1. The practising certificate of the respondent, Harold James Johnson is cancelled.
2. No local practising certificate may be granted for Mr Johnson before 14 May 2015.
3. Mr Johnson is to pay the applicant's costs, including reserved costs. The quantum of such costs is to be determined by the Costs Court, if not agreed.
4. Liberty to apply by 30 November 2012 in relation to the costs of those persons other than the applicant represented at the hearing of 17 May 2012 before Judge Bowman.

1. On 3 September 2012, the Tribunal found Mr Johnson, a legal practitioner, guilty of two charges of professional misconduct, contrary to the Legal Profession Act 2004 (the Act).
2. The two charges were:
   • Charge 1

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

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.

1. The circumstances of Mr Johnson's conduct, and the reasons for those findings against him, are set out at length in the Tribunal's decision of 24 September 2012. In brief, in four affidavits (plus exhibits to three of them) filed in the Federal Magistrates' Court in 2008, Mr Johnson used language which could variously be described as intemperate, discourteous, vulgar, provocative and/or offensive. The affidavits were filed by Mr Johnson in the course of representing himself in family law proceedings involving his former de facto partner and children.
2. The respondent (LSC) brought disciplinary proceedings against Mr Johnson following a referral by the Federal Magistrate who heard the family law proceedings. The Tribunal said, in relation to the affidavit material Mr Johnson filed:

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".[1]

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,...[2]

1. Mr Johnson was found guilty of professional misconduct notwithstanding that he was representing himself in the Federal Magistrates Court, rather than a third party client. It was also noted that his conduct tended to undermine public confidence in the Courts and the legal process.
2. Given the seriousness of the sanctions sought by the LSC against Mr Johnson, and the fact that he was on 3 September represented by a non-lawyer who had only limited instructions, the matter was adjourned to give Mr Johnson an opportunity to put submissions and any reports or written material he wished, to the Tribunal in relation to the question of what orders should be made in the light of those findings of professional misconduct.

1. A hearing was conducted on 5 October 2012. As on 3 September 2012[3], Mr Johnson did not appear. Rather, Mr Schorel-Hlavka[4] appeared on his behalf. As occurred in relation to the hearing on 3 September 2012, Mr Johnson had provided a letter standing as a certificate under s 62(7)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) authorising Mr Schorel-Hlavka to appear on his behalf. This was not opposed by the LSC.
2. Mr Schorel-Hlavka made broad ranging submissions on jurisdictional and constitutional issues. He spoke of his (Mr Schorel-Hlavka's) voluntary work in the area of counselling parties aggrieved (especially fathers) from family law proceedings. It was in this capacity that he had come to assist Mr Johnson. Apart from some submissions about his own impressions of Mr Johnson, he did not put any conventional plea type material to the Tribunal.
3. Mr Schorel-Hlavka submitted that VCAT lacked jurisdiction to discipline Mr Johnson because it is not a court under Chapter III of the Commonwealth Constitution. This was on the basis that Mr Johnson is admitted to practice in the High Court, and VCAT does not have power to make a decision which affects the operation of the High Court. The answer to that submission is that s 55B of the Judiciary Act 1903 (Cth) has the effect that any disciplinary action taken against a Victorian practitioner under State law is given application in relation to the Federal Courts.
4. Mr Schorel-Hlavka also submitted that I should not accept the validity of the Act as conferring power to discipline Mr Johnson (and indeed I was biased in doing so) because the LSC had not proved that the Act had received royal assent. I reject that submission on the basis that I am entitled to assume that the Act is validly in operation. Section 54(2B) of the Interpretation of Legislation Act 1984 provides that on the mere production of a document purporting to be a copy of a reprint of a Victorian Act, that document is admissible as evidence thereof before all courts and persons acting judicially within Victoria. In the absence of evidence to the contrary, I accept that the Act as published by Anstat with the authority of the Government Printer for the State of Victoria and authorised by Chief Parliamentary Counsel correctly reflects legislation which has valid affect in Victoria. Further. I note the Act received royal assent on 16 December 2004.[5]
5. Mr Schorel-Hlavka also made a further request for the reconstitution of the Tribunal under s 108 of the VCAT Act. (He had previously made such a request, on 3 September 2012, which I had refused.[6]) Again, this application was made on the basis that I was biased. I again refused the application. This time, Mr Schorel-Hlavka sought that the matter be subject to a ruling by the President of VCAT under s 108(5) of the VCAT Act. The hearing was adjourned on 5 October to enable this application to be made to the President.
6. That afternoon, the President heard the application, which was made orally before him in the Supreme Court Practice Court. The President refused the reconstitution application and gave written reasons.[7] The President ordered that the hearing resume on 10 October 2012.
7. The matter was resumed and completed on 10 October 2012. Again, Mr Schorel-Hlavka appeared on Mr Johnson's behalf, pursuant to a letter provided by Mr Johnson standing as a certificate under s 62(7)(b) of the VCAT Act.

