1. Pursuant to s 4.4.23(2)(c) of the Legal Profession Act 2004 (Vic) ("the Act"), the order of the Tribunal made in this proceeding on 8 November 2012 is set aside.
2. Pursuant to s 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("the VCAT Act"), the further amended application for order dated 20 June 2013 filed by the Legal Services Commissioner ("the Commissioner") with the Tribunal be substituted as the application for order in this proceeding.
3. Pursuant to s 4.4.23(2)(c) of the Act, the Tribunal orders that:
   • (a) the charge contained in the further amended application for order dated 20 June 2013 is found proven; and
   • (b) the respondent is guilty of professional misconduct pursuant to Part 4.4 of the Act.
4. The respondent is reprimanded.
5. The respondent is to pay a fine of $3,000 to the Legal Services Board on or before 30 August 2013.
6. Costs of the proceeding are reserved.

1. On 10 January 2012, the Legal Services Commissioner ("the Commissioner") applied for an order against the respondent, Con Kiatos ("Mr Kiatos") under Division 4 of Part 4.4 of the Legal Profession Act 2004 (Vic) ("the Act"). The application was made under s 4.4.13(2) of the Act.
2. Following amendment on 21 June 2012, the application was heard on 28 June 2012.
3. On 8 November 2012, the Tribunal made an order dismissing the charges.[1]
4. On 5 December 2012, the Commissioner made application for a rehearing of the amended application under s 4.4.21(1) of the Act.
5. By a letter dated 28 June 2013, the solicitor for the Commissioner in substance advised the Tribunal that the proceeding had been largely resolved in that Mr Kiatos admitted the conduct set out in a Further Amended Application ("the Further Amended Application"), subject to the Tribunal determining whether the admitted conduct constituted professional misconduct (or alternatively misconduct[2]) or unsatisfactory professional conduct (or alternatively unsatisfactory conduct[3]). The question of costs of the proceeding also stands to be resolved.

1. According to the respondent's affidavit,[4] from about 1997 to 2006, Mr Theo Kambouris was his best friend. They and their families holidayed at Loch Sport in East Gippsland. Mr Kiatos assisted him to build a holiday house there, and used to drink with him. In his affidavit, he described himself as seeing more of Mr Theo Kambouris than he did of his own family. Mr Theo Kambouris, Mr Kiatos and a common friend, Mr Bill Floros decided in 2001 to go into the property development business.
2. In the same year, the three would-be property developers decided to incorporate a company called BTC Developments Pty Ltd ("BTC").[5] They each appointed a director to BTC. Mr Theo Kambouris appointed his son Jonathan Kambouris ("Jonathan Kambouris"), and Mr Kiatos appointed his wife Ms Anna Papakostas ("Ms Papakostas"), a secondary school teacher, to be directors of BTC with Mr Bill Floros.
3. BTC quickly acquired a substantial property development business.
4. By 2002, the property development business was going well. Mr Theo Kambouris had a building licence, and a network of contacts in building and property development. Mr Floros did physical labouring on the building sites. BTC's contracts over the period from 2002 to 2004 were substantial and included construction projects in Frankston ($2,165,000), Wattle Glen ($3,150,000), Reservoir ($4,200,000), Oak Park ($327,500) and Frankston ($3,680,000).[6]
5. After BTC commenced in 2001, Mr Kiatos asked Ms Papakostas to come by BTC's Richmond Office to sign documents as she was a director. Because she worked by day as a teacher in Springvale, Ms Papakostas gave Mr Kiatos a written authority to sign documents on her behalf. The authority was dated 6 November 2001. It stated:

I, Anna Papakostas, director of BTC Developments Pty Ltd, hereby authorize my husband, Con Kiatos, to sign company documents in my name and on my behalf in respect to the everyday business transactions of BTC Developments Pty Ltd in order to allow the business activities of the company's business to proceed unhindered.

1. By a Commercial Credit Application and Supply Agreement ("the credit application") with Bowen & Pomeroy Pty Ltd ("Bowen and Pomeroy") dated 4 February 2002, BTC sought credit for the supply of timber. The printed form application was completed by Mr Theo Kambouris. It lists the three directors of BTC - Anna Papakostas, Bill Floros and Jonathan Kambouris. At face value, it appears to have been signed by each of the directors.
2. Bowen and Pomeroy required directors' guarantees before it would advance credit to BTC. A personal guarantee and equitable charge ("the guarantee") is appended to the credit application and is also dated 4 February 2002. In each case, the guarantee appears to be signed by the named guarantor. The signatures are in each case are attested by Mr Kiatos, who signed as the adult witness to each signature. Mr Kiatos' name is printed by hand immediately below his signature.
3. From 2005, BTC had difficulty meeting its debts, and problems with creditors including Bowen and Pomeroy. Bowen and Pomeroy issued a statutory demand, and called on Ms Papakostas and Jonathan Kambouris to pay on the guarantee. Other creditors also made claims. Disputes between Kambouris and Kiatos interests commenced in 2007, and are still not resolved.

