1. The matter is set down for a hearing on the question of what orders should be made following this determination, on 5 October 2012, at 10.00am at the William Cooper Justice Centre, corner of William and Lonsdale Streets, Melbourne.
2. By 2 October 2012, Mr Johnson is to file and serve on the applicant any reports or other written material he wishes to put before the Tribunal at the hearing on 5 October 2012.

1. The effective operation of the legal system depends on legal practitioners conducting themselves in a manner which, at least to a minimum extent, conforms with conventions of civility and respect which have evolved over hundreds of years. The Legal Services Commissioner (LSC - the applicant) has brought three charges of professional misconduct under the Legal Profession Act 2004 (the Act) against Mr Johnson, a legal practitioner. They relate to Mr Johnson's conduct of his own family law proceedings. In these, he filed four affidavits which the LSC alleges "used language which could variously be described as intemperate, discourteous, vulgar, provocative and/or offensive".
2. Mr Johnson was admitted to practice as a legal practitioner in 1990. He worked as a commercial lawyer with Corrs Chambers Westgarth, then, from 1994 to 1999, at Minter Ellison. From 1989 to 2007 he worked as part-time legal counsel for Barwon Water. At the same time he also conducted his own practice. This also ceased in 2007. He was in a de facto relationship with Ms Pippin Cressy from the late 1990s until about Easter 2007. That relationship broke down. This application concerns his conduct in acting for himself in family law proceedings relating to that relationship in 2008-2009. In the Federal Magistrates Court's decision of 6 February 2009 Federal Magistrate O'Dwyer referred Mr Johnson's conduct as litigant in person in those proceedings to the LSC, and requested the "Commissioner to investigate the suitability of the father [Mr Johnson] to continue to hold a practising certificate". The LSC has brought three charges against Mr Johnson under the Act relating to the content of four affidavits he filed in those proceedings.
3. There have been eight separate hearing days of different types in this proceeding: five directions hearings, one hearing at which 57 subpoenas issued at Mr Johnson's request to prominent persons were overturned, and two days of substantive hearing (21 May and 3 September 2012). Of these, Mr Johnson only appeared at two of the directions hearings, and the first day of the substantive hearing. He did, however, send very extensive correspondence to the Tribunal during the period of April to September 2012. The substantive hearing was adjourned at his request after lunch on the first day, 21 May 2012. A resumption date of 3 September 2012 was set. Numerous orders relating to interlocutory matters were made and extensions of time provided for. However, in the circumstances explained in detail below, applications for adjournment of 3 September 2012 hearing for three months, to enable Mr Johnson to call 100-200 witnesses at the resumed hearing, which he said would last at least 100 days, were refused.
4. A finding of professional misconduct at common law and breach of rule 21 of the Professional Conduct and Practice Rules 2005 was made on 3 September 2012. These are the reasons for that finding.

REFERRAL TO THE LEGAL SERVICES COMMISSIONER BY FEDERAL MAGISTRATE

1. Paragraphs 65-67 of the Federal Magistrate's decision state as follows:

1. Counsel for the mother, both at the final hearing and in an earlier hearing, strongly pressed for me to refer the conduct of the father to the Legal Services Commissioner on the basis that I had a duty to do so. The ground for referral was said to arise from the manifest unacceptable behaviour of the father in relation to his conduct in this proceeding and the nature of the, at times, unbridled and baseless accusations against legal practitioners, judicial officers and the family report writer. It was said that it was incumbent upon me to ensure that a person holding a current practising certificate, as the father apparently does, must be a fit and proper person to hold such a certificate for the protection of members of the community for whom the father may act, and the standing of the legal profession generally.
2. Whilst I am reluctant to give any appearance that I might be acting on the urging of the mother, which appearance may very well be interpreted by the father as something other than an independent response reasonably expected from a judicial officer determining a matter at final hearing, and although I have some concerns about appearing, certainly from the father's perspective, of entering into the "bear pit", I am nonetheless persuaded that the request of the mother's Counsel is, in all the circumstances of this case, a proper one to make and a proper one for me to act upon.
3. Accordingly, I intend to refer this judgment to the Legal Services Commissioner in the State of Victoria, and request the commissioner to investigate the suitability of the father to continue to hold a practising certificate, for the following reasons:
   • The very serious accusations made by the father against a number of judicial officers without any apparent basis; including, but not confined to, accusations of corruption;
   • The very serious accusations made by the father against Dr List, appointed to prepare the family report in this matter, without any apparent basis and including, but not confined to, accusations of corruption.
   • The very serious accusations made by the father against the legal practitioners appointed as Independent Children's Lawyers without any apparent basis;
   • The very serious allegations made by the father against the legal practitioners acting from time to time for the mother;
   • The extremely intemperate language used by him in his Court documents.
   • ...
   • Threats made to the Court, especially in his affidavit of 29 August 2008;
   • The threats made to judicial officers, Dr List and the legal practitioners representing the mother, to report them to various regulatory bodies, apparently with a view to affecting their decisions and continued involvement in proceedings involving him;
   • ...
   • ...
   • ...
4. Accordingly, I shall direct the registrar of this Court to forward a copy of the following documents to the Legal Services Commissioner of Victoria;
   1. This judgment.
   2. The final orders made this day.
   3. Copies of the reports of Dr Entwisle and Dr List.
5. I have excluded the text of four of the dot points in paragraph 67 of the judgement, as they relate to conduct which is not reflected in the charges brought to VCAT by the LSC.

1. The LSC's Application for Order, as amended by the provision of Further and Better Particulars provided on 4 June 2012 (shown as underlined or strike out text) is as follows:

I apply to the Victorian Civil & Administrative Tribunal (the Tribunal) pursuant to section 4.4.13(2) of the Legal Profession Act 2004 (the Act) for an order under Division 4 of Part 4.4 of the Act in respect of the Respondent.

(a) at all material times the Respondent was an Australian legal practitioner within the meaning of the Act, alternatively a legal practitioner within the meaning of the Legal Practice Act 1996 (Vic) (1996 Act), having first been admitted to practice in 1990; and