1. In terms of plea material, very little was put on behalf of Mr Johnson. Apart from the submissions of Mr Schorel-Hlavka referred to below, no character evidence was put before the Tribunal. Nor was any medical or psychological material put.
2. Much of what Mr Shorel-Hlavka submitted was not relevant to the question of what sanctions are appropriate in the light of the findings that Mr Johnson is guilty of professional misconduct. From his written and oral submissions, it is clear that in tandem with his counselling work, Mr Shorel-Hlavka is also involved in campaigning to change the family law system, and the system of justice and government more broadly. His submissions tended to relate to these matters, rather than Mr Johnson's particular circumstances. Whilst his stated goal of seeking to encourage calm and non-violent responses by persons aggrieved by the outcome of family law proceedings is admirable, submissions on these matters are not relevant in this case.
3. Mr Shorel-Hlavka stated that he only had been provided with limited information by Mr Johnson. He did, however, submit as follows:
   • Mr Johnson's conduct occurred in the course of an emotionally charged family law matter. He said Mr Johnson was upset at what he perceived were lies and deceptions told against him in the case.
   • Mr Johnson's conduct was a plea for attention. He is now denied the right to see all three of his former partner's children, including his daughter. He suggested VCAT should look at matters from Mr Johnson's point of view.
   • Financially, Mr Johnson has lost everything. He is required to pay child support. Any costs order would only be a further burden to him.
   • Mr Johnson appeared to Mr Shorel-Hlavka to be an honourable, sincere and decent man who wants to do the right thing, who, however, feels he has been 'completely crucified'.
   • Mr Johnson has an exemplary record as a legal practitioner;
   • Also, the process has taken too long. The LSC sought to have Mr Johnson declared unfit to practice on mental health grounds in 2009, and this was not successful. These charges now indicate that the LSC is unfairly hounding him.
4. Mr Schorel-Hlavka said there were no previous findings against Mr Johnson. He urged empathy for Mr Johnson's position: that a non-punitive approach be taken, and that Mr Johnson be allowed to continue to practice. He pointed to the fact that Mr Johnson had not been dishonest.
5. As noted in the reasons for decision of 24 September, a number of the matters pleaded in Mr Johnson's favour had been raised in the voluminous correspondence sent by Mr Johnson to the Tribunal over the course of the hearing. These matters include:
   • The emotionally charged family law proceedings.
   • The fact that Mr Johnson was acting for himself, not any third party client, and not for any remuneration.
   • His personal circumstances were vastly reduced.
   • There have never been any complaints or adverse findings against him professionally before.
   • He had not engaged in any dishonest conduct.
   • He had made significant contributions to the profession: as author of a monthly column on tax issues in the Victorian Law Institute Journal between 1998 and 2003, and as Chairman of the Law Institute of Victoria's (LIV) GST Taskforce between 1998 and 2000 and as Chairman of the LIV's State Taxes Committee from 1999 to 2000.
6. In his correspondence to the Tribunal after the finding that he was guilty of misconduct, Mr Johnson also made a number of outlandish requests, or demands, including that I read out in the hearing certain letters he has written about his grievances and his whistleblower complaints, his demands for the resignations of certain persons involved in the proceeding, and demands for multi million dollar 'settlement' payments and costs. this material comprised hundreds of pages, but very little of it was of any relevance to the question of disposition in this case.

1. The LSC's position had been stated at the conclusion of the 3 September hearing: it sought an order 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 no further practising certificate be granted for a period of five years. It also sought an order that Mr Johnson pay the LSC's costs, under Clause 46B of Schedule 1 to the VCAT Act.
2. In reply to Mr Schorel-Hlavka's submissions on 5 and 10 October 2012, Mr Gilbert said it was accepted that the conduct had occurred in the context of emotionally charged family law proceedings. It was also agreed that there were no prior findings against Mr Johnson.
3. On the other hand, he submitted that:
   • Despite having being given an additional opportunity since 3 September 2012 to make submissions as to disposition, in the interests of procedural fairness, very little material has been provided.
   • The conduct had occurred over a period of months, so it could not be characterised as a loss of control on a single occasion.
   • Mr Johnson had shown no remorse at any stage. His response to the LSC from the start was belligerent and disdainful, and this remained the case up to the present time.
   • The principles of general and specific deterrence are both important here.
   • There was no proper information provided about Mr Johnson's financial circumstances.
   • The magnitude of costs in this case is squarely referrable to the way in which Mr Johnson has chosen to conduct it.

