1. The respondent is reprimanded in relation to the professional misconduct.
2. The respondent is to pay to the Legal Services Board a total fine of $50,000.00 as follows:
   • (a) $25,000 to be paid within 12 months of the date of his discharge from bankruptcy (the discharge date); and
   • (b) a further $25,000 to be paid within 24 months of the discharge date.
3. The respondent is to advise the Legal Services Board in writing of his discharge from bankruptcy within seven days of the discharge date.
4. Until 31 December 2020 while the respondent continues to hold a practising certificate, or until the respondent permanently ceases legal practice, whichever occurs sooner, pursuant to Section 4.4.19 of the Legal Profession Act 2004 the respondent's legal practice is to be subject to the following conditions:
   • (a) The respondent is to inform the Legal Services Commissioner (the Commissioner) in writing of any failure after today to comply with his taxation obligations within seven days of any such failure.
   • (b) On 1 July and 1 February in each year, commencing 1 July 2010 the respondent is to provide the Commissioner with a written report from Dr Jack Warhaft, or another medical practitioner satisfactory to the Commissioner, as to the respondent's continued physical and mental capacity to practice.
5. The respondent is to pay the Legal Services Commissioner's costs of this application, calculated on a party/party basis on County Court Scale D. In the absence of agreement as to the amount of the costs, the costs are to be taxed by the Costs Court.
6. The Tribunal certifies that it was reasonable for the Commissioner to engage senior and junior counsel.

1. Andrew Moore is an Australian Legal Practitioner practising as a barrister at the Victorian Bar. He was admitted to practice in 1983 and signed the Roll of Counsel in 1984. He practises in the field of criminal law, mainly as a prosecutor.

1. Mr Moore has been charged with professional misconduct within the meaning of section 4.4.3(1)(b) of the Legal Profession Act 2004. (:the Act"). This provides:

(b) conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

1. In the course of the hearing, leave was sought, and granted, to amend the charge so that it reads as follows:
   • Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act for engaging in conduct that justifies a finding that the Respondent was (my italics) not a fit and proper person to engage in legal practice namely the conduct which led to the Respondent becoming a bankrupt being his failure to meet his taxation obligations over the period from 1 July 1990 to 30 March 2007.

2. The facts as alleged were admitted by Mr Moore and he admitted that they gave rise to him having committed professional misconduct such that at the time he was not a fit and proper person to engage in legal practice. However, the position taken by the Legal Services Commissioner and by Mr Moore is that he is presently a fit and proper person to engage in legal practice. It is now necessary to analyse whether this is the case.

1. For the 17 financial years from 1 July 1989 to 30 June 2006, Mr Moore's gross professional fees came to a total of $2,470,394.00.
2. Mr Moore did not lodge income tax returns on time, make provision for payment of income tax or pay income tax for each of the 17 financial years.
3. Mr Moore did not lodge business activity statements in each of the quarters from 1 July 2000 to 30 March 2007 disclosing professional fees received, nor did he make provision for payment of goods and services tax or pay such tax in respect of that period.
4. On 26 April 2007, Mr Moore was convicted of 16 charges of breaching section 8C(1)(a) of the Taxation Administration Act 1953 (Cth) in respect of his failure to lodge income tax returns and 17 charges of breaching the same section in respect of his failure to lodge business activity statements on time. Mr Moore pleaded guilty to all charges.
5. The Australian Taxation Office took proceedings against Mr Moore in the County Court claiming the following amounts:
   • Income Tax $616,447.88
   • GST $94,667.00
   • Interest $221,452.85
   • Penalty $75,481.10

Mr Moore did not defend these proceedings and an undefended judgment was entered against him in May 2007.

