I initially considered that the telephone number on the Complaints (which was D&B's number) was a relatively minor issue. On reflection, my view is that the fact that the telephone number and address were D&B's, not ABL's, goes to the heart of the misleading nature of the Complaints. It allowed the misleading impression created by the Complaint to be continued into any telephone calls made to that number, until and unless D&B corrected the impression or the person making the call independently realised they were not in fact speaking to anyone at ABL.

It is not necessary to find that a member of the public has actually been misled in order to find that the Complaints were likely to mislead the public. An objective assessment is made - is the Complaint as generated likely to induce error or misconception. That finding could be made, in my view, without the evidence of the Commissioner's witnesses. There is a clear representation that the telephone number and address are ABL's.

1. The evidence is relevant, however, in this way: the fact that a legal practitioner has actually been misled, even for a limited time, provides support to a conclusion that a member of the public is likely to be misled, and may be even less likely to realise the true situation. Ms Nomikos ought not to have allowed such a situation.

2. These are serious matters and I find that they constitute professional misconduct.

1. The fact that D&B's address and telephone number appeared on the Complaints also minimised Ms Nomikos' ability to directly control and supervise the proceedings and the communications relating to them.

2. It meant that D&B were able to receive and deal with all correspondence sent to the address, and answer and deal with all calls to the number on the Complaint. It meant that they were, effectively, able to handle the matter unless and until a defence was filed or they referred the matter to ABL.

1. D&B may have been doing so subject to Ms Nomikos' guidelines and instructions as to how calls were to be answered and what should and should not be said. In that sense, although they may have acted independently on a number of occasions, they were not entirely free agents. However, an inherent aspect of the arrangements was that if a defence was not filed or the matter otherwise referred to ABL, there was no involvement from ABL.

1. This is an entirely inappropriate delegation of the care and conduct of legal proceedings and of communications related to the proceedings, in my view. The arrangements, in practice, enabled D&B employees to handle the matter through to default judgement and enforcement, without any action on the part of the practitioner.

1. In Law Society of New South Wales v Foreman,[20] the Court of Appeal of the NSW Supreme Court considered the professional conduct obligations of a solicitor in relation to supervision of an unqualified clerk employed by the solicitor. The Court of Appeal relevantly held that:

• A failure by a solicitor to supervise the activities of an unqualified clerk in [his] employ, in circumstances in which [he] failed to understand the nature and extent of [his] obligation to supervise the clerk, could constitute professional misconduct on the part of the solicitor, even without dishonesty on the part of the solicitor;[21]

• The responsibilities of a solicitor for the proper conduct of the practice of which [he] is a part extend beyond [his] own actions and the work that [he] does;[22] and

• A solicitor must give attention to the extent of supervision necessary in each case and maintain a sufficiently close oversight of cases to ensure the principles are not inappropriately derogated.[23]

1. In this case, the distance between Ms Nomikos and the D&B clerk was necessarily greater because the clerk was not her employee. It was, in my view, an obviously hazardous arrangement for that reason.

2. The arrangements Ms Nomikos made in this respect only applied to Magistrates Court proceedings. In my view, it should not matter that the proceedings were brought in the Magistrates Court, nor that they involved relatively small amounts of money.

3. If a solicitor is on the record as the solicitor acting for the plaintiff in the proceedings, their professional obligations are no less important that proceedings in other Courts. There should be no distinction.

1. I find that Ms Nomikos failed to maintain direct control and supervision of the proceedings and communications. In all the circumstances, I am satisfied that the breaches of rule 29.2.3 are professional misconduct.

1. I find that Ms Nomikos is guilty of professional misconduct in that in breach of rule 29.1 she allowed the name of her firm to be used by D&B when lodging the Collins Simms Complaint in a manner that was likely to mislead the public by representing that:
   • A legal practitioner had prepared and signed off on the Complaint, when that was not the case. ABL had not settled the Complaint;
   • The address on the Complaint for ABL as solicitor for the plaintiff was PO Box 7008 St Kilda Rd Melbourne Vic 8004, when that address was neither the business nor the registered address for ABL;
   • A legal practitioner at ABL had lodged the Complaint when that was not the case
   • The telephone number on the Complaint for ABL was (03) 9828 3528, when that was not ABL's number; the number (03) 9828 3528 was a D&B number; and
   • The plaintiff had an entitlement to claim costs when that was that not the case.

1. In relation to Charge 2, I find that Ms Nomikos is guilty of professional misconduct in that in breach of rule 29.1 she allowed the name of her firm to be used by D&B when lodging the Nu Door Complaint in a manner that was likely to mislead the public by representing that:
   • A legal practitioner had prepared and signed off on the Complaint, when that was not the case. ABL had not settled the Complaint;
   • The address on the Complaint for ABL as solicitor for the plaintiff was PO Box 7008 St Kilda Rd Melbourne Vic 8004, when that address was neither the business nor the registered address for ABL;
   • The telephone number on the Complaint for ABL was (03) 9828 3528, when that was not ABL's number; the number (03) 9828 3528 was a D&B number;
   • A legal practitioner at ABL had lodged the Complaint when that was not the case; and
   • The plaintiff had an entitlement to claim costs when that was not the case.

1. I find that Ms Nomikos is guilty of professional misconduct within the meaning of section 4.4.4(a) of the Act by engaging in conduct in contravention of rule 29.2.3(i) of the Rules by failing to maintain direct control and supervision of the Collins Simms proceeding.