1. There are elements of Mr Johnson's conduct the subject of this case, and also the way in which he conducted this case itself, which suggest the possibility of some kind of psychological or psychiatric condition, or impaired mental functioning. This is a matter which I am required to take into account, given that the decision of the Court of Appeal in R v Verdins[8] held that impaired mental functioning, whether temporary or permanent, is relevant to sentencing. And, as stated in Quinn v Law Institute of Victoria Limited[9] the principles of sentencing in criminal law are applicable by analogy in disciplinary matters.
2. In the decision of FM O'Dwyer of February 2009 reference is made to the opinions of a psychiatrist, and the psychologist who authored the Family Report, that Mr Johnson was suffering a psychiatric illness, however, neither could make a definitive diagnosis, as they had not been given sufficient opportunity to make an assessment. The psychiatrist stated that Mr Johnson presented as someone with a personality style best described as narcissistic, with grandiose and paranoid traits. These reports were the basis on which the Federal Magistrate ruled in 2008 that it was in the best interests of the children of his former partner that there be no contact with Mr Johnson, because at that stage, he presented an unacceptable risk. The Federal Magistrate concluded there were real issues about his mental health.
3. I am conscious, however, that these assessments were not definitive, and were made for a different purpose, namely to assess what level of contact was consistent with the best interests of the children. Also, they occurred more than four years ago.
4. Against these uncertainties, is the letter which Mr Schorel-Hlavka produced to the Tribunal on 5 October 2012. It is a letter dated 26 May 2009 from the General Manager of the Professional Standards Division of the LIV to Mr Johnson. It referred to an information notice dated 1 April 2009, from the LIV to Mr Johnson in relation to a health assessment under s 2.5.4 of the Act. It refers to a report received by the LIV from a medical practitioner who interviewed Mr Johnson on 5 May 2009 and states that as a delegate of the Legal Services Board, the LIV had decided to take no further action in relation to 'this matter' on the basis of the evidence presently in its possession. Thus, it appears that the LIV had taken steps to determine whether Mr Johnson may have any mental impairment under the Act, but following the receipt of the medical report, had taken the matter no further. I received no further information about that process.
5. The consequence is that there is no basis on which I am able to conclude that Mr Johnson is suffering from a mental impairment for the purposes of 'Verdins' consideration.
6. It is clear, however, that from 2007-8, Mr Johnson's professional and personal life took quite a different turn, and it appears that his behaviour altered significantly around that time. I do not discount the possibility that if a comprehensive assessment were made, it might be found that Mr Johnson is suffering from some mental impairment. Whilst this cannot be a major factor in determination of disposition in this case, I have borne it in mind, together with the other, weightier, factors applicable. Given the way in which the events of 2007 and 2008 affected Mr Johnson, I also do not discount the possibility that in the future he may return to a more conventional and appropriate attitude to the way in which a legal practitioner is supposed to conduct himself.

1. In terms of disposition, I am guided by the words of Maxwell P in Quinn v Law Institute of Victoria:[10]:

[30] Nevertheless the phrase "not so much to punish as to protect" [used in Hanneberry[11]] underlines the fact that the Tribunal's orders are punitive as well as protective. The available sanctions are, by their nature punitive, and the objectives of specific and general deterrence - which serve the protection of the public - depend on the sanctions having punitive effect.

[31] Critically for present purposes, however, the Tribunal's protective function is paramount. Thus, where there is a choice of sanctions, it is to be expected that the Tribunal will choose the sanction which maximises the protection of the public