1. The conduct admitted by Mr Kiatos is set out in the Further Amended Application:[7]
   1. The Respondent was admitted to practice in Victoria on 4 November 1987.
   2. At all material times the Respondent was:
      1. An Australian legal practitioner within the meaning of section 1.2.3(a) of the Act, alternatively a current practitioner as defined by section 3 of the 1996 Act;
      2. A sole practitioner in the firm Kiatos & Co., carrying on practice at Suite 1, 229 Balaclava Road, Caulfield North 3161 in the State of Victoria.
   3. On 14 August 2009, the Commissioner received a complaint (the complaint) against the Respondent from Mr G Egerton of Aughtersons Solicitors (the complainant) on behalf of Bowen & Pomeroy Pty Ltd (Bowen & Pomeroy) in respect of the Respondent's conduct in falsely purporting to witness the signatures of Anna Papakostas and Jonathan Kambouris on a Personal Guarantee and Equitable Charge.
   4. In or about February 2002, BTC Developments Pty Ltd (BTC) sought credit from Bowen & Pomeroy in the course of a trading relationship between the two companies. BTC completed a Commercial Credit Application & Supply Agreement, part of which consisted of included a Personal Guarantee and Equitable Charge in relation to any amounts due by BTC to Bowen & Pomeroy.
   5. The three guarantors were listed as Anna Papakostas, Bill Floros, and Jonathan Kambouris, who were then directors of BTC. Anna Papakostas was at all relevant times and remains the wife of the Respondent.
   6. The completed Commercial Credit Application & Supply Agreement was returned to BTC with each of the Commercial Credit Application & Supply Agreement and the included Personal Guarantee and Equitable Charge apparently bearing the signatures of Jonathan Kambouris and A Papakostas.
   7. Neither Anna Papakostas (personally) nor Jonathan Kambouris had in fact signed the Commercial Credit Application & Supply Agreement or the included Personal Guarantee and Equitable Charge. Instead:

1. on the third page of the Commercial Credit Application & Supply Agreement, the Respondent signed "A Papakostas" without indicating that he did so on her behalf; 2. over the words "Guarantor's Signature" on the Personal Guarantee and Equitable Charge, the Respondent signed "A Papakostas" and then signed as witness so as to represent that writing as being Anna Papakostas' signature and that she had signed it in his presence;

1. a person who was not Jonathan Kambouris signed the Personal Guarantee and Equitable Charge over the words "Guarantor's Signature" in the Respondent's presence and the Respondent, knowing that the Personal Guarantee and Equitable Charge had been signed by a person who was not Jonathan Kambouris, then signed as witness to that signature but failed to ensure that the truth in relation to the identity of the third signatory was made known to Bowen and Pommeroy (sic). 8. The Commercial Credit Application & Supply Agreement was subsequently approved and goods were provided on credit to BTC in reliance upon the Personal Guarantee and Equitable Charge.

1. On 15 September 2009, the Commissioner wrote to the Respondent to notify him of the complaint, enclosing a copy of the complaint, and to inform the Respondent that the Commissioner had referred the investigation of the complaint to the Law Institute of Victoria (the LIV) pursuant to section 4.4.9 of the Act.
2. At all material times from 12 December 2005 the LIV was a prescribed investigatory body ("PIB") pursuant to the Act.
3. By letter dated 21 September 2009, the LIV requested that the Respondent provide a full written explanation of his conduct.
4. The Respondent provided an initial response to the allegations by letter of 15 October 2009 in which he confirmed that he had:
   1. witnessed the signature of Theodore Kambouris on the Personal Guarantee and Equitable Charge; and
   2. personally signed the Personal Guarantee and Equitable Charge on behalf of Anna Papakostos.
5. The LIV sought further information from him by letter dated 4 November 2009.
6. By letter dated 20 November 2009 to the LIV, the Respondent confirmed that he had witnessed Theodore Kambouris sign the Personal Guarantee and Equitable Charge in place of his son Jonathan Kambouris. With that letter he enclosed a copy of an Authority which he claimed authorised him to sign documents on behalf of Ms Papakostos.
7. The investigation continued by letter dated 20 January 2010, which requested further information and documents from the Respondent, including a Statutory Declaration verifying his response of 20 November 2009.
8. The Respondent partially responded to that letter on 23 February 2010.
9. Subsequently, the LIV sought further information from the Respondent on 8 June 2010. A response to that letter was received on 24 June 2010.
10. On 26 July 2010, the Respondent declared by Statutory Declaration that the contents of his 20 November 2009 letter to the LIV were true and correct.
11. The LIV again sought further information from the Respondent by letter dated 11 August 2010.
12. By letter dated 27 August 2010 to the LIV, the Respondent said that he had considered it appropriate to sign the Personal Guarantee and Equitable Charge on his wife's behalf as he was of the opinion that his wife had authorised him to do so and that he had overlooked the requirement to indicate that he was so signing.
13. At the LIV's request, on 6 October 2010, the Respondent declared by Statutory Declaration that the contents of his 27 August 2010 letter to the LIV were true and correct.
14. The LIV referred the matter back to the Commissioner and on 2 June 2011, the Commissioner wrote to the Respondent. The Commissioner confirmed that the investigation of the complaint was close to being finalised, and offered the Respondent an opportunity to provide any further written submissions or material which the Respondent would like to be taken into consideration before the Commissioner dealt with the matter under section 4.4.13 of the Act.
15. The Respondent responded to the Commissioner's letter of 2 June 2011 by letter and enclosures dated 14 July 2011.