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

1. On 17 March 2009 the Legal Services Commissioner (the Commissioner) decided to commence an own motion investigation into the conduct of the Respondent pursuant to section 4.4.8 of the Act. The own motion investigation that was commissioned related to the matter of Johnson & Cressy & Laitey , MLC 10308/2007, which involved the Respondent's own family law proceedings. During the proceedings the Respondent acted on his own behalf. His Honour Federal Magistrate O'Dwyer was the presiding Magistrate. Mr Graham Devries, a member of the Victorian Bar, acted on behalf of the Respondent's de facto wife, Ms Pippin Cressy. There was one child born during the relationship. Mr Mathew Laitey was formerly in a de facto relationship with Ms Cressy. There were two children of that union. The three children were separately represented by an Independent Children's Lawyer, appointed by the Court. Mr Laitey was not legally represented during the proceedings.
2. In a separate action regarding the division of property, Ms Cressy issued proceedings against the Respondent in the Supreme Court of Victoria. As in the Federal Magistrates Court, the Respondent there acted on his own behalf. Mr Devries appeared for Ms Cressy. His Honour Justice Kaye handed down his decision on 25 February 2009 (Cressy v Johnson (No. 3) [2009] VSC 52).
3. Judgment of Federal Magistrate O'Dwyer was given on 6 February 2009 (Johnson & Cressy & Anor [2009] FMCAfam 77) (Annexure 1). At paragraphs [65] to [68] His honour deals with the conduct of the Respondent in the proceedings before him, and his decision to refer the matter to the Commissioner.
4. The Commissioner advised the Respondent of the investigation, by letter dated 26 February 2010 (Annexure 2). The letter, addressed to the Respondent's last address for service as defined in the Act, 141 Osborne Street, South Yarra, contained the judgment transcript of the family law proceedings conducted on 8 September 2008 (Annexure 3) and 9 September 2008 (Annexure 4), an affidavit sworn by the respondent on 29 August 2008 and filed in the proceedings (Annexure 5), and a media release issued by the respondent dated 7 April 2009. Pursuant to section 4.4.11(1)(a), the letter requested that the Respondent provide a full written explanation within 16 days.
5. The Respondent did not reply. On 11 May 2010 the Commissioner sent a further letter to the Osborne Street address, this time by Registered Post. The letter requested a full written explanation within 16 days (Annexure 6). The letter was returned with a notation "No longer @ this address" (Annexure 7).
6. Mr Kevin Power of the Commissioner's office attempted to contact the Respondent by telephone on 2 July 2010 and 8 July 2010, and sent an email to him on 8 July 2010 (Annexure 8).
7. The Respondent replied to these messages by a facsimile dated 12 July 2010 (Annexure 9). He did not acknowledge receipt of the earlier correspondence, nor did he address the substance of the investigation.
8. By letter dated 30 November 2010, after further consideration of the matter, the Commissioner wrote to the Respondent and, inter alia, invited him to submit within 16 days any further material that he wished to be considered prior to the Commissioner making a decision in this matter. The letter was sent by Registered Post, to the Osborne Street address, but was again returned with a notation "No longer @ this address".
9. After some time the Commissioner obtained new addresses for the Respondent, 2 Dorrington Street, Point Cook and PO Box 6137, Point Cook. The Commissioner sent the Respondent a letter dated 5 August 2011 to both of these addresses (Annexure 10). This letter set out the results of the investigation and offered the Respondent the opportunity to respond or place any further material before the Commissioner prior to a decision being made.
10. The Respondent replied in a number of letters, by facsimile, dated 29 August 2011 (Annexure 11), 30 August 2011 (Annexure 12), and twice on 2 September 2011 (Annexure 13). The Respondent requested that any correspondence from the Commissioner be forwarded to the Post Office address of PO Box 6137, Point Cook, 3030.
11. The Commissioner responded, in a letter dated 6 September 2011 (Annexure 14). Amongst other things, this letter enclosed a copy of the letter and annexures which the Commissioner had sent to the Respondent on 26 February 2010 at the Osborne Street address. The letter also enclosed a copy of the 11 May 2010 letter. The Respondent was given until 23 September 2011 to provide a complete response. He was put on notice that unless such a response was received, the Commissioner may proceed to make a decision based on the material then available to him.
12. Further correspondence was received by the Respondent on 11 October 2011, however the contents of his letter were extraneous and did not relate to the issues raised in the investigation.

1. In four affidavits filed by the Respondent in the abovementioned Federal Magistrates Court proceeding, the Respondent used language which could variously be described as intemperate, discourteous, vulgar, provocative and/or offensive. The affidavits referred to are dated 28 27 May 2008 (Annexure 15), two dated 20 August 2008 (Annexures 16 & 17), and the one dated 29 August 2008 (Annexure 5 referred to above).
2. These four annexures are relied on in their entirety. Without limiting the particulars, the language referred to includes accusations that:

(i) Federal Magistrate O'Dwyer had engaged in improper conduct during various hearings, was [guilty of] misconduct, and was corrupt (Annexure 5, page 13, paragraphs 21 to 23 page 26 paragraph 29.4.v.1, page 28 paragraph 29.5, page 30 paragraph 29.10-11, page 39 heading to paragraph 35);

(ii) Justice Cavanough (who presided over the Practice Court at one stage during the property litigation in the Supreme Court) and other unnamed judges of the Supreme Court were patently biased, prejudiced and [guilty of] improper conduct (Annexure 5, page 13, paragraph 20);

(iii) counsel for Ms Cressy, Mr Graham Devries, was unethical, corrupt, had deliberately misled Federal Magistrate O'Dwyer and/or judges of the Practice Court in the Supreme Court, had been a party to procuring affidavit material from a witness knowing it to be false and was not a fit and proper person to be a member of counsel (Annexure 16, page 2 paragraph 2, page 9 paragraph 11, page 29 paragraphs 48-49, page 24, paragraphs 36 and 37; page 32, paragraph 52, sub-paragraph b; page 36, paragraph 56); Annexure 5 page 21 paragraph 28.4.b, paragraph 29.4.v.1, page 27 paragraph 29.4.v.3.iii, page 31 paragraph 29.13c, Annexure 15 page 9, Annexure 17 page 3 paragraph 5);

(iv) solicitors acting for Ms Cressy (in the family law and/or property proceedings) and/or those acting for the children were unethical, self-interested, corrupt, blackmailing individuals, some of whom had procured affidavit material from a witness, knowing it to be false (Annexure 5 page 4 paragraph 4.c, page 5 paragraph 5.d, page 8 footnote 8.2, page 10 paragraph 12 page 12, paragraphs 17 and 19, page 16, paragraph 8, sub-paragraph c iii-v)-page 21 paragraph 28.4.b, page 38 paragraphs 33-34, page 59 paragraph 39, Annexure 15 paragraph 9, Annexure 16 page 2 paragraphs 2, 2A heading and CA.c, page 17 heading to paragraph 18, Annexure 17 page 3 paragraph 5)

1. The affidavit dated 29 August 2008 contained the text of facsimiles sent by the Respondent to Westminster Lawyers, who were then acting for the children. Amongst other things, the Respondent claimed in this text that Dr David List, a clinical psychologist who prepared a report for the Federal Magistrates Court concerning the children, was unethical and unprofessional, and was a person whose sobriety and sanity was in question. It was also suggested by the Respondent that Dr List "got a perverse sexual kick out of writing up Pippin's mad lies about me" (see for example sub-paragraph 8 on page 22 of Annexure 5, see also page 26 paragraph 29.4.iv, page 33 paragraph 23c).
2. Further, in the affidavit dated 29 August 2008 (Annexure 5), in the same text of facsimiles, the words "fuck" and "fucking" were used on a number of occasions (see for example paragraph 27, sub-paragraph 16cii on page 18, paragraph 28, sub-paragraph 4c on page 22, and sub-paragraph 15 on page 23).

Following an investigation I am satisfied that, in the circumstances, there is a reasonable likelihood that the Victorian Civil and Administrative Tribunal will find the Respondent guilty of professional misconduct. Pursuant to section 4.4.13(2) of the Act I now make application to the Victorian Civil and Administrative Tribunal for determination of the following charges and consequential orders:

Professional misconduct being misconduct at common law and within the meaning of section 4.4.3(1) of the Act, in that the Respondent's conduct would reasonably be regarded as disgraceful and dishonourable by legal practitioners of good repute and competency.

I refer to and repeat the allegations set out in paragraphs 13-16.

Further, or in the alternative to Charge 1, professional misconduct within the meaning of section 4.4.3(1)(b) of the Act, by engaging in conduct, otherwise than in connection with the practice of law, that justifies a finding that the Respondent is not a fit and proper person to engage in legal practice.

I refer to and repeat the allegations set out in paragraphs 13-16.

Professional misconduct within the meaning of section 4.4.4(a) of the Act in that, contrary to Rule 21 of the Professional Conduct and Practice Rules 2005, in all his dealings with other practitioners, the Respondent failed to take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that his communications were courteous and that he avoided provocative language or conduct.

I refer to and repeat the allegations set out in paragraphs 13-16.

You are referred to Divisions 4 and 5 of Part 4.4. of the Act.

NOW TAKE NOTICE that pursuant to Section 4.4.15 of the Act this Application will be heard and determined by the Victorian Civil and Administrative Tribunal at a time and place appointed in writing by the Tribunal.