1. On 12 June 2008, Mr Moore became bankrupt after filing a debtor's petition.

1. Section 4.4.4 of the Act provides that certain categories of conduct may constitute either unsatisfactory conduct or professional misconduct. They include:
   • conduct in respect of which there is a finding of guilt for a tax offence (subsection (c)(ii), and
   • conduct of an Australian legal practitioner as or in becoming an insolvent under administration (subsection (d))

The proper characterisation as to whether any such conduct constitutes unsatisfactory conduct or professional misconduct is determined according to the seriousness of the conduct.

1. At least so far as applied to remaining on the roll, fitness to practice is to be determined at the date of hearing: A Solicitor v The Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 at [21]. Further, an order to remove from the roll will only be made on a finding that the legal practitioner is at the date of the hearing probably permanently unfit for legal practice: see Speigelman CJ in New South Bar Association v Murphy (2002) NSWLR 23 at [25] and the cases cited there; Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93.
2. An enquiry as to whether section 4.4.3(1)(b) of the Act is satisfied is necessarily retrospective: it is whether conduct which has happened in the past justifies a finding that the legal practitioner at time of the conduct demonstrated unfitness to practice. However section 4.4.3(2) of the Act provides that in determining fitness to practice, regard may be had to suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practicing certificate
3. Section 2.4.4 of the Act deals with suitability to hold a local practising certificate. It enables the taking into account of "any suitability matter relating to the person" and any of the matters set out in subsection (1). However, subsection (2) provides:

A person may be considered a fit and proper person to hold a local practising certificate even though the person is within any of the categories of the matters referred to in subsection (1), if the Board considers that the circumstances warrant the determination.

1. The requirement for the Board to be satisfied that an applicant for the granting or renewal of a local practising certificate is fit and proper is set out in section 2.4.7 of the Act. In both instances , the requirement is expressed in the present tense.
2. The question to be determined is whether Mr Moore is presently a fit and proper person to engage in legal practice. In doing so, the Tribunal must consider whether Mr Moore's past conduct shows a probable permanent unfitness for legal practice.

1. Mr Moore has a history of alcohol and gambling addiction throughout the period in which he did not meet his tax obligations. Reports from Mr Geoffrey Cumins, Consulting Clinical and Forensic Psychologist, and Dr Nahum (Jack) Warhaft, consultant in addiction medicine, satisfy the Tribunal that clinic diagnoses of alcohol dependency and pathological gambling disorder were made in relation to Mr Moore. Further, the Tribunal is satisfied that these addictions are recognised as mental illnesses. The Tribunal also notes that Mr Moore's marriage broke down during this period.
2. Having regard to Mr Moore's admission of having committed professional misconduct such that at the time he was not a fit and proper person to engage in legal practice. It is not necessary to dwell further upon the events of the time. Rather, it is necessary to examine what followed.
3. The Tribunal is satisfied that Mr Moore consulted Dr Jim Taylor, Dr James Blackett and Dr Darren Fahroedin for help with depression, alcohol and gambling addiction in 2003. Any efforts to break the cycle of addiction were unsuccessful after a short period.
4. In mid-2006 Mr Moore received notices from the Australian Taxation Office regarding outstanding GST returns. He did not respond to these notices and his alcohol and gambling problems increased. In November 2006 he was served with charges for failing to respond to notices regarding outstanding GST returns. This is said to be the point at which Mr Moore came to grips with his addictions. With one exception, he ceased drinking alcohol at this point and ceased gambling. He engaged a firm of accountants to prepare all GST and income tax returns and on 27 November 2006 he entered into a 28 day addiction rehabilitation program. During the period that Mr Moore was undertaking the rehabilitation program further charges against him of failing to lodge tax returns were issued but not served. Four days prior to completing the rehabilitation program Mr Moore signed all completed outstanding returns and these returns were lodged by his accountant. On 26 December 2006 Mr Moore completed the rehabilitation program, was discharged and returned home.
5. In late January 2007 Mr Moore resumed work and in doing so he met with the then Director of Public Prosecutions and disclosed the charges which had been brought against him and the circumstances leading to those charges. He was later in that month served with further charges relating to tax returns. In March 2007 Mr Moore commenced treatment with Dr Jack Warhaft. It is worthy of note that Dr Warhaft was Medical Director of the Victorian Doctors' Health Program from 2001 to March 2007 and that during that period he managed about 80 doctors with substance use disorders. Dr Warhaft's report also states that he has treated and continues to treat a significant number of lawyers with alcohol and other drug dependency among the wide range of professional people referred to him. Dr Warhaft is now the Medical Director of the Addiction Recovery Program at Malvern Private Hospital.
6. At this point it is worthwhile to quote from Dr Warhaft's report:

Over 80% of doctors who had experienced substance use disorders - many of them very severe - have re-entered the profession and are serving the public with distinction. This includes a range of doctors - GPs, surgeons, anaesthetists, paediatricians etc - who, untreated and unmonitored would not have been permitted to practice.

I see Andrew Moore as being no different to these cases. His primary diagnosis of alcohol dependency and pathological gambling resulted in consequences that, although reflecting a failure to meet his civic responsibilities concerning his taxation affairs, are a direct consequence of his disease, over which he had no control whilst undiagnosed and untreated. (Dr Warhaft's emphasis) Accordingly, I believe that his problem be appropriately regarded as a medical disorder, and the serious legal consequences as being a direct result of the disease. He is of good character, and his work, from all accounts, has been beyond reproach.

He has no other mental health disorder. His primary treatment (VAC) [Victorian Addiction Centre] was very effective, and he has maintained his recovery over the three years (sic) my initial assessment. I have monitored his progress throughout Mr Moore (sic) and his recovery is progressing most satisfactorily. He has a robust relapse prevention program based on regular attendance at meetings of Alcoholics Anonymous (AA) and Gamblers Anonymous. He has entered into a Case Management, Aftercare and Monitoring Program agreement with me, and at no time have I ever had reason to doubt his honesty in relation to his self-reporting.

1. Dr Warhaft's report makes reference to Mr Moore having volunteered information that in December 2009 he consumed a small amount of alcohol on a few occasions but that no harm was done and that he has not consumed any alcohol since Christmas Eve. The report goes on to make reference to Mr Moore being fully engaged in recovery and that he has resumed his total abstinence program. Dr Warhaft expressed the view that Mr Moore's disclosure of this consumption of alcohol in December 2009 is an important sign of his rehabilitation. Dr Warhaft's report concludes with the view that Mr Moore has given every indication that he is committed to his recovery program and that if he continues this commitment his chances of relapse are minimal.
2. On 30 March 2007 Mr Moore wrote to the Victorian Bar Ethics Committee disclosing his circumstances including the forthcoming hearing in relation to charges brought against him and the likelihood of him becoming bankrupt.
3. In April 2007 Mr Moore was served with a County Court Writ for outstanding tax, interest and penalties.
4. On 26 April 2007 Mr Moore pleaded guilty to all charges in the Melbourne Magistrates' Court, was convicted and fined an aggregate amount of $7,500 together with costs of $242.00. The chronology placed before the Tribunal states that these amounts were paid in full.
5. In May 2007 judgment was entered against Mr Moore in the ATO's suit for outstanding tax etc. Mr Moore did not defend this proceeding.
6. Negotiations were entered into between Mr Moore's accountant and the Australian Taxation Office seeking to compromise outstanding matters between them. At one stage an offer was made on Mr Moore's behalf which would have involved the payment of a sum of money by Mr Moore's father and which, if paid, would have led to Mr Moore foregoing any benefit from his father's estate upon his father's death. This offer was not accepted by the ATO.
7. On 12 June 2008 Mr Moore became bankrupt following the lodgement of a Debtor's Petition. Warren White, a partner with PPB Chartered Accountants was appointed as his trustee in bankruptcy.
8. Mr Warren White wrote a letter dated 1 April 2010 addressed to the Tribunal. In this letter, Mr White states that to date Mr Moore has been assessed to pay compulsory income contributions as follows:
   • $37,985.36 for the Contribution Assessment Period 12 June 2008 to 11 June 2009 based on actual assessable income of $177,426.20
   • $37,874.98 for the Contribution Assessment Period 12 June 2009 to 11 June 2010 based on estimated assessable income of $173,592.65.
9. Mr White's letter continues to state that to date Mr Moore has made payments totalling $67,904.00 in respect of the above liabilities. Mr White continues by saying that should Mr Moore continue to act as a barrister and should his future assessable income reflect that of his current income Mr White estimates that Mr Moore will be required to pay a further $45,000 to his bankrupt estate for the remaining period of the administration and that should Mr Moore cease to act as a barrister it is unlikely that he will be required to pay further compulsory income contributions to his bankrupt estate. Mr White continues that based upon the figures referred to above he estimates that Mr Moore's bankrupt estate will receive approximately $112,904.00 from Mr Moore throughout the period of the administration. Further he notes that the sole unsecured creditor is the Australian Taxation Office.
10. Mr White's letter further states:

The bankrupt's conduct to date has been exemplary. The bankrupt has complied with all his obligations under the Act and has aided to the utmost of his power in the administration of his estate. All payments made by the bankrupt in relation to his compulsory income contribution liability have been made in a timely manner.

1. It has been submitted to the Tribunal that Mr Moore has continued to work hard as a barrister and that his fees have continued to increase. It has further been submitted that this is of no personal benefit to Mr Moore as his earnings above his protected income go to his bankrupt estate. This is said to be in contrast with the behaviour of certain barristers in another jurisdiction who, upon becoming bankrupt for failure to pay tax, contrived to earn no more than their protected income.
2. The Tribunal accepts that Mr Moore has continued to co-operate with the trustee of his bankrupt estate and has endeavoured to maximise the return to the estate.
3. A letter dated 30 March 2010 from Mr David Langley was also placed before the Tribunal. Mr Langley was appointed Mr Moore's accountant and tax agent on 10 April 2007 following a referral of Mr Moore to Mr Langley by Geoffrey Cumins, a psychologist. Mr Langley's letter states that since 1 July 2006 Mr Moore has lodged all income tax returns and business activity statements by the due date, excluding one quarterly BAS which was delayed by up to two weeks due to a minor communication error between Mr Langley's staff and Mr Moore. Mr Langley further states that all income taxes and GST due have been paid by the due date. Mr Langley also states that monthly payments to the trustee in bankruptcy have occurred on time every month. The payments upon initial assessment by the trustee from 19 June 2008 were $2,979.00 per month. Because Mr Moore increased his gross fees and taxable earnings during the year ended 30 June 2009 his payments to the trustee increased to $3,645.00 per month from 28 July 2009.
4. Mr Langley also states that Mr Moore has met all undertakings imposed by Mr Langley during the period of their association and that moneys received by Mr Moore's clerk are remitted (less disbursements) to a trust account held by Mr Langley's firm. Moneys are then remitted to his trustee. Mr Langley offers the following observation:

Based on my experience, it is uncommon for someone to continue to work as hard as he has done with these difficulties. He is to be commended for his dedication and discipline to the financial matters over this time.

1. Character references from five judges of the County Court of Victoria, two members of Counsel, a senior officer of the Office of Public Prosecutions, Chief Crown Prosecutor, and a prominent solicitor were placed before the Tribunal. All refer to Mr Moore having revealed his problems to the person giving the reference and all expressed their support and their endorsement of Mr Moore as an ethical, hardworking member of the Bar.