1. On 3 August 2007, proceedings were issued by Bowen and Pomeroy in the County Court of Victoria against the three guarantors claiming the sum of $127,609.22. By then, BTC had been placed in liquidation.
2. By a notice of defence dated 12 August 2008, Mr Jonathan Kambouris denied signing any guarantee in favour of Bowen and Pomeroy. Ms Papakostas' signature was not executed by her but by Mr Kiatos. He attested as witness to the signature of Ms Papakostas and Mr Jonathan Kambouris.
3. In a letter dated 13 August 2009, Aughtersons, the solicitors for Bowen and Pomeroy made complaint to the Complaints Officer, Legal Services Board:

The defect in the document of guarantee provides the guarantors with an absolute defence. The County Court proceedings have been discontinued for this reason. Bowen & Pomeroy Pty Ltd relied upon the credit application and the validity of the guarantee document to its detriment and has extended credit now in excess of $130,000.00 to the customer BTC Developments Pty Ltd. The securities which were created by way of equitable charges contained within the guarantees are also voided.

1. Senior Counsel for Mr Kiatos submitted in substance that the defects in the guarantee did not have this effect, and that the guarantee was properly signed by Mr Kiatos on behalf of his wife. He also submitted that the guarantee had in fact been signed by Mr Theo Kambouris. It is not necessary for us, and it is not desirable for us in the absence of Bowen and Pomeroy to resolve the status of the guarantee. The parties agree that it was foreseeable that the conduct by Mr Kiatos might make reliance by Bowen and Pomeroy on one or more of the guarantees more difficult than had the true identity of the signatories and the capacity of their execution been made clearer on the face of the document.
2. Following the complaint, the Commissioner conducted an investigation into Mr Kiatos' conduct.

1. The charge admitted by Mr Kiatos is that he is guilty of:

Professional misconduct within the meaning of the Act, alternatively misconduct within the meaning of the 1996 Act, in that the Respondent:

(a) signed "A Papakostas" on the Credit Application and on the Personal Guarantee and Equitable Charge; and

(b) signed as witness to the signature of Ms Anna Papakostas in the knowledge that she did not personally sign the document but that he signed for her as identified in paragraph (a) above; and

(c) did not indicate that the signature of Ms Papakostas had been written by an agent, and so left the document open to misinterpretation that it had been personally signed by her; and

(d) signed as witness to the third guarantor's signature on the Personal Guarantee and Equitable Charge in the knowledge that the person who signed in the space reserved for the third guarantor was not Jonathan Kambouris (who was identified earlier in the document as the third guarantor) and so created the opportunity (if the document was communicated to Bowen & Pommeroy (sic) without either an amendment or a separate explanation to make it clear who had signed) for Bowen & Pommeroy (sic) to be led into believing that it had been signed by Jonathan Kambouris -

in circumstances where it was foreseeable to the Respondent that his conduct might make reliance by Bowen & Pommeroy (sic) on one or more of the guarantees more difficult than had the true identity of the signatories and the capacity of their execution been made clearer on the face of the document.

1. Mr Williams SC who appeared with Mr Warne for Mr Kiatos stated that he was instructed to admit the conduct and the charge as alleged in the Further Amended Application, and to admit that the conduct of Mr Kiatos took place in the course of his legal practice, or was sufficiently connected with his legal practice.[8]

1. Clause 6.6(1) of Schedule 2 to the Act provides:

A complaint may be made under Chapter 4 of this Act on or after the commencement day in relation to conduct of a law practice or an Australian legal practitioner occurring before that day, so long as a complaint, or a request for dispute resolution, had not been made under Part 5 of the old Act in relation to the same conduct.

1. Clause 6.6(1) permits complaints to proceed under Chapter 4 of the Act even though the conduct of the legal practitioner occurred before the commencement day of the Act, provided that no complaint, or request for dispute resolution, had been made under Part 5 of the 1996 Act in relation to the same conduct.
2. Here the relevant conduct of Mr Kiatos occurred in February 2002. There was no complaint or request for dispute resolution made against Mr Kiatos until the letter from Aughtersons dated 13 August 2009. As a result, the complaint brought by the Commissioner can be brought under the Act, as the Commissioner seeks to do.
3. In the circumstances, there is jurisdiction to deal with the Commissioner's complaint under the Act rather than under the 1996 Act. This is convenient and what we propose to do.

1. With the agreement of the parties, there are two remaining issues that we are required to decide. First, there is a dispute between the parties as to whether, as the Commissioner contends, on the admitted facts, the charge constitutes professional misconduct under s 4.4.3(1) of the Act (or misconduct under section 137 of the 1996 Act), or whether, as Mr Kiatos contends, the charge constitutes unsatisfactory professional conduct under s 4.4.2 of the Act (or unsatisfactory conduct under section 137 of the 1996 Act).
2. The second issue is the penalty to be imposed on Mr Kiatos resulting from his admission of guilt to the present form of charge and admitted facts.

1. We now turn to the relevant statutory definitions.
2. Section 4.4.3(1) defines "professional misconduct" for the purposes of the Act as:[9]

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

1. Likewise, s 137 of the 1996 Act defines "misconduct" to mean:

(a) misconduct by a legal practitioner or firm in the course of engaging in legal practice, including -

(iv) unsatisfactory conduct that amounts to a substantial or consistent failure to reach reasonable standards of competence and diligence;

1. Section 4.4.2 of the Act defines "unsatisfactory professional conduct":

unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

1. Section 137 of the 1996 Act defines "unsatisfactory conduct" to mean:

(a) conduct by a legal practitioner or firm in the course of engaging in legal practice that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner or firm; or

1. The issue that we have to determine under both the Act and the 1996 Act is whether the conduct described in the charge and admitted facts involves, or amounts to "a substantial" failure to reach reasonable standards of competence and diligence within the meaning of the statutory definitions. It is not suggested that Mr Kiatos has consistently engaged in conduct of the nature alleged.
2. In determining whether conduct of a legal practitioner satisfies the requirements of professional misconduct, the Tribunal is informed by the test for misconduct at common law viz whether the conduct would reasonably be regarded as disgraceful and dishonourable by professional colleagues of good repute and competency.[10]

Does the conduct of Mr Kiatos amount to a substantial failure to reach or maintain a reasonable standard of competence and diligence?