1. The documents attached to the LSC's application included the four affidavits referred to, and exhibits (in the case of three of them) as follows:
   • Affidavit dated 27 May 2008, of 13 pages, with 36 pages of exhibits.
   • First affidavit of 20 August 2008, of 38 pages, with 56 pages of exhibits.
   • Second affidavit of 20 August 2008, of 23 pages with 48 pages of exhibits.
   • Affidavit of 29 August 2008, of 59 pages (with no exhibits).
2. The affidavits were made in support of his applications relating to his former de facto partner's alleged non-compliance with court orders, and generally in support of his application for his daughter to reside with him. The exhibits include submissions and correspondence between himself and others in relation to the family law and Supreme Court proceedings, other affidavits (sworn and unsworn), his curriculum vitae, and two media releases by Mr Johnson. I refer to the four affidavits and exhibits attached, appended to the LSC's application to VCAT as the "affidavit material".
3. Much of the affidavit material is generally expressed in language which is judgmental and pejorative. The parts quoted below set out some of the most serious accusations made against the persons involved in his family law and Supreme Court proceedings: his former de facto partner, the solicitors and barristers who acted for her, the psychologist who wrote the Family Report for the family law proceedings, the Federal Magistrate and Supreme Court Judges. Otherwise, the affidavit material contains numerous derogatory and outlandish statements. It exhibits a strong sense of bitterness towards those opposed to his interests.
4. The flavour of the affidavit material is illustrated by the following extracts.

1. In this affidavit, Mr Johnson said at one point:

In passing I might comment, considering specifically the abovementioned letter penned by Mr David Hanlon, that never prior to these set of proceedings in which I am client, solicitor and advocate (and not by choice any of the three), never have I in all of the 18 full years since I swore my oaths of allegiance and admission and become a Barrister and Solicitor of the Courts of this State and this Federation, have I come across so many lawyers, and I single out for specific mention Mr David Hanlon of Harwood Andrews, Mr Richard Ingleby of the Victorian Bar and Mr Graeme DeVries of the Victorian Bar (professional misconduct complaints pending) who are so freely and gleefully willing to tell outright lies notably to Supreme Court Justices, to advance any client's case. This is perhaps all the more astonishing given the obvious lack of character and credit in the First Respondent's disposition and methods. Or perhaps, lies being part of the First respondent's stock in trade, her legal counsel past and/or present have been contagioned or simply are not wanting to be outdone by her in that regard either?

1. Mr Johnson said of his former de facto partner: "The plaintiff is monstrous- a violent, abusive, criminal and insane monster notwithstanding her female gender".
2. Other statements made by Mr Johnson in this affidavit include the following, in relation to a hearing in his one of his Supreme Court proceedings, which was conducted before Justice Cavanough in the Supreme Court:

Mr Justice Cavanough's head was no doubt ringing, as was my own, from over three and a half hours of malicious and deliberate falsehoods he had heard from the mouth of that most unethical, disgraceful and disgusting man, the Plaintiff's Counsel, Mr Graham Devries.

If ever any barrister or solicitor deserved to be struck off the roll of this Honourable court and/or imprisoned (or both) for contemptuous, unethical and disgraceful conduct, then the Plaintiff's Counsel, Mr Graham Devries is that man.

Mr Devries' conduct during these proceedings provides all the substantiation needed for these claims. That man has a reputation amongst other barristers for being 'slippery'. Clearly, his peers speak in euphemism and not merely in understatement. I have documented already in these proceedings many incidents of 'slippery' conduct by this man. I refer at this point to Exhibit HJJ-31 [within Exhibit JHH11-1 of this my Affidavit] and in particular (but without limitation) to my comments in paragraph 4 beginning on page 2 thereof which lists 4 disgraceful examples of Mr Devries contemptuous unethical and disgraceful conduct. I shall return to this theme and describe further instances presently.

As a legal practitioner and humble officer of this Court of 18 years good standing, it grieves me to speak so forthright and unfavourably about two legal practitioners, Mr James Turnbull and Mr Graham Devries. I say this in all honesty even though I have noted how Mr Devries in particular so relishes every opportunity to spread malicious and deliberate falsehoods about me, not to mention partaking with relish in outrageously disgraceful court room dramatics as I have described in previous materials I have filed in these proceedings and to which I will return to later in ... this Affidavit.

1. Mr Johnson described other legal practitioners involved in this matter as acting with "consistent sheer stupidity and incompetence", and "being grossly misleading and deceptive". There were numerous other similar statements.
2. Mr Johnson described the Family Report prepared by the Court appointed psychologist in the family law proceedings, as "nightmarishly unprofessional".
3. In relation to its author, Dr List, he said:

I thought that David List, being a mental health care professional, a healer, might be able to provide some help to Pippin and the children. But he turned out to be an egotistical monster, totally unethical and unprofessional. He broke more APS Guidelines in writing his report than he actually managed to keep. I question his sobriety and even his sanity, as I believe he got a perverse sexual kick out of writing up Pippin's mad lies about me (no, I'm not an incestuous paedophile since my teens) in retaliation to my telling David List Pippin's history, 'in confidence'...

The corrupt Family Report written by David List (and dare I say substantially the conduct of Ms Cressy's and his evil imaginations), needs to be completely re-done by a competent and ethical (and dare I say, sober and sane) psychologist.

[Dr List's] report was professionally fraudulent, and ... Dr List is gaining a reputation for such travesties, and that I would when I get the breath to do it be making a full complaint to the Psychologists Registration Board. I see the Family Report needs to be completely done by a competent and ethical professional.

1. Amongst the documents exhibited to this affidavit are two documents entitled "media release" by Mr Johnson dated 14 and 28 July 2008. These could fairly be described as bizarre. They contain strongly worded criticisms of the Supreme Court and his ex-de facto partner, who is described as _"_crazy, psychotic, irredeemable". Amongst the statements made are (in the 28 July 2008 press release):

Senior family and Supreme Court lawyers consulted about the case are stunned and outraged by the Judges' conduct in granting these orders.

Poor RICHARD [an alias for Mr Johnson himself] is in hiding, fearful for his life. He will not be attending Court this morning. 'There's no point me even showing up'. He says. There's been no trial. There's no evidence. There's barely any pleadings. Nothing. There's no point me turning up. I may be a lawyer of 18 years good standing But the Judges don't even let me speak in my defence. I'm told that I'm guilty. And I'm told that I'll be physically removed from the Court if I sigh too loudly, let alone if I dare try to speak up.

1. This 59 page affidavit did not refer to any exhibits, but did incorporate into the body of the affidavit the text of three facsimiles Mr Johnson had sent to Westminster Lawyers, the independent solicitors acting for the children in the family law proceedings. The text of these facsimiles comprised 23 closely typed pages.
2. In reference to his former de facto partner, Mr Johnson wrote:

A woman who is herself the victim of the self-interest, greed and incompetence of her own legal advisers (so called accredited family law specialists) exploiting her madness thinking they can pull a few easy hundreds of thousands of dollars out of me for the troubles they have caused.

1. In relation to his ex-partner's lawyers he referred to:

The greed and avarice of blackmailing family law specialists looking after only their own profit making interests, without regard to (and even actively to the detriment of) the welfare of their own clients...

had much explaining to do to justify their self-interested, conflicted and grossly negligent advices to Pippin and their unethical and unlawful actions against me, a senior member of the legal profession, in these proceedings ...

1. The opposing lawyers are also described in terms such as _"_unscrupulous unethical clutch of blackmailing family lawyers", "disgracefully unethical legal advisers", "outrageously unethical and incompetent", "grossly unethical as well as incompetent"," most unethical and deceitful", "stupid and incompetent fool". Other similar descriptions are used on numerous occasions. They are also accused of "contemptuous, unethical and disgraceful conduct" and as having told "outright lies to His Honour" He accused them of getting their client to deliberately commit perjury.
2. In relation to judicial officers, Mr Johnson said:

I have filed formal requests for parliamentary and executive inquiry into the fitness for office of Mr Justice Cavanough of the Victorian Supreme Court, and for inquiry into several other Supreme Court Judges, having regard to his/their improper conduct and acquiescence in the abuse of Supreme Court rules and procedures, including the patently biased, prejudiced and improper conduct of Mr Justice Cavanough sitting in the Practice Court Division for a full day (I kid the litigation lawyers and justices not) on Friday 20 June 2008.

