In response to an enquiry as to the progress of the matter, informing his clients in September 2005 that VOCAT was close to making an 'offer' of an award of compensation.

1. Informing his clients in December 2005 that he had received an 'offer' of an award of compensation of $15,000 for the parents of the deceased and $3,000 for his siblings; and

1. Later in that year advising his clients to decline the 'offer' and to seek a hearing date; and
2. After they had declined the 'offer' of an award of compensation in accordance with his advice, informing his clients that VOCAT had set the applications down for hearing on a date in April 2006; and
3. Informing his clients in February 2006 that VOCAT had set 17 March 2006 as a hearing date. The respondent later amended this to 17 April 2006 and, when informed by one of his clients that this was Easter Monday, said that the hearing date was actually 18 April 2006.

In circumstances where those statements were completely false and untrue and where the applications for compensation had in fact been struck out by VOCAT in August 2004.

1. The first charge is one of misconduct at common law within the meaning of paragraph 1(a) of the definition of professional misconduct in Section 4.4.3 of the Legal Profession Act 2004 in that the respondent's conduct involved substantial or consistent failure to reach or maintain a reasonable of competence and diligence.
2. The second charge is one of professional misconduct within the meaning of Section 4.4.4(a) of the Legal Profession Act 2004 in that the course of engaging in legal practice, the respondent engaged in a course of conduct by which he contravened Rule 1.1 of the Professional Conduct and Practice Rules 2005 by failing to act honestly and fairly in his client's best interests.
3. Charge 3 is that one of professional misconduct within the meaning of Section 4.4.4(a) of the Legal Profession Act 2004 in that in the course of engaging in legal practice, the respondent engaged in a course of conduct by which he contravened Rule 1.2 of the Professional Conduct and Practice Rules 2005 by failing to use his best endeavours to complete legal work as soon as reasonably possible.
4. Returning to Charge 1, the misconduct which is alleged is misconduct at common law, also known as misconduct in a professional capacity which is preserved by the use of the word 'includes' in the definition of professional misconduct contained in Section 4.4.3 of the Legal Profession Act 2004.
5. Misconduct in a professional capacity, often described as misconduct at common law, has been defined consistently for many years as conduct in a professional capacity which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency: see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 where the definition was formulated in a case involving a medical practitioner; Re a Solicitor: ex parte The Law Society [1912] 1 KB 302 where the definition was adopted in a case involving a solicitor; Myers v Elman [1940] AC 282 where the definition was approved by the House of Lords and Grahame v AG of Fiji [1936] 2 All ER 992 where the definition was approved by the Privy Council; and Re a Solicitor [1960] VicRp 96; [1960] VR 617 where the definition was applied in Victoria.
6. The standard of proof of misconduct is the normal civil standard of a balance of probabilities, but it is necessary to take into account matters of the kind mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The following passages from Briginshaw's Case are relevant:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. (@ 361.)

The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. (@ 362.)