1. Mr Woinarski QC for the Commissioner submitted that the admitted circumstances and charge amounted to professional misconduct under s 4.4.3(1)(a) of the Act, and misconduct under s 137 of the 1996 Act.
2. He submitted that:
   • (a) As the charge made clear, Mr Kiatos had falsely attested that the guarantee had been signed by his wife and Mr Jonathan Kambouris.
   • (b) This left the form of the guarantee open to the misinterpretation that it had in fact been signed by Ms Papakostas and Mr Jonathan Kambouris.
   • (c) Mr Kiatos knew that neither his wife nor Mr Jonathan Kambouris had signed the guarantee, but was nonetheless prepared to witness that their signatures had been affixed to the guarantee in his presence.
   • (d) Mr Kiatos did nothing to correct the potential for misunderstanding that he had created.
   • (e) Whilst the guarantee was not one which required a solicitor or responsible person to witness the signing of the guarantee, the reputation of legal practitioners was adversely affected by what he did.
   • (f) Legal practitioners have a reputation so that when they attest a document, the public has confidence that the document has been executed properly as attested by the practitioner's signature.
   • (g) The Tribunal should conclude that the conduct by Mr Kiatos would reasonably be regarded as disgraceful and dishonourable by professional colleagues of good repute and competency.
3. Mr Woinarski QC submitted that in past decisions the false attestation of signatures by legal practitioners had been held to be professional misconduct with the exception of two cases.

1. It is instructive to consider the cases concerning false attestation of signatures by legal practitioners referred to by Mr Woinarski QC.
2. In Xu v Council of the Law Society of NSW,[11] a solicitor received instructions from a client concerning the purchase of a unit in an off the plan development. The client brought the draft contract to the solicitor who explained it to him. The client signed the contract and the solicitor witnessed his signature. The purchase price was $525,000 with a 10% deposit. The client then said that he desired to think it over and took the contract away. A few days later he returned with the contract stating that his wife wanted to be a purchaser and had also signed the contract.
3. The solicitor admitted that he did not pay much attention to the husband's comments, and did not check the wife's signature at the time. The contract given to the solicitor's conveyancing clerk named the wife as co-purchaser with what purported to be her signature in Chinese characters next to that of the husband. Both appeared to have been witnessed by the solicitor as he had earlier attested the husband's signature. The wife subsequently repudiated the contract and claimed her signature was a forgery. She was not in Australia when the contract was signed and exchanged.
4. Handley AJA, with whom Tobias JA agreed and Basten JA agreed as to the relevant charges, held that the findings of the Tribunal did not establish "a substantial" failure to reach or maintain a reasonable standard of competence and diligence.[12] However, the conduct was within the definition of unsatisfactory professional conduct which fell short of the standard of competence and diligence that a member of the public is entitled to expect. The lapses on the part of the solicitor were momentary and isolated.[13]
5. The Court substituted a finding of unsatisfactory professional conduct for the Tribunal's finding of professional misconduct, and reduced the fine of $3,000 imposed in relation to three charges to a fine of $1,500 in relation to the first two charges together with a reprimand for unsatisfactory professional conduct.
6. Xu was a case involving conveyancing work that was "incredibly sloppy".[14] The subsequent addition of the wife's apparent signature made it appear that the solicitor had attested her signature also. The solicitor was remiss in failing to call in the wife to attest that the signature appearing to be her signature on the contract of sale was genuine.
7. In Xu's case, there was no personal financial interest on the part of the solicitor in the transaction, and no aspect of financial gain or benefit to his personal interest. It is a case of oversight or negligent conduct on the part of the solicitor.
8. A decision on very different facts is Re Trevor John Brown.[15] In this decision, a practitioner acted as a solicitor without having a practising certificate. The practitioner signed as a witness to a number of loan documents agreements and transfers which purported to be executed by the owners of various properties, but which had not been executed by the true owners as the practitioner well knew. The practitioner falsely represented that the transfer documents had been executed by the true owners. The Tribunal found that the practitioner was guilty of professional misconduct, and ordered that he be struck off the Roll of Solicitors of the Supreme Court of Queensland.
9. In Law Society of New South Wales v Georgas,[16] the Law Society asserted that the solicitor had falsely attested the signature of the Complainant to

a loan contract and to a mortgage. The Tribunal concluded that the conduct in question fell within the description of professional misconduct at common law referred to the judgment of Lopes LJ in Allinson being conduct "which would be reasonably regarded as disgraceful and dishonourable by his professional brethren of good repute and competency".[17] 10. The Tribunal agreed with the Law Society's submission:[18]

it is an inescapable conclusion that failing some fraud on the solicitor allowing him to hold an honest belief that the signatory was who the signatory purported to be, any solicitor who purports to witness a signature of a person in circumstances where the solicitor does not see the person whom the signature purports to represent sign a document and, at the same time has satisfied himself as to the identity of the signatory, must be prima facie guilty of conduct which, on any definition, can only be described as professional misconduct.