I have filed a formal request for parliamentary and executive and judicial inquiry into the fitness of FM O'Dwyer to hold judicial office, having regard to his improper conduct, prejudice and bias in hearings in these Federal Magistrates Court proceedings on 1 May 2008, 28 May 2008, his 'hearing' (if indeed it was one) of Pippin's lawyers ex parte on 18 July 2008, and the hearing on 21 August 2008.

I am shocked that FM O'Dwyer did not transfer this matter to the Family Court proper as I submitted to him on 21 August 2008.

I am shocked that FM O'Dwyer did not disqualify himself from any further involvement in these proceedings, having regard to my concerns that he has demonstrated bias, prejudice and other improper conduct, perhaps amounting to corruption in the hearings in May, July and August this year.

1. He further accused Federal Magistrate O'Dwyer, together with Ms Cressy's barrister of "prejudice, bias, improper conduct, unethical (if not outright criminal) behaviour and corruption, violations of [human rights]". He asked rhetorically "Does Federal Magistrate O'Dwyer apply justice blindly, deafly, dumbly and stupidly, in all matters before him?" He accused Federal Magistrate O'Dwyer of "improper conduct", including "demonstrated bias, prejudice and corruption". Later he referred to 'His Honour's "apparent contempt and bias and misconduct if not actual corruption", and made a number of other references in a similar vein.

1. The following hearings took place (or were scheduled) in this matter:
   • A directions hearing on 12 December 2011 before Senior Member Levine. Mr Johnson appeared on his own behalf at this hearing. Interlocutory orders were made, including an address for service of the respondent and a time for him to make any application to the Tribunal relating to any prohibition or impediment to the Tribunal proceeding with the application as a result of the operation of the Whistleblowers Protection Act 2001 or otherwise.
   • A directions hearing on 22 February 2012 before me. There was no appearance by or on behalf of Mr Johnson. Further interlocutory orders were made, including additional particulars of Mr Johnson's address for service and for the filing of materials by each party. The matter was set down for a three day hearing commencing on 21 May 2012.
   • A directions hearing before Senior Member Levine on 27 March 2012. There was no appearance by or on behalf of Mr Johnson. A further order was made in relation to Mr Johnson's address for service. Extensions were granted in relation to orders for the filing and service of material by the parties. Mr Johnson was ordered to pay the LSC's costs on an indemnity basis for the directions hearings on 22 February and 27 March 2012.
   • An application hearing on 17 May 2012 before Acting President Bowman. There was no appearance by or on behalf of Mr Johnson, despite extensive steps (detailed in the reasons for decision[1]) having been taken to provide the hearing notice to him[2]. Judge Bowman ordered that 57 summonses which had been issued by Tribunal registrars at Mr Johnson's request on 4 May 2012 were all set aside. The summonses were addressed to people such as the Prime Minister, the Premier of the State of Victoria, the Chief Justice of Victoria, Supreme Court Judges, the State and Federal Attorneys-General, former Premiers, leading public servants and others connected with the law or the public service. Judge Bowman found[3]:

What is clear is that Johnson believed he could turn the hearing of the misconduct charge against him into some sort of media event at which numbers of people, many of them prominent, would be questioned about matters having absolutely no relationship to the professional misconduct charge faced by Johnson. Indeed, in other parts of [Mr Johnson's] blog, he has referred to there being between 100 and 200 witnesses and to the 'trial' lasting some three months. The abuse of process involved in the issuing of subpoenas for this reason is patent.

He also ordered that neither Mr Johnson nor any of his agents are to request the Principal Registrar to issue a witness summons without first obtaining the direction of the Tribunal. Written reasons for this ruling were provided on 30 May 2012.

• The commencement of the hearing proper before me on 21 May 2012. Mr Johnson appeared on his own behalf and the LSC was represented by Mr Guy Gilbert of counsel. The LSC indicated that it would not call any witnesses, and its case was being conducted _"_on the papers", which were attached to its application for order. Shortly prior to lunch, Mr Johnson sought that the hearing be adjourned to enable him to obtain legal representation. After further discussion this adjournment was granted after lunch on the afternoon of 21 May 2012. The hearing dates of 22 and 23 May were vacated and the matter was set down instead for a hearing on 3, 4 and 5 September 2012. In addition, the matter was adjourned to a directions hearing on 6 July and a further address for service on Mr Johnson, as confirmed by him at the hearing, was ordered. Also, Mr Johnson was given until 29 June to file and serve affidavit material detailing his attempts to obtain legal representation, and to serve statements of evidence of witnesses he proposed to rely on, or alternatively summaries of the evidence he anticipated witnesses would give.
• A directions hearing on 6 July 2012 before me. Mr Johnson appeared on his own behalf. The LSC closed its case and the time for Mr Johnson to file witness statements, or alternatively, summarises of anticipated evidence, was extended to 20 July 2012. The matter was set down for a hearing on 6 August 2012 to consider any applications Mr Johnson wished to make to summon any witnesses. The order indicated that if no notification was received from Mr Johnson by 20 July 2012 this hearing may be vacated.
• On 27 July, no material having been received from Mr Johnson in relation to witnesses, the hearing on 6 August 2012 was vacated.
• A directions hearing before me on 14 August 2012. This was to consider Mr Johnson's request fro an adjournment of the 3 September 2012 hearing. There was no appearance by or on behalf of Mr Johnson, despite him having been given notice in the form agreed at the hearing on 21 May 2012. The following orders were made:
  1. The respondent has in correspondence to the Tribunal dated 30 July 2012 requested that the hearing set down for 3-5 September 2012 be adjourned. The applicant opposes this adjournment request. In the absence of any appearance by or on behalf of the respondent at today's directions hearing, which was called for the purpose of considering his application, and in the absence of any material being formally filed in accordance with the Tribunal's previous orders, in relation to his legal representation at the hearing, or the calling of any witnesses, that application is refused.
  2. The matter remains listed for hearing on 3, 4 and 5 September 2012.
  3. Liberty to apply.
• The resumption and completion of the hearing on 3 September 2012 before me. Mr Johnson did not appear, however, Mr Gerritt Shorel-Hvlaka, who is not a legal practitioner, appeared on his behalf. He made applications for the adjournment and reconstitution of the proceedings. When these were refused, Mr Shorel-Hvlaka withdrew. The case was concluded without further representation being made by and on behalf of Mr Johnson.