1. I find myself on the horns of a dilemma in relation to Charge 1. Whilst the legal practitioner Mr Horsley has pleaded guilty as charged to misconduct at common law I feel a certain unease in finding that the failure to reach or maintain a reasonable standard of competence and diligence constitutes conduct which would be reasonably regarded as disgraceful or dishonourable by professional colleagues of good repute and competence. However, I am bound by the plea of guilty. I therefore find the charge proved.
2. Whilst it is clear that Mr Horsley's actions arise from a failure to reach or maintain a reasonable standard of competence and diligence it is also true that his actions in misleading his clients as to what had taken place and what had not taken place clearly involve a failure to act honestly and fairly in the clients' best interests.
3. Charge 2 is manifestly correct and proven.
4. Charge 3 is that he failed to use his best endeavours to complete legal work as soon as reasonably possible. I find Charge 3 and Charge 1 overlap to a considerable extent but that Charge 2 stands alone, it being the act of dishonestly misleading the clients. It must be said that in misleading those clients Mr Horsley has struck at the heart of the professional relationship between lawyer and client. This must be a relationship of absolute honesty. The lawyer and the client must be as one. In doing what he did Mr Horsley has betrayed his clients, not just their trust. He has damaged himself, he has damaged his profession and he has damaged, most importantly, his clients.
5. I have received in a plea in mitigation considerable material in relation to Mr Horsley. He is not an inexperienced practitioner. He is a man in his 50s who has been practising for many years. To his credit thus far, there has been no disciplinary matter recorded against his name. His counsel put before the Tribunal a report from Mr C.S. Economou, a practising psychologist as to some counselling which has taken place with Mr Horsley. There has also been placed before the Tribunal a character reference in writing from Mr John Natoli, a legal practitioner and in addition viva voce evidence of a character nature was given by Mr Ian McEachern of counsel.
6. It has also been said that Mr Horsley is a practitioner who has not enjoyed great financial success and that he has been grappling with the pressures of practice. It is worthy of note that these charges arise from a time when Mr Horsley was not a sole practitioner. He is now a sole practitioner. His situation has not improved. The financial situation of Mr Horsley's household is not a great one. It would appear that but for the earnings of his wife there would be severe financial difficulties. As it is, things are not easy. It would appear that the family household earnings are less than the outgoings, there are two children still at school and school fees are being paid in relation to those two children and there is a mortgage on the house. It has been stated that Mr Horsley has needed to access his superannuation in order to maintain a living. It is quite clear that there are financial pressures.
7. It has been submitted on behalf of the Legal Services Commissioner that the appropriate disposition is to cancel or suspend Mr Horsley's practising certificate. I have concluded that this is more severe than is necessary. It was submitted on behalf of Mr Horsley that removal of his practising certificate would be disproportionate and I must agree with that submission. There have been before this Tribunal and its predecessor practitioners who have been found guilty of greater transgressions than Mr Horsley whose practising certificates have remained intact. Having said that it is clear that the duty of this Tribunal is not to punish the legal practitioner but to protect the public. It is in my view possible to protect the public without removing Mr Horsley's practising certificate. I therefore do not intend to do so.
8. It has also been suggested that Mr Horsley's practice be restricted to one of acting for families, the members of whom Mr Horsley presently acts. This is an unsatisfactory suggestion simply because there is a lack of certainty of the identity of clients given that families may contain any number of persons and also because that really serves no purpose. Mr Horsley would still be acting for clients be they members of those families or others. I do not propose to restrict Mr Horsley's practising certificate in relation to limiting it to certain members of the public.
9. Further, it has been suggested that Mr Horsley's practising certificate be cancelled and that he be only allowed to obtain an employee certificate. There is no present suggestion of a job offer and I am mindful of Mr Horsley's financial and family situation. I do not propose to pursue that course of action.
10. In my view the purpose of protection of the public may be achieved by placing certain requirements on Mr Horsley. Whilst the role of the Tribunal is not to punish, I am of the view that it is appropriate that fines be imposed in relation to these charges.
11. In relation to Charge 1 the respondent, Mr Horsley is ordered to pay a fine of $1,000.00 to the Legal Services Board. In relation to Charge 2 the respondent is ordered to pay a fine of $2,000.00 to the Legal Services Board. In relation to Charge 3 the respondent is ordered to pay a fine of $1,000.00 to the Legal Services Board.
12. Further, the respondent is ordered to engage at his own expense the services of Mr Geoffrey Gronow or such other person to be nominated by the President of the Law Institute of Victoria to engage in counselling sessions at least once a month over a period of 12 months commencing in one month of today and at such sessions to discuss all files being conducted by the respondent. Further, the respondent is to authorise Mr Gronow or such other nominee of the President of the Law Institute of Victoria to report to the Legal Services Commissioner if so requested to do so by the Legal Services Commissioner.
13. The respondent is further ordered to undertake counselling sessions with a registered practising psychologist at least once per month over a 12 month period commencing within one month of today.
14. The respondent is further ordered to identify such psychologist to the Legal Services Commissioner and is to authorise such psychologist to report to the Legal Services Commissioner if so requested to do so by the Legal Services Commissioner.
15. The Legal Services Commissioner seeks payment of costs of $3,700.00 and no objection has been made by the respondent. Accordingly, the respondent is ordered to pay to the Legal Services Commissioner its costs of this application fixed by the Tribunal at $3,700.00.
16. In relation to both the fine and the costs payment is to be made by 15 July 2008.
17. In relation to the witness fee sought, I am not going to award that because the witness was not called and there is some suggestion that the witness would not suffer any financial detriment by attending today.