1. Mr Williams SC submitted on behalf of Mr Kiatos that:
   • (a) The case should not be seen as a false attestation case as the conduct admitted did not amount to false attestation.
   • (b) In the case of the Kambouris signature, Mr Kiatos has deposed that Mr Theo Kambouris did execute the guarantee.
   • (c) Mr Theo Kambouris does not recollect the circumstances regarding the credit application.[19]
2. Mr Williams SC said that there were four things in the charge relating to conduct which the respondent admitted:
   • (a) His conduct had the effect of creating a situation that a party seeking to rely on the guarantee would face difficulties. This was foreseeable, but not in fact foreseen. He didn't anticipate that this would happen.
   • (b) He did sign his own wife's name, and he did sign his own personal signature as witness to the other signatures.
   • (c) He failed to make it clear that his wife's execution was not personal, but through him as agent.
   • (d) He failed to make it clear that Mr Theo Kambouris was signing as a shadow director, and was being substituted for his son.
3. Senior Counsel submitted that Mr Kiatos had actual authority to sign for his wife, Ms Anna Papakostas.[20] He referred to the Irish case of Dundalk AFC Interim Co Ltd v FAI National League.[21]
4. In this decision, Finnegan J referred to a passage in London County Council v Agricultural Food Products Ltd where Romer LJ said:[22]

It is established in my judgment as a general proposition that at common law a person sufficiently "signs" a document if it is signed in his name and with his authority by somebody else, and in such case the agent's signature is treated as being that of his principal. That this is so recognised by Blackburn J in in Reg. v. Kent Justices; by Lord Esher in Reg. v. Cowper, and by the Divisional Court in France v. Dutton. The definition of "signature" in Stroud's Judicial Dictionary is also in conformity with the principle.

1. As to the attestation by a witness of a signature actually affixed by the witness acting in a representative capacity, Finnegan J said:[23]

A party to a document cannot be a witness to his own signature. Mr. Byrne in his representative capacity signed the registration form: as a matter of a law this was a signing not by Mr. Byrne but by Mr. Carter. Mr. Byrne signed the form as witness having (to use the words of Pearce J.) being present at the incident, namely, present when the form was signed by Mr. Carter. I take the view that Mr. Byrne was entitled so to do and I have been unable to find any authority to the contrary. It is not uncommon for a person who signs a deed in one capacity to witness the signature of another party to the deed and this practice has never been found to be ineffective. Accordingly, I am satisfied that the signature of the registration form by Mr. Carter was properly witnessed.

1. Mr Williams SC referred to Deputy Commissioner of Taxation (Vic) v Boxshall.[24] In this case, a creditor's petition in bankruptcy was signed in the name of the Deputy Commissioner of Taxation for Victoria by one of his authorised officers. The relevant form stated that it had been "signed by the petitioner in my presence".
2. The Full Court of the Federal Court held that whilst the petition had been properly signed, it had not been properly attested.[25] It was inaccurate for the attestation clause to say that the petition was "signed by the petitioner in my presence". The Deputy Commissioner was the petitioner and he did not sign the petition. It was signed by his duly authorised agent. If the petition had been signed by the Deputy Commissioner's agent per pro then the attestation clause could have stated that the named duly authorised agent signed the petition in the presence of the attesting witness. That fact should have been made plain by saying, for example, "Signed by Kaye Gardner, the duly authorised agent for the petitioner in my presence" or words to that effect. The form of attestation on the petition rendered it defective.[26]
3. Mr Williams SC stated that by his plea Mr Kiatos acknowledged that his attestation of the signature affixed by him for Ms Papakostas should have made it clear that it was a "per pro" signature or a signature "as agent for" his wife. However, he submitted that the guarantee was not for that reason rendered ineffective, despite the belief by Bowen and Pomeroy that it was. He acknowledged that the failure to note the capacity in which the signature of Ms Papakostas was affixed was a shortcoming, and gave rise to a lack of clarity.
4. First, he submitted that the failure to properly attest the signature of Ms Papakostas was not a matter of great seriousness because there was no legal consequence. He contended that the failure to properly attest did not make the guarantee unenforceable having regard to the decision in Dundalk. To like effect, he also referred to the decision of the Court of Appeal in Agricultural Food Products where Denning LJ alone referred to the need to sign the document is adding the letters "p.p." to show that the signature was signed by a proxy, followed by his initials for the purpose of identifying himself.[27] Secondly, he submitted that the failure to properly attest was not deliberate. Mr Kiatos did not intend to mislead. Rather he did not turn his mind to the desirability of a more complete attestation. He did not consider the possibility that an incomplete attestation might cause confusion. Finally, he said that the Tribunal should regard the incomplete attestation as not serious or significant, but rather modest and inadvertent.
5. Mr Williams SC submitted as to the factual circumstances:
   • (a) Whilst Mr Kiatos accepted that the conduct occurred in legal practice, there was no suggestion that Bowen and Pomeroy relied on his status as a solicitor or knew that he was a solicitor. Mr Kiatos was not referred to on the guarantee as a legal practitioner, and the guarantee did not require execution by a responsible person.
   • (b) There was no evidence of reliance or knowledge by anyone relevant that the document had been witnessed by someone who was a solicitor.
   • (c) The guarantee could be witnessed by any person, and that was what the signature "Con Kiatos" did.
6. As to the attestation of the guarantee, he additionally submitted:
   • (a) Mr Kiatos accepted that he understood that the person who signed the guarantee was Mr Theo Kambouris. Mr Theo Kambouris was not pretending to be Mr Jonathan Kambouris whose name was printed on the guarantee as the party who was to sign.
   • (b) Mr Kiatos accepted by his plea that Bowen and Pomeroy would be expected to rely on the attestation and that this is what happened.
   • (c) Mr Kiatos was familiar with Mr Theo Kambouris' signature, and with Mr Theo Kambouris.
   • (d) Mr Theo Kambouris signed his own signature.
   • (e) Mr Kiatos expected that Jonathan's name would be deleted, and that the third guarantor would be Mr Theo Kambouris. Mr Theo Kambouris should have been shown as the third guarantor.
   • (f) Mr Kiatos was careless. The change to Mr Theo Kambouris should have been completed before Mr Theo Kambouris left his possession.
   • (g) The real mistake by Mr Kiatos was to leave the matter in the hands of someone who did the wrong thing, or might have forgotten to do the right thing.
7. Finally, Mr Williams SC submitted that in some cases of false attestation there were findings of professional misconduct, whilst in other cases the finding was one of unsatisfactory professional conduct. He referred to Xu as an important decision of the New South Wales Court of Appeal which substituted a finding of unsatisfactory conduct for professional misconduct where the solicitor had been careless in the course of a conveyancing transaction. Ultimately, it was for the Tribunal to determine on the facts whether the conduct was so serious as to warrant a finding of professional misconduct having regard amongst other things to the nature of the conduct, the brevity of the conduct and the context in which the conduct occurred.