1. On the first day of the hearing, 21 May 2012, Mr Gilbert indicated he wished to draw the Tribunal's particular attention to some parts of the four affidavits in addition to those already referred to in the Application for Order dated 19 October 2011. An order was made for the LSC to file and serve those additional references by 4 June 2012, and the LSC did so. At the directions hearing on 6 July 2012, Mr Johnson said he objected to the Tribunal accepting these on the basis that it was not allowable for the LSC to change its claim half-way through the proceeding. I ruled that I would accept the Further and Better Particulars. It is noted that the four affidavits filed by Mr Johnson are stated in its Application for Order dated 19 October 2011 to be relied upon by the LSC in their entirety. The original notice had drawn particular attention to certain page and paragraph references in the affidavits. The Further and Better and Particulars merely drew attention to some additional page and paragraph references.
2. On the day of the resumption of the part heard hearing on 3 September 2012 before me, Mr Johnson did not appear. Mr Gerritt Shorel-Hvlaka sought and was granted leave to represent Mr Johnson pursuant to s 62 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). He is not a legal practitioner, however, the LSC did not oppose Mr Shorel-Hvlaka's appearance on behalf of Mr Johnson. A letter from Mr Johnson dated 2 September 2012 was provided as a certificate under s 62(7)(b) authorising Mr Shorel-Hvlaka to appear on behalf of Mr Johnson. The letter gave no reason why Mr Johnson was not able to attend himself on 3 September. Mr Shorel-Hvlaka said that he may have been pursuing some other matter in a court in New South Wales, but he was not sure.
3. The letter also authorised Mr Kelvin Granger and Mr Diarmuid Hannigan to represent him. The latter two played virtually no role on 3 September. Mr Granger said he was perplexed as to why he was mentioned. Mr Hannigan said he was present in support of Mr Johnson.
4. Mr Shorel-Hvlaka indicated he only appeared for the limited purpose of seeking an adjournment, and a reconstitution of the Tribunal under s 108 of the VCAT Act. After the adjournment and reconstitution applications were refused, Mr Shorel-Hvlaka tried to contact Mr Johnson over the lunch adjournment. He was unsuccessful. He than withdrew, saying he had no authorisation to represent Mr Johnson any further. At a later point, he left the hearing room. The case was concluded without further representation by or on behalf of Mr Johnson.

1. Towards the end of the morning's hearing on 21 May 2012, Mr Johnson made a passing reference to his _"_right to an attorney". Mr Gilbert sought clarification of this, and asked whether Mr Johnson was in fact seeking to adjourn the proceedings, notwithstanding that he had commenced acting for himself that morning. Discussion ensued and Mr Johnson, although initially undecided, ultimately made an application for the matter to be adjourned to enable him to obtain legal representation.[4] Mr Johnson indicated he was pursuing three options or sources, of funding: Victoria Legal Aid (VLA), the Legal Practitioners Liability Committee (LPLC) and private pro bono representation provided by an organisation such as one of the large law firms.
2. In answer to a question from me, Mr Johnson said that yes, his application for an adjournment was made on the basis that he would not get a fair hearing unless he had legal representation. I determined to adjourn the hearing on 21 May 2012. But in doing so, I expressed scepticism as to whether Dietrich[5] principle (which was apparently the basis for the application, at least in part) applies to these professional disciplinary proceedings. Neither party put any submissions of substance to me about that principle (then or later).
3. Nevertheless, I was prepared to adjourn the case on 21 May 2012 for a combination of reasons: At that stage of the hearing, I was prepared to allow Mr Johnson the opportunity of an adjournment so he could put his best case forward, in circumstances where it appeared he might benefit from further time to consider and prepare, and from obtaining legal advice and representation. His conduct had indicated an apparent desire to use the proceedings as a forum to ventilate his grievances generally, rather than focussing purely on responding to the case put against him. He continually interrupted Mr Gilbert's opening submissions, with objections and long, broad-ranging speeches about his grievances. He was "playing to the gallery". Indeed, his conduct encouraged interruptions to the hearing from persons sitting in the hearing room. On at least one occasion, while speaking, he turned his back to the Tribunal and started addressing the members of the public sitting in the hearing room. His statements moved very quickly from one topic to another. At another point, he started simply to walk out of the hearing room. Frequently, Mr Johnson continued to speak after being asked to stop, and to sit down. A similar thing happened at the 6 July 2012 directions hearing.
4. Mr Johnson indicated he had not appreciated the LSC would be running its case only _"_on the papers". He also indicated his concern about only having received the LSC's formal Application [to VCAT] for Order dated 19 October 2011 a few weeks before the hearing. He complained about not having been made aware of the case being put against him.
5. Without accepting the validity of these objections, I was nevertheless prepared to give him extra time in the circumstances. I note in fact that Mr Johnson has been generally aware of the nature of the allegations against him since the decision of Federal Magistrate O'Dwyer in February 2009, and from the various communications between him and the LSC over the ensuing years. The LSC contended he was aware of the precise matters put against him well before April 2012. It referred to the correspondence exchanged in August 2011. In a letter from the LSC to Mr Johnson dated 5 August 2011, the allegations were put to him in substantially similar form to the way they appear in the Application for Order made to VCAT. In a letter dated 29 August 2011, Mr Johnson acknowledged receipt, and provided an extensive response.
6. In any event, Mr Johnson accepted in a letter to the Tribunal of 14 May 2012 that the Application for Order and supporting materials had technically been served on him on 5 April 2012. He said in that letter that he had not in fact seen them "until weeks later, only a couple of weeks ago". He confirmed that was his position at the hearing on 21 May.
7. I also noted that the LSC did not object to that adjournment. In all these circumstances, I determined it was appropriate to agree to Mr Johnson's request to adjourn. I made orders designed to keep the matter on track, however, in particular, requiring Mr Johnson to file affidavit material detailing his attempts to obtain legal representation, and the outcome of those attempts. A date was also set for Mr Johnson to file witness statements, or epitomes, or summaries, of evidence he anticipated his witnesses would give at the hearing. The date for both these steps was 29 June. Also, a directions hearing was scheduled for 6 July (with two hours allocated).

1. Mr Johnson did not at any stage subsequently produce any affidavit attesting as to his attempts to obtain legal representation. Nor did he produce any material specifying what witnesses he wished to call, and how their evidence would be relevant. He objected to producing any material at all, until he had heard the LSC's case. Whilst the LSC's case and how it was being put would in my view have been clear to Mr Johnson by the date he said he received the Application for Order, in April, or at the latest by 21 May, any objection of that nature was in any event overcome by the extension of the time for the filing material in relation to witnesses to a date after 6 July, when the LSC closed its case (namely, 20 July).
2. Mr Johnson did however forward copies of extensive correspondence to the Tribunal, including copies of letters he sent to VLA and the LPLC.
3. His letter of 30 July 2012 to the LSC enclosed a letter of the same date to VLA, chasing up his application to it for legal assistance dated 24 April 2012, and referring to his "urgent 13 page facsimile of 11 May 2012, urgent 11 page facsimile of 14 May 2012, urgent letter of 30 June 2012 and his urgent letter of 4 July 2012". He informed VLA that the matter was coming on for hearing on 3 September, 2012.
4. Mr Johnson's letter to VCAT of 30 July 2012 also enclosed a copy of his letter of that date to the LPLC. Like his letter of 30 July to the LSC, the letter to the LPLC was long, consisting of multiple pages of closely typed text. Like his affidavits, it was written in florid and intemperate language. It traversed many issues. These included the reiteration of his grievances in relation to his experiences in the Federal Magistrates Court proceedings the subject of this complaint, the related Supreme Court proceedings and the non-response by government agencies to his whistleblowing activities. It alleged blackmail, fraud and corruption.
5. In relation to legal representation for this matter, Mr Johnson stated in his three 30 July letters that he had retained senior and junior counsel to represent him in VCAT. These letters also state that Mr Johnson sought to have the hearing put back at least three months. This was to allow him time to brief, receive advice and give instructions to his incoming legal representatives.
6. Mr Johnson's letter to the VPLC concluded:

Obviously, I am keen to get the ball rolling with counsel and with instructing solicitors, as quickly as possible. Even with the "trial date" put back to 3 December 2012, incoming solicitors and counsel will have a lot of work to do to get on top of thousands of pages of transcripts and documents and almost 5 years of legal, bureaucratic and other government processes that has been going on concurrently (including Federal and State courts).