1. Normally the nature and extent of the wrongfulness of Mr Moore's admitted conduct would support a finding being made that as at the date of the hearing of the application he remained not a fit and proper person for legal practice and that this would be likely to continue indefinitely. However, regard must be had to the material that Mr Moore has filed about his present fitness to practice. In this regard, the Tribunal notes the words of Moffit P. (with whose reasons Hopes JA agreed) in the case of Johns v Law Society of New South Wales [1982] 2 NSWLR 1, 9-10:

Where there is misconduct prima facie requiring at that time a striking off order on the basis of then unfitness, the substance of the question whether then the matter comes for decision some years later is not dissimilar to the question arising upon an application for readmission, namely whether it appears that there is material before the court to lead it to conclude that the past proved unfitness has been changed to fitness. The ultimate onus is on the Law Society, but where there is admitted professional misconduct and a claim of rehabilitation or a fitness replacing unfitness, the court will look to what evidence there is to establish this change and will expect he who claims there is such a change to point to the evidence that there is.

1. The following matters may be concluded from the material placed before the Tribunal by Mr Moore
   • Mr Moore acknowledges the wrongfulness of his conduct, and has done so since it came to light.
   • Mr Moore has sought and obtained treatment for his addictions to gambling and alcohol. The reports in relation to the treatment indicate that Mr Moore's addictions are in remission and are likely to remain so provided that he continues his treatment, as he has done for the past three years.
   • Mr Moore has sought to rectify his past failings in relation to his taxation obligations. As a bankrupt he has done so to a greater extent than that which he would be compelled to do. His trustee in bankruptcy has described his conduct to date as exemplary. He has complied with all his obligations and co-operated in the administration of his estate. All payments have been made in a timely manner. It is worthwhile noting that in the course of negotiations with the Australian Taxation Office Mr Moore made an offer which was rejected by the ATO but which, if it had been accepted, would have resulted in payment of a greater sum than would be recovered as a result of Mr Moore's bankruptcy. This is the offer which would have been assisted by Mr Moore's father and which would have resulted in Mr Moore foregoing an interest in his father's estate upon his father's death.
   • The Tribunal regards it of great significance that Mr Moore has worked hard and has increased his earnings during the period of his bankruptcy in order to maximise the return to his bankrupt estate.
   • Mr Moore's behaviour since being charged with tax offences satisfies the Tribunal that Mr Moore acknowledges the importance of meeting his taxation obligations.
   • Mr Moore has been candid in his dealings with the Victorian Bar and the Legal Services Commissioner.
   • The numerous character references indicate that Mr Moore is currently a person who is fit and proper to engage in legal practice.
2. There can be no doubt that during the period that Mr Moore was not meeting his tax obligations he was not a fit and proper person to engage in legal practice. He admits this. However, upon the material placed before it, the Tribunal is satisfied that Mr Moore is now a fit and proper person to engage in legal practice. This is subject to the proviso that Mr Moore maintains treatment for his addictions.

1. Having concluded that Mr Moore is a fit and proper person to engage in legal practice, the Tribunal now considers the proposed orders sought by the applicant with the concurrence of Mr Moore. In essence they may be summarised as:
   • The remaining charge of professional misconduct as amended, the facts of which are admitted by the respondent is found proven.
   • The respondent is reprimanded for the professional misconduct.
   • The respondent is to pay a total fine of $50,000.00 to the Legal Services Board.
   • Certain conditions are to be placed upon Mr Moore's practising certificate.
2. It should be noted that a reprimand is not an insignificant determination in itself. In Peeke v The Medical Board of Victoria, unreported Supreme Court of Victoria 19 January 1994, Marks J expressed the view that a reprimand is not a trivial penalty. His Honour said that although a reprimand may be inappropriate or inadequate in many circumstances, to a professional person a reprimand had a potential for serious adverse implications. In Medical Practitioners Board of Victoria v Swieca [2009] VCAT 419 the Tribunal referred to Peeke and said that a reprimand should not be considered a slap over the wrist [for the practitioners].
3. It should also be noted that the amount of the fine is the maximum which may be imposed by the Tribunal.
4. The Tribunal considers that the proposed orders are appropriate and they are made accordingly.