1. Having given careful consideration to the comprehensive submissions made to the Tribunal by respective Senior Counsel, we find on the facts and circumstances before us that the conduct engaged in by Mr Kiatos, on or about 4 February 2002 is professional misconduct under s 4.4.3(1)(a) of the Act. We also find that the conduct engaged in by Mr Kiatos would constitute misconduct as defined in s 137 of the 1996 Act.
2. We accept that the conduct of Mr Kiatos involves a substantial failure to reach or maintain a reasonable standard of competence and diligence. We also find that the conduct of Mr Kiatos would reasonably be regarded as disgraceful and dishonourable by professional colleagues of good repute and competency in accordance with the test adopted in Allinson and later cases.[28]
3. We find as to the nature of the conduct that:
   • (a) The attestation by Mr Kiatos of the apparent signature of Mr Jonathan Kambouris was false and misleading in that Mr Kiatos did not disclose that Mr Theo Kambouris, and not Mr Jonathan Kambouris had signed the form. There was no disclosure that Mr Theo Kambouris had signed the form of guarantee at all.
   • (b) The form of guarantee was open to the misinterpretation that it had in fact been signed by Ms Papakostas and Mr Jonathan Kambouris.
   • (c) Mr Kiatos knew that neither Ms Papakostas nor Mr Jonathan Kambouris had signed the guarantee but was nonetheless prepared to witness that those signatures had been affixed to the guarantee in his presence.
   • (d) Mr Kiatos did nothing to correct the potential for misunderstanding that he had created.
   • (e) The reputation of legal practitioners generally is adversely affected by what Mr Kiatos did, as is their reliability generally as attesting officers. Public confidence that documents have been executed properly as attested by the practitioner's signature is diminished.
4. In reaching our conclusions that we have set out above, we have taken into account the context in which the conduct occurred:
   • (a) Although conducted through BTC, Mr Kiatos was one of the principals of the property development business to which Bowen and Pomeroy were to supply timber on credit.
   • (b) Unlike the case of Xu, where the legal practitioner had no personal financial interest in the transaction, and was acting at all times to advance only the interest of his client in a conveyancing transaction, Mr Kiatos had a personal financial interest in obtaining credit for the property development venture through BTC.
   • (c) It was foreseeable to Mr Kiatos (as is admitted) that his conduct would make reliance by Bowen and Pomeroy on the guarantee that his wife was giving by his signature of her name more difficult than had the true identity of the signatory been made clearer on the face of the guarantee.
   • (d) By failing to attest the guarantee so as to show the basis on which it had been executed on behalf of Ms Papakostas, and attested by him, it was foreseeable that there would be uncertainty over the validity and legal enforceability of the guarantee arising from its manner of execution and attestation. It is by no means clear that Bowen and Pomeroy would have accepted the credit application and guarantee had they known the true attestation.
   • (e) The credit application and guarantee show Mr Jonathan Kambouris as the applicant for credit, and the guarantor on behalf of BTC.
   • (f) Whilst it is undisputed that Mr Theo Kambouris executed the guarantee, his signature would be taken in the absence of clarification as that of Mr Jonathan Kambouris. His signature is unclear on the form as it was executed, and could very readily be taken as that of Mr Jonathan Kambouris.
   • (g) The attestation by Mr Kiatos is at the foot of the page on which the guarantee is found. At the top of this page is a clear handwritten reference to the guarantors including Mr Jonathan Kambouris. When he attested the signature of Mr Theo Kambouris, it would have been very obvious to Mr Kiatos and certainly foreseeable (as it would to any other attesting person) that Mr Theo Kambouris' signature would be taken as that of Mr Jonathan Kambouris.
   • (h) At the time, and for a number of years previously, Mr Theo Kambouris was Mr Kiatos' best friend and business partner in property development. Mr Kiatos described Mr Theo Kambouris as being at the time a person of whom he saw more than his own family.
   • (i) It was foreseeable that the effect of the false attestation would be to create uncertainty over the validity and legal enforceability of the guarantee arising from its execution by Mr Theo Kambouris, rather than Mr Jonathan Kambouris who was intended to be a party to the transaction.
   • (j) It was foreseeable that the doubt that would be created might benefit the personal financial interest of Mr Theo Kambouris, and indirectly Mr Kiatos' own personal financial interest given that he was at the time the partner of Mr Theo Kambouris in the property development venture for which the timber was to be supplied on credit.
   • (k) As an experienced solicitor, Mr Kiatos was aware, or is to be taken as being aware of the strict requirements for the execution of guarantees if they are to be effective.
5. For these reasons, as we have said, we find that the conduct admitted in the circumstances by Mr Kiatos amounts to professional misconduct under s 4.4.3(1)(a) of the Act, and misconduct under s 137 of the 1996 Act. It also amounts to professional misconduct at common law for the reasons that we have given.