1. His letter to the LSC suggested that he will be calling in excess of 200 witnesses and that 100-200 days would be required for the hearing. This was on the basis that as a whistleblower, he intended to raise many issues about misconduct and corruption at the VCAT hearing.
2. As noted, Mr Johnson did not appear at the directions hearing scheduled for 14 August. Whilst this was called specifically to deal with his request for an adjournment, I note he had said at the 6 July directions hearing that he would not be attending the directions hearing then scheduled for 6 August 2012- he said he would be at VCAT with his "legal entourage" on 3 September- not before.
3. It was not demonstrated to me how it would be necessary to bring such extensive material as Mr Johnson referred to before the Tribunal in order to deal with the particular professional misconduct allegations made against him. On the information before me I determined there was no basis to conclude that this matter should take more than three days. Indeed, it could take much less time. Nor was there any basis on which to conclude that it would be necessary to hear evidence from up to 200 witnesses. Mr Johnson had the opportunity to argue these matters at the directions hearing on 14 August specially convened to allow him to do so, and again at the start of the hearing. He did not appear at the 14 August hearing, despite being given notification in the manner specified by him at the 21 May hearing.
4. On 3 September, Mr Shorel-Hvlaka sought an adjournment for three months. This was to enable Mr Johnson to obtain Legal Aid funding. Mr Shorel-Hvlaka stated that Mr Johnson had received no response from VLA to his requests. He said the basis for the application was the decision in Dietrich. He did not elaborate on how it was said the Dietrich principle applied here.
5. Mr Shorel-Hvlaka did not explain how the evidence of the proposed 200 witnesses would be relevant, such that the resumed hearing would need to be set down for 100 sitting days.

1. In my view, the Dietrich principle did not require that this case be adjourned further. The Dietrich principle refers to a Court's inherent jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation.[6]
2. The principle in Dietrich is not that the common law recognises an entitlement of an accused at trial to publically funded legal representation.
3. The principle is confined to criminal trials (not appeals)[7] relating to charges of serious criminal offences. The principle arises from the inherent jurisdiction of a court. Dietrich did not consider the question whether a tribunal has inherent power to stay its proceedings for the purpose of securing legal representation. Given VCAT is purely a creature of statute, it is doubtful that it has such an inherent jurisdiction.[8]
4. In any event, there are a number of other reasons why the principle would not apply to Mr Johnson in this case. This is not a criminal proceeding, let alone a trial for a serious criminal offence. Mr Johnson is in a very different position to a person such as Mr Dietrich, an indigenous person who was accused of importing into Australia a trafficable quantity of heroin. He did not understand the legal system. The allegations against Mr Johnson, although they could significantly affect him professionally, are disciplinary, not criminal. That is a very important distinction, given the extent to which the law steps in to protect the rights of persons accused of criminal offences.[9] The protections provided to persons in non- criminal matters are not as significant. And as a lawyer of 22 years, clearly it cannot be said Mr Johnson does not understand the legal system.
5. Although referring to the question of whether witnesses to a commission of inquiry (who were at risk of being implicated in an unlawful killing) were entitled to invoke the Dietrich principle, the following statement by the High Court in Canellis is relevant:

The question is not whether it is unfair, in some colloquial sense, for the inquiry to proceed with the respondents unrepresented. The question is whether fairness dictates that the enquiry may not proceed unless the respondents are represented by counsel. ...[10]

1. The case of McGibbon v Linkenbagh and Ors[11] concerned a public service disciplinary appeal, where the employee was ordered to be dismissed. Kiefel J found in favour of the employee on other grounds. In relation to Dietrich, she said

The principle established by [Dietrich] as to the use of a Court's inherent powers to stay or adjourn proceedings until legal representation is obtained, where it concludes it is necessary for a fair trial, refers only to criminal proceedings: New South Wales v Canellis [1994] HCA 51; (1994) ALR 513; 522; Williams v Official trustee [1994] FCA 1194; (1994) 122 ALR, 585,600. It is not authority for the proposition that in other proceedings or inquiries adjournment of proceedings would be required by the dictates of fairness, even where someone faced potentially serious consequences.

1. For the above reasons, I concluded that the Dietrich principle did not require that this case be adjourned further.

1. Nor in my view is there any basis under the Charter of Human Rights and Responsibilities Act 2006 (Charter) on which the Tribunal is required to adjourn this case further. Neither party raised the Charter in their submissions, however, I deal with it for completeness.
2. As noted, s 25 of the Charter (especially s 25(2) (d), (e) and (f)) confers rights in relation to legal aid in criminal proceedings. Section 24(1) of the Charter relates to "civil" proceedings (which includes these disciplinary proceedings) as well. It states:

A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

1. Accepting that the Tribunal is bound by s 24(1) in this instance[12], I have found no authority which suggests that the right to a fair hearing requires me to adjourn a disciplinary hearing in circumstances such as the present to enable a practitioner to continue to pursue an application for legal aid.

1. Mr Johnson has provided no material from the VLA or the LPLC in response to his letters to them. He has said in correspondence that they have not responded. It appears from his correspondence that he proposes that these bodies provide him with funds to brief solicitors, plus senior and junior counsel of his choosing. This adds to the air of unreality surrounding his applications for legal assistance.
2. He did not name the junior and senior counsel, nor the solicitors he stated he had retained. The Tribunal received no indication as to the dates those counsel are available, or not available.
3. Obviously, public or insurance funding for litigants is limited. Whilst the Tribunal must act fairly, and is of course bound by the rules of natural justice[13] I concluded I was not required to adjourn this case until public funding is provided. It may well never be provided. Similarly, the other options Mr Johnson referred to may never bear fruit. The matter cannot be deferred indefinitely. I concluded Mr Johnson has had sufficient time to obtain legal representation - from whatever source.
4. I also note that Mr Johnson, as a legal practitioner of 22 years experience, could continue to represent himself, as he has done in this proceeding, and a number of others. I note that in the Supreme Court proceedings, Justice Kaye had observed on his proficiency as a lawyer and as an advocate. His honour said:

I gained the impression that [Mr Johnson ] at the least, is a very intelligent person. He has a quick and incisive intellect. In fact, for a person who professes never to have practised in Court before, he displayed a number of skills of a natural advocate.[14]

1. I concluded that at base, the issues in this case are not particularly complex. This reinforced my conclusion that it would not be unfair for me not to further adjourn the case to allow him to continue his attempts to obtain legal representation.
2. Mr Johnson referred in his correspondence to statements I made in both the 21 May and 6 July 2012 hearings that I believed it would be in his interests to obtain legal representation. In his letters of 30 July 2012, he quoted a statement by unnamed senior counsel he has retained that

...it is probably not advisable for you to act for yourself in a matter like this. It is clear enough from the brief that you are fairly passionately involved, and that generally gets in the way if you are both client and solicitor.

1. I agree it would be preferable for Mr Johnson to have been represented at the resumption of this hearing. However, no information was put to me which justified the conclusion that the matter should be further adjourned.
2. In summary, I previously adjourned the hearing to allow Mr Johnson the opportunity to obtain legal representation and to best prepare his case. On the information provided to me, I did not believe fairness required me to adjourn the hearing again. In addition to being bound by the rules of natural justice, I am conscious of s 98(1)(d) of the VCAT Act, which states:

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

1. Mr Johnson has had every opportunity to put his best possible case to the Tribunal. He has not taken that opportunity, however.

1. Mr Shorel-Hvlaka also made an application that the Tribunal be reconstituted, under s 108 of the VCAT Act. This was on the basis that I was biased because I had refused to adjourn the matter on 14 August. I determined that the refusal of the adjournment application was justified- for the reasons expressed above- and therefore, the professed basis for the reconstitution application failed. In addition, I note that even if I was wrong in determining to refuse the adjournment, that does not necessarily satisfy the test for bias.[15] Here, no argument was put as to how it might be concluded that I would not bring an impartial mind to this case, or would not be seen to do so. I am not aware of any basis for such a conclusion.