1. Both general and specific deterrence are relevant here. From the point of view of general deterrence, clearly, Mr Johnson's conduct in filing the affidavit material is incompatible with the effective operation of the legal system. If legal practitioners behaved in the way Mr Johnson 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. This duty applies with greater force to legal practitioners, even when representing themselves. Notwithstanding Mr Johnson'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 legal practitioners, and that is contrary to the public interest.
2. Additionally, there is the substantial inconvenience and expense (quite apart from unpleasantness) which this conduct no doubt caused to the other participants in the proceeding, and, potentially, others whose matters are affected by the diversion of time and effort required to respond to it. The administration of justice is adversely affected by overly self- indulgent conduct of this type.
3. Similarly, from the point of view of specific deterrence, a strong sanction is called for. Mr Johnson has demonstrated no insight whatever into his conduct, even after four years. Whilst the penalty imposed must reflect only his conduct the subject of the charges brought against him- the filing of the four affidavits and exhibits- he is not entitled to any reduction on the basis of remorse. This is clear from the narrative of his conduct, and the way in which he has conducted these proceedings. All the way through, to the very end of these proceedings, he has maintained his barrage of voluminous and outlandish correspondence, including allegations of incompetence and corruption and, for example, demanding the resignations of persons who have been involved in actions detrimental to his interests. His correspondence continues to raise his complaints about the operation of government and other agencies. As stated in the decision of 24 September 2012 his letterhead states that he is an independent candidate for the seat of Lalor at the next Federal election.
4. The authorities suggest that an order striking off the roll should only be made where the probability is that the solicitor is permanently unfit to practice.[12]
5. I do not propose to make that recommendation to the Supreme Court. Whilst it is true, as Mr Gilbert said, that this is a decision for the Supreme Court and not VCAT, I regard it as appropriate only to make that reference if I am satisfied there is a reasonable likelihood the Supreme Court would find that Mr Johnson is permanently unfit to practice. As is apparent from what I have said above, I am not satisfied to the requisite degree. His professional misconduct is very serious, and he has shown no indication of remorse. However, I am conscious this is not a case of dishonesty. I am satisfied his conduct stems from a deep seated sense of bitterness and feeling of persecution. In terms of moral culpability, it is of a different character to dishonest and fraudulent behaviour motivated by greed. I take into account the fact that Mr Johnson's conduct did not occur whilst he was acting on behalf of a client for remuneration. There is no criminality alleged. I also take into account his clean disciplinary record, and his earlier contributions to the profession.
6. However, the seriousness of Mr Johnson's conduct and the high importance of both general and specific deterrence here, in light of his lack of any insight or remorse, require that a significant period of cancellation of his practising certificate be imposed.
7. In view of Mr Johnson's complete lack of any demonstrated insight or remorse, there will clearly have to be a complete change in his attitude if he were to seek a practising certificate in the future, however, I believe he should not be denied that opportunity.
8. I order that Mr Johnson's practising certificate be cancelled and that he not be able to apply for a practising certificate for a period of two and a half years.

1. Clause 46D of Schedule 1 to the VCAT Act has the effect that the Tribunal must order that Mr Johnson pay the LSC's costs unless it is satisfied that exceptional circumstances exist. No such exceptional circumstances have been demonstrated. I received no information about Mr Johnson's financial position, beyond the statements that his circumstances are much reduced. In any event, his conduct of this case would certainly not warrant departing from the general position set out in clause 46D. As described above, and in the reasons of 24 September 2012, most of the delay, both in bringing the matter before VCAT, and in the completion of the hearing, has been caused by Mr Johnson. All the way through Mr Johnson has not focussed on the issues relevant to the disciplinary charges brought against him, but has instead sought to ventilate his personal grievances, and his broader political/ public policy agenda. Both he and Mr Schorel-Hlavka have raised numerous irrelevant issues, which have taken time to deal with.
2. Mr Johnson is to pay the LSC's costs. This order covers the entire proceeding, save for the costs of the directions hearings on 22 February and 27 March 2012 are already the subject of the costs order made by Senior Member Levine on 27 March 2012.
3. Finally, there are the costs of the persons represented at the hearing before Judge Bowman in relation to the setting aside of the 57 summonses which were issued by Tribunal Registrars at Mr Johnson's instigation on 4 May 2012. Clause 46D has operation in relation to the costs of these persons as well. Judge Bowman reserved the costs of all those represented at the hearing on 17 May 2012. Two representatives appeared for the summonsed persons on that day: Ms Foley of counsel for persons associated with the State of Victoria, and Mr Forsaith of counsel for persons associated with the Commonwealth. I am not aware whether any costs application was made by those representatives on that day. I will grant liberty to apply in relation to the costs of those persons.

[1] [2012] VCAT 1426 at [92]

[2] [2012] VCAT 1426 at [103]

[3] [2012] VCAT 1426 at [28] - [30]

[4] In error, the Tribunal misspelt Mr Schorel-Hlavka's name in the 24 September 2102 decision.

[5] Victoria Government Gazette no G 51, 16 December 2004, p 3380.

[6] [2012] VCAT 1426 at [68]

[7] [2012] VCAT 1482

[8] [2007] VSC 102 (23 May 2007) at [32]

[9] [2007] VSCA 122 (14 June 2007) at [36]

[10] [2007] VSCA 122

[11] [1998] VSCA 142

[12] Prothonotary of Supreme Court of New South Wales v P [2003] NSWCA] 320; Prothonotary v Richard (NSWCA) 31 July 1987 per McHugh JA; NSW Bar Association v Maddocks (NSWCA 23 August 1988); Legal Services Commissioner v Brott (Legal Practice) [2011] VCAT 110.