1. On the admitted facts, we have found Mr Kiatos guilty of one count of professional misconduct within the meaning of s 4.4.3 of the Act. Under Division 4 of Part 4.4 of the Act, there are a range of orders that can be made. These include the imposition of a reprimand and the payment of a fine not exceeding $50,000 in the case of a finding of professional misconduct.
2. We note that under s 160(1)(c)(i) of the 1996 Act the maximum fine that could be imposed for misconduct was also the sum of $50,000, whilst the maximum fine that could be imposed under s 159(1)(b) of the 1996 Act for unsatisfactory conduct was $1,000.
3. The principles relating to the imposition of a penalty in professional discipline matters are helpfully summarised by the Tribunal in Legal Services Commissioner v Rallis:[29]

The Tribunal's powers to discipline legal practitioners for misconduct are primarily protective. But its disciplinary orders are also punitive, as Maxwell P observed in Quinn v Law Institute of Victoria Limited (Quinn):

"The available sanctions are, by their nature, punitive, and the objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect."

His Honour also said that because the Tribunal's disciplinary jurisdiction is punitive, in the service of protecting the public, the principles applicable to sentencing apply by analogy.

In sentencing generally it is necessary to balance just punishment; specific and general deterrence; denunciation; the protection of the community; and rehabilitation.

Specific deterrence is directed at the particular offender. The concept of general deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence.

Related to general deterrence is the proposition that in deciding on appropriate penalty the Tribunal may have regard to the effect which its order will have on the understanding, in the profession and amongst the public, of the standard of behaviour required of solicitors.

1. A prior matter is admitted by Mr Kiatos. On 2 July 1999, he was found guilty of four counts of misconduct by the Full Tribunal of the Legal Professional Tribunal.[30] The charges related to trust account breaches.[31]
2. The four counts alleged against Mr Kiatos in the previous matter related to a trust account concerning a mining venture where investors were to receive shares in a mining company, but never did. Trust monies were wrongly expended towards the costs incurred in unsuccessful Supreme Court proceedings initiated on behalf of the investors by the firm of Kiatos and Karamountzos. The Tribunal accepted that Karamountzos had the conduct and control of the mining venture as between partners and thus primary responsibility for the charges of misconduct constituted by the proven irregularities. The Tribunal accepted that as Mr Kiatos had already been prevented from engaging in practice over the period from 31 December 1995 until 2 July 1999, no further suspension should be ordered. It concluded that he was genuinely remorseful and only too well aware of his responsibility as a solicitor to act honestly and diligently. The Tribunal concluded that the evidence before it suggested that future clients should have confidence in him.
3. Whilst the conduct of Mr Kiatos in this proceeding occurred less than three years after the decision of the Tribunal in 1999, the issues in the present proceeding do not arise out of trust account irregularities, and are of a different character.
4. Mr Kiatos is 50 years of age, and has been in legal practice since 1989. Most of the time, he has been in a small partnership or a sole practice. His wife is now retired, but is a former secondary teacher. They have two adult children - one 24 and the other 20 years of age. Both children live at home, and are financially dependent on Mr Kiatos. The younger son has been accepted for study at university.
5. Mr Kiatos conducts a modest legal practice with gross fees of $134,416 for the year ended 30 June 2013 according to a certificate provided by his accountant John Topalides of Wellfield Accountants. Net fees received amounted to $73,566. Expenses of $55,468 were incurred in FY 12/13 leaving a net profit of $18,098.
6. Mr Kiatos has been involved as a defendant in Supreme Court proceedings. These proceedings were tried by Judd J in March and May 2013. On 24 May 2013, judgment was given against Mr Kiatos with damages to be assessed.[32] It appears very likely that damages will be assessed against Mr Kiatos in a substantial amount which he estimates at $600,000. Costs of the proceedings are also likely to be payable by him and will prove substantial.
7. Mr Kiatos owns no real estate. His wife owns their home valued at $850,000 and unmortgaged. She also owns land at Loch Sport valued at $150,000 with a small mortgage of $10,000. Her income as a secondary school teacher was previously $900 per week. As she has retired, her income will fall to $400 per week. She is not well disposed towards Mr Kiatos on financial matters. It should not be assumed that her assets are available to meet his debts.
8. Mr Kiatos produced a balance sheet of his assets and liabilities as at 30 June 2013 signed by Mr Topalides, his accountant. The balance sheet showed his total assets as amounting to $47,490 whilst his liabilities amounted to $175,119 with a net deficiency of $127,629. He has borrowed $52,500 from his brother, and $60,000 from his wife.
9. His Senior Counsel stated that Mr Kiatos suffers from depression, and feels stuck in a rut. He suffers from jaw clenching resulting in cracked teeth.
10. Mr Williams SC relied on delay as a mitigating factor referring to Legal Services Commissioner v Rallis.[33] He said that the present proceeding has continued over an extended period. The Commissioner received the first complaint on 14 August 2009. The process involved correspondence, responses to correspondence, further queries requesting that Mr Kiatos make statutory declarations, until January 2012 when the decision was made to file an application for order. All in all, Mr Williams SC submitted the investigation process has taken 2.5 years from the first complaint until charges were laid. Subsequently, there has been the need for a rehearing. We will take into account the delays that have occurred and the fact that the conduct of Mr Kiatos occurred as long ago as 2002.
11. Mr Williams SC submitted that a penalty and small fine would be appropriate referring to the case of Xu where the fine imposed for more recent unsatisfactory conduct was $1,500. He submitted that even if the charge against Mr Kiatos was considered to be professional misconduct the fine imposed should not be much more.
12. We are provided with, and have taken into account, references which speak very favourably of Mr Kiatos from a legal practitioner, Mr George Liberogiannis of George Liberogiannis & Associates, Lawyers of Carlton South, and Mr G.J. Parncutt of Counsel.
13. In determining a penalty we have sought to take into account the need to balance all of the relevant sentencing factors. We have taken into account the matrix of facts of this case, and the matters put by way of plea in mitigation. In all of the circumstances, we have decided that there should be a reprimand for professional misconduct, and a fine of $3,000. Costs will be reserved to be determined by the Tribunal unless resolved by the parties following the publication of this decision.