1. Mr Gilbert emphasised that the LSC's case was not that the allegations made by Mr Johnson against his former de facto partner, judicial officers, counsel, solicitors and the psychologist were "untrue". Rather, the LSC's application relates to the way in which Mr Johnson put these allegations: the florid and offensive language he employed and the repetition of allegations of unethical, incompetent, fraudulent, corrupt conduct, time and again throughout the affidavit material.
2. Thus, to the extent that Mr Johnson had intended to ventilate in this VCAT hearing the truth or otherwise of the allegations which he had made in the affidavit material, the evidence of witnesses he wished to call about those matters would not be relevant. And even more so, to the extent witnesses were called to give evidence in relation to his dissatisfaction with the treatment he has received from government agencies more broadly in relation to his whistleblower activities, for example, that evidence would not have been relevant either.
3. In the end, however, these issues were not pressed, as Mr Johnson did not appear on the resumed hearing date.
4. In relation to Mr Johnson's concern expressed in some of his statements, that the charges which were brought against him related to his conduct in his capacity as a private litigant, rather than a legal practitioner, the LSC made the following submissions.
5. Mr Gilbert referred to the decision of LSC v Piva (Piva)[16] which referred to the identification in NSW Bar Association v Cummins[17] of two types of personal misconduct which may constitute professional misconduct:
   1. Acts which are sufficiently closely connected with actual practice albeit not occurring in the course of practice;
   2. Conduct outside the course of practice which manifests the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice.
6. Mr Gilbert submitted that Mr Johnson's conduct fell into the first category. But if it did not it certainly fell into the second. He noted that the correspondence included in the affidavit material was generally signed by Mr Johnson as "James Johnson, B Ec (Hons)/LLB, Barrister and Solicitor", or as _"_Sutton Lawyers" (sometimes _"_per: H. James Johnson") or referred to "Johnson Legal Australian Corporate Lawyers".
7. Mr Gilbert also submitted that when appearing in a court on his own behalf, he nevertheless continues to owe the duties which any legal practitioner owes to a court, such as the duty of honesty, and relevantly, the duty not to abuse the absolute privilege against defamation accorded to participants in court proceedings.

1. Given that there was no appearance by or on behalf of Mr Johnson at the time when it came for his case to be put, on 3 September 2012, no submissions or evidence were formally put by him to the Tribunal in his defence.
2. Nevertheless, Mr Johnson did make extensive submissions, or statements, to the Tribunal on the first day of the hearing, 21 May. The majority of the hearing time on that day was devoted to Mr Johnson's submissions, statements and objections.
3. In addition, Mr Johnson has also sent very voluminous correspondence to the Tribunal. Generally, the Tribunal has been one of numerous parties copied into such correspondence. This has a similar tone to the affidavit material, and the oral submissions he made on 21 May and also on 6 July 2012.
4. For the most part, his submissions and statements consisted of criticisms of the various agencies he has come up against, in particular the LSC, the Federal Magistrates Court, VCAT (in relation to the conduct of this proceeding) and the Ombudsman. It included long personal critiques on various participants in the VCAT proceedings, such as lawyers acting for the LSC and subpoenaed parties. He spoke of the injustices he said had been done to him in the Supreme Court proceedings brought by his ex partner, which resulted in orders being made against him for the transfer of assets to her. He referred to his $50 million counterclaim in the Supreme Court proceedings against the Federal Magistrate "along with other crooked lawyers". He also complained that his whistleblower referrals and dozens of complaints against practitioners to the LSC arising out of his family law and Supreme Court proceedings had been rejected.
5. The correspondence complained about what he called the "secret" VCAT hearing on 17 May 2012, when his 57 summonses were set aside.
6. His statements indicated that he clearly does not resile from the things he said in his affidavit material in terms of his criticisms of his ex-de facto partner, the Federal Magistrate, the psychologist and the legal practitioners and judges involved in his family law and Supreme Court proceedings. He continued to allege criminality by numerous government and judicial agencies and offices.
7. It is very obvious he feels deep-seated bitterness against very many persons and agencies who he has come up against in connection with his family law and Supreme Court proceedings.
8. Many of the things Mr Johnson said in the hearing and in his correspondence could fairly be described as a diatribe against persons and agencies who he regarded as having done him wrong. Also, it was apparent from his statements that he saw the proceedings as being a platform for the ventilation of what he says are whistleblower disclosures against numerous agencies and officers. In a letter to the Tribunal (and seven other parties) dated 31 August 2012 Mr Johnson said:

My defence will of course be de facto a reverse prosecution- or more correctly an inquest of sorts- exposing the industrial scale of this government misconduct and corruption at the intersection of the legal profession and all three branches of government.

1. His letterhead indicates he is a candidate for the seat of Lalor in the next federal election. Many of the things said in the hearing and in correspondence are not relevant to the issues in this case.
2. Nevertheless the things he said in the hearings and in his correspondence do give some indication as to some potentially relevant matters which he regarded as supporting his position. First, Mr Johnson made the point that he has never stolen a penny off a client, never cheated on his taxes, and never been charged with any crime, trivial or serious, in the 22 years he has been admitted to practice. Nor has there been a single complaint made by a client about him. Nothing of that nature was alleged by the LSC. I accept that submission by Mr Johnson.
3. Second, there was an apparent submission that because he was acting on his own behalf in the family law proceedings, he should not be subject to disciplinary processes applicable to legal practitioners. His correspondence contains numerous statements of his contention that he was not acting in a professional capacity when conducting his own family law case.
4. In answer to a question from me, he said he is not currently practising as a solicitor in the sense of acting for clients for remuneration in the conventional way. He said he hadn't done any paid work as a lawyer, or indeed, of any description, for years. He indicated he assists persons interstate, in federal jurisdictions, who can't get lawyers.
5. As far as his other personal circumstances are concerned, he said during the hearings and in his correspondence that he is living interstate, "living out of a suitcase", in significantly reduced circumstances- "a far cry from the old days of living in a 23rd floor Bourke St penthouse and Torquay beach house".

1. I have confined my consideration in relation to these charges to Mr Johnson's conduct in filing the affidavit material in the Federal Magistrates' Court, because that is the way the charges are framed. I have not included in my consideration any of Mr Johnson's other conduct in the Federal Magistrates Court (to the extent the application discloses information about that) or in the hearing of this matter by VCAT, or any other conduct at all aside from his conduct in filing the affidavit material. As stated, however, I have taken into account what Mr Johnson has said in his correspondence (and from the statements he made in the hearings on 21 May and 6 July 2012) to the extent that I discern it contains any contentions in support of his case in this proceeding.
2. There is no issue about the facts in this case. Clearly Mr Johnson filed the affidavit material, which amounts to over 200 pages, in the Federal Magistrates Court. The LSC's case is, simply, that this material, on its face, discloses professional misconduct. As stated above, there is no basis on which I need to consider the question whether the various allegations made by Mr Johnson are true or not. They are not factual matters which arise for determination in this case, because the charges relate to the way in which Mr Johnson expressed himself in making the allegations, and the other statements in the affidavit material.
3. The first charge is of professional misconduct at common law. At common law, misconduct in a professional capacity has been defined consistently as conduct which would reasonably be regarded as disgraceful or dishonourable by fellow professionals of good repute and competency.[18]
4. The operation of the legal system depends on lawyers adhering to conventions of respect and professional courtesy- civility, as Dal Pont calls it[19]. Of course, lawyers will on occasion go close to, or cross the line of breaching these conventions, to advance the case they are putting. But in this case, Mr Johnson's conduct goes well beyond any grey area. His affidavit material goes well beyond statements of fact. It contains such repeated allegations of unethical, incompetent, fraudulent, corrupt conduct, time and again throughout the affidavit material, as to amount to a barrage of abuse. I agree with the description in the Application for Order of their language as "intemperate, discourteous, vulgar, provocative and offensive".
5. Of course, everybody has a right to raise complaints of misconduct or unethical conduct with the appropriate authorities. And any litigant has the right to challenge evidence given by their opponents in litigation. But what Mr Johnson has done instead is to use the affidavit material to promulgate without restraint serious allegations and abuse throughout his affidavit material. His conduct could fairly be described as disgraceful or dishonourable by fellow professionals of good repute and competency.
6. I now turn to the contention that Mr Johnson's conduct was in his personal capacity, rather than as a legal practitioner.
7. In my view, Mr Johnson was acting in the course of his profession when representing himself in the family law proceedings. I do not see that the fact that he was also the client alters the situation. He was actually conducting legal proceedings in the Federal Magistrates Court, as solicitor, and as advocate.
8. In my view, it is of significance that Mr Johnson frequently signed his correspondence "LLB_"_ or "Barrister and Solicitor", etc. He was making it known to others that he was expecting to be treated as a lawyer, that is, somebody whose primary duty is to the Court, rather than his client (himself) who understood legal and court processes (albeit that he did not practise in family law) and who would comply with the conventions applicable to legal practice.