[1] Legal Services Commissioner v Kiatos (Legal Practice) [2012] VCAT 1695 (Member Butcher).

[2] See s 137 of the Legal Practice Act 1996 (Vic) ("the 1996 Act").

[4] Affidavit of Con Kiatos sworn 28 June 2013 [2].

[5] The name of the company adopts the initial letter of the first name of the three men.

[6] Affidavit of Con Kiatos sworn 11 February 2008 in the proceeding Papakostas v Betac Investments Pty Ltd, S CI 2008 4401.

[7] References to Annexures are omitted.

[8] NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, 291 [66] (Spigelman CJ, with whom Mason P and Handley JA agreed); A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253, 267-8 [20] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); Prothonotary of the Supreme Court of NSW v Livanes [2012] NSWCA 325 [26] and [28] (McColl JA, with whom Campbell and Meagher JJA agreed).

[9] The extended meanings of professional misconduct contained in ss 4.4.3(1) and 4.4.6 of the Act do not apply.

[10] Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, 763 (Lopes LJ) ("Allinson"); Re a Solicitor; ex parte The Law Society [1912] 1 KB 302, 311-2 (Darling J); Grahame v

A-G (Fiji) [1936] 2 All ER 992, 1002; Myers v Elman [1940] AC 282, 288-9 (Viscount Maugham); Re a Solicitor [1960] VicRp 96; [1960] VR 617, 622 (Dean J); Adamson v Queensland Law Society Inc [1990] 1 Qd R 498, 507 (Thomas J); Campbell v The Dental Board of Victoria [1999] VSC 113 [23]-[24] (Mandie J); NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, 286-7 [36]-[41] (Spigelman CJ).

[11] [2009] NSWCA 430; (2009) 236 FLR 480 ("Xu").

[15] (Unreported, Qld SCT/96, Ms C.C. Endicott (Presiding Member), Mr P. Mullins (Practitioner Member) and Dr J. Lamont (Lay-Member), 12 May 2005).

[16] [2008] NSWADT 82.

[19] Email from Anthony Chimonis to Mr Kiatos dated 27 June 2013.

[20] Authority of Anna Papakostas dated 6 November 2001. The authority given by Ms Papakostas as director of BTC is set out at [10] above. No point was taken on behalf of the Commissioner that this authority was given by Ms Papakostas, as director of BTC, and might not extend to execution of a guarantee in her personal capacity, where she personally acted as surety for BTC's debts. We will not consider this aspect further, as no party made submissions to this effect.

[21] [2000] IEHC 57; [2001] 1 IR 434 ("Dundalk").

[22] [1955] 2 QB 218, 223-4 (Romer LJ) (citations omitted) ("Agricultural Food Products").

[23] Dundalk [2000] IEHC 57; [2001] 1 IR 434, 439 (Finnegan J).

[24] [1988] FCA 355; (1988) 19 FCR 435 (Lockhart, Burchett and Gummow JJ).

[27] [1955] 2 QB 218, 222.

[28] [1894] 1 QB 750, 763; see [34] and footnote 10 above.

[29] [2009] VCAT 1445 [104]-[108] (Judge Ross VP and Members O'Halloran and Harper) (citations omitted).

[30] Re Con Kiatos & Chris Karamountzos (Unreported, Legal Profession Tribunal, Judge Spence (Deputy Chairperson), Members Horan and Sweeney, 2 July 1999).

[31] Sections 40(1)(b) and 41(1)(a)(i) of the Legal Profession Practice Act 1958 (Vic) and Rules 19 and 34 of the Solicitors Audit and Practising Certificate Rules 1990.

[32] Kambouris v Tahmazis [2013] VSC 271.

[33] [2009] VCAT 1445 [80] (Judge Ross VP, Members O'Halloran and Harper); See also R v Kane [1974] VicRp 90; [1974] VR 759, 767 (Gowans, Nelson and Anderson JJ).