97 Further, Mr Johnson would be entitled to recover his legal costs of acting for himself if an order in his favour was made, and these were able to be properly quantified.[20]

1. Even if Mr Johnson was not acting in the course of his profession when representing himself in the family law proceedings, in my view his conduct is still amenable to disciplinary proceedings.
2. There is plenty of authority which demonstrates that legal practitioners can be the subject of disciplinary proceedings in relation to their personal conduct in certain circumstances. There are numerous cases of lawyers being professionally disciplined for matters such as tax breaches, various criminal convictions, providing false resumes and forging a sick leave certificate.
3. In terms of the two categories of personal misconduct identified in Cummins, it follows from what I have said above that in my view Mr Johnson's conduct is clearly sufficiently connected with actual practice to be amenable to disciplinary proceedings. Alternatively, it manifests the presence of qualities which are incompatible with legal practice. Although there is no suggestion of dishonesty by Mr Johnson, his conduct demonstrates a lack of perspective and preparedness to abide by the conventions of professional courtesy and civility. And this conduct continued over a period of months. It was not just a "one off" aberration.
4. It is also appropriate to take into account the effect on the reputation of the profession and the courts which his conduct has.[21]. It is self evident that if lawyers generally behaved in the way Mr Johnson has, public confidence in the courts and the legal process would be undermined. That is not to say there cannot be debate about how the operation of the legal system could be improved. As stated, clearly Mr Johnson has strong grievances. But he has a duty to express these in a way other than by employing vitriolic abuse in the filing of evidentiary material in a hearing.
5. The expression "a lawyer who acts for himself has a fool for a client" was mentioned by Mr Johnson in his correspondence, and by Mr Shorel-Hvlaka at the hearing- in the context of it being desirable for Mr Johnson to have legal representation, which he was not able to afford or procure, and therefore, for the matter to be further adjourned. This case is clearly an example of the wisdom of that aphorism. I am sure Mr Johnson fell into the trap of acting in a less professional way in this case than he would have had he been acting for a client in the conventional way. He stated he is not a family lawyer, and that it was unfair that he was pitted against experienced practitioners in this field. Much of what he said is infused by his sense that he is a victim.
6. Overall, Mr Johnson 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, and in matters that have followed on from these (such as his whistleblower complaints).
7. The LSC indicated that charge 2 was brought further, or in the alternative to charge 1. Charge 1 alleges misconduct at common law, under s 4.4.3 of the Act. Charge 2 alleges professional misconduct in that that Mr Johnson is not a fit and proper person to engage in legal practice, under s 4.4.3(b) of the Act. The LSC indicated that charge 1 was the charge pressed primarily. In these circumstances I find charge 1 proved, and make no finding on charge 2.
8. It follows from all that I have said above that charge 3 has been proved also. Mr Johnson's conduct is a blatant example of failing to take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that communications were courteous and that provocative language or conduct was avoided.

1. At the conclusion of the hearing on 3 September 2012, I stated my findings referred to in the above two paragraphs. I then heard Mr Gilbert's submissions as to the sanction(s) which the LSC sought.
2. The LSC contended that Mr Johnson's conduct was so grave that the most serious sanction should apply. It sought that VCAT make orders recommending to the Supreme Court that Mr Johnson's name be removed from the local roll of practitioners. Also, and in the alternative, it sought an order that Mr Johnson's practising certificate be cancelled and that no further practising certificate be able to be granted for a period of five years. And it sought that Mr Johnson be ordered to pay its costs, under clause 46D of Schedule 1 to the VCAT Act.
3. Because of the seriousness of the sanctions sought by the LSC, and given that he did not attend the hearing on 3 September (even though the adjournment application made on his behalf was refused) I have decided to allow him a further opportunity to put any submissions to the Tribunal in mitigation. I will make orders requiring the LSC to be served with any written material or reports he wishes to put before the Tribunal relating to the sanction(s) which should be imposed.

[1] [2012] VCAT 605 at [12] to [22].

[2] At the hearing before me on 3 September 2012, Mr Hannigan (who attended in support of Mr Johnson- see below) made a statement which sought to explain that Mr Johnson did not in fact receive notice of the hearing on 17 May 2012, and how this came about. Mr Hannigan said he is the proprietor of the Cheesecake Factory at 236 Smith St Collingwood. This was the street address specified by Mr Johnson in his letter to the Tribunal of 20 February 2012 (and confirmed by him at the hearing on 21 May) as his address for service. However, whatever occurred in relation to service prior to the hearing on 17 May 2012, has now been overtaken by the subsequent opportunities which Mr Johnson was given to seek to summons witnesses who could give evidence at the hearing.

[3] [2012] VCAT 605 at [30]

[4] When pressed as to whether he was making an application for an adjournment Mr Johnson first turned around to the people sitting in the hearing room behind him, and asked, "Shall I make an application?" He then turned back round to face the Tribunal and said, "Yes, let's make an application. I think we ought to cool down. It will certainly help me if I can spend my three days with some time up in Spring Street rather than King Street. Yes, I'll make the application, sir"

[5] Dietrich v R [1992] HCA 57: (1992) 177 CLR 292.

[6] Dietrich 177 CLR 293 at 315 per Mason CJ and McHugh J, 357 per Toohey J, 374-5 per Gaudron J and New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309 at [31]

[7] Canellis at [31] - [33], Johns v R (1995) 13 WAR 380

[8] Australian International Insurance Limited v Graham [2005] VSC 183; (2005) 23 VAR 34 at [27].

[9] See for example, s 197 of the Criminal procedure Act 2009, and s 25(2)(d) and (e) of the Charter of Human Rights and Responsibilities Act 2006 which both relate to an accused person's entitlement to legal representation funded by VLA. This is not, however, unlimited, even in the context of a criminal trial.- Slaveski v Smith [2012] VSCA 25.

[10] Canellis 1994 HCA 51 at [36]

[11] [1996] FCA, 1212 (2 February 1996) at [26]

[12] See De Simone v Bevnol Constructions & Developments Pty Ltd [2009] VSCA 199 at [52].

[14] Cressy v Johnson (No. 3) [2009] VSC 52 at [7].

[15] See Ebner v Official Trustee in Bankruptcy (2001) CLR 205 [2000] HCA 63

[16] Legal Services Commissioner v Piva (Legal Practice) [2009] VCAT 1200

[17] [2001] NSWCA 284; (2001) 52 NSWLR 279 per Spigelman CJ (Mason P and Handley JA agreeing)

[18] Allinson v General Council of Medical Education and Registration [1894] QB 750; Re a solicitor [1960] VicRp 96; [1960] VR 617.

[19] Dal Pont, Lawyers' Professional Responsibility, 4th ed, p 483, [21.140]

[20] Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47 and Cachia v Hanes and Anor [1994] HCA 14; (1994) 179 CLR 403; (1994) 120 ALR 385; (1994) 68 ALJR 374

[21] Legal Services Board v McGrath [2010] VSC 266 at 10]; [2010] VSC 266; (2010) 29 VR 325 at 329