1. I find that Ms Nomikos is guilty of professional misconduct within the meaning of section 4.4.4(a) of the Act by engaging in conduct in contravention of rule 29.2.3(i) of the Rules by failing to maintain direct control and supervision of the Nu-door proceeding

1. In the 2012 proceedings, the Commissioner brings five charges of professional misconduct against Ms Nomikos. The charges relate to the period October 2009 to September 2011. In that period the Commissioner received a number of complaints and one request for an own motion investigation.
2. The complaints to the Commissioner arose from six separate letters of demand on ABL letterhead, and one Civil Complaint in which ABL is stated to be the solicitor for the plaintiff:
   • the Marsden letter(CreditCollect 2010);
   • the Rob Carr letter (D&B 2010);
   • the Edwards letter (CreditCollect 2009);
   • the Edwards Court Complaint (CreditCollect 2011);
   • the Cole letter (D&B 2010);
   • the Urabadi letter (D&B 2010); and
   • the Marshall letter (D&B 2011).
3. Each document is the subject of multiple charges. Because of the scope of the charges, it is necessary to consider each document and the evidence relating to it in some detail.
4. 2012 Charge 1 alleges that, in the period October 2009 to September 2011, Ms Nomikos contravened rule 29.1 by allowing the name of her firm to be used by a debt collection agency in a manner likely to mislead the public. The allegation is that each of the letters of demand listed above and the Edwards Complaint used ABL's name in a manner likely to mislead the public.
5. 2012 Charge 2 alleges that the Marsden and Edward's letters were misleading and deceptive and falsely represented the lawful entitlement of ABL's client to the named debtors. The allegation is that this constitutes misconduct at common law.[24]
6. 2012 Charge 3 alleges in relation to the Edwards Magistrates' Court Complaint that Ms Nomikos permitted or assisted the employee of CreditCollect (referred to as the law clerk) to engage in unqualified legal practice by drawing and settling the complaint and commencing legal proceedings, in breach of section 2.2.10(1) of the Act.
7. 2012 Charge 4 alleges that Ms Nomikos failed to exercise direct control and supervision over the proceeding commenced with the Edwards Magistrates' Court Complaint, in breach of rule 29.2.3(i).
8. 2012 Charge 5 alleges that Ms Nomikos failed to exercise direct control and supervision over the correspondence or communications to which she purported to be a party, in breach of rule 29.2.3 (ii). The charge relates to the six letters of demand.

1. The letters of demand have various dates in the period 2009 to 2011. They are not identical in form. A copy of each is in Annexure 1.
2. It is not in dispute that the respective debt collection agencies generated and sent the letters after receiving Ms Nomikos' authority to do so. They each had a small selection of precedents to use, drafted by Ms Nomikos; and ABL's letterhead was embedded in the agency's system, as was ABL's electronic signature.
3. Most set out at the top of the letter ABL's name, logo, Lonsdale St address and other details.
4. The Cole letter has ABL's name but D&B's address (the St Kilda Rd PO Box) and telephone numbers. The details are not identified as D&B's details.
5. The Marshall letter has ABL's name and logo but omits any contact details for ABL. Ms Nomikos could not explain this other than to say it was an IT glitch
6. Apart from the Cole letter, all include the relevant debt collection agency's address and telephone number on the right hand side of the letter, underneath ABL's details. The Rob Carr letter has separate address details for ABL and D&B but includes the St Kilda Rd PO Box under ABL's address details.
7. The D&B generated letters state 'Please direct all communications to: C/- Dun & Bradstreet (Aust) Pty Ltd'. In the body of the letter the recipient is directed to call 'our client's agent Dun & Bradstreet' with any queries.
8. The CreditCollect letters state: 'All correspondence to: CreditCollect'. In the body of the letter the recipient is directed to 'contact CreditCollect'.
9. All the letters represent that the named creditor is ABL's client. Apart from the Edwards letter, all state either 'we act for...' or 'we have instructions from...'
10. All letters end 'Yours faithfully A'Beckett Lawyers', followed by an electronic signature.
11. The particular ways in which the Commissioner alleges the letters to be misleading are not identical; but have some common elements such as:
    • that: the letter purported to be from ABL but was sent by an employee of the debt-collection agency; or
    • the letter stated that the debt-collection agency was ABL's client's agents when ABL's client was the debt-collection agency.
12. In some cases the alleged misleading representation concerns costs.
13. For example the Edwards Letter (1 October 2009) states:

'There will be significant legal costs incurred with the commencement of litigation which will be legally recoverable from you'

'Failure to finalise this matter may result in legal action being instituted against you and all costs incurred by our client will be borne by you'.

1. The Edwards Complaint is different to the Collins Simms and the Nu Door Complaints that were the subject of the 2011 proceedings. It gives the address for service of the plaintiff as:

1. It also gives the address of the 'Australian Lawyer for the Plaintiff 'in identical terms.

1. In this section of the reasons, under the heading of each document, I have set out a summary of the charges relating to the particular document, the relevant witness's evidence about the document, Ms Nomikos' evidence, and the findings made. I have set out a summary of the findings made at the end of the reasons.
2. There is necessarily more detail in relation to the first letter of demand.
3. Ms Nomikos' evidence about her arrangements with D&B and my findings about those arrangements in the previous section are relevant to the charges in this proceeding.

1. The charges relating to the Marsden letter are:
   • Charge 1: ABL's name used in a manner likely to mislead the public;
   • Charge 2: misrepresented the lawful entitlement of the creditor; and
   • Charge 5: failure to exercise direct control or supervision

1. Ms Marsden's mother, Carole, received the letter and asked for her help. Ms Marsden is a lawyer practising in Queensland. The letter was on ABL letterhead and headed 'Notice before Summons'
2. In the body of the letter the following statements are made:

We act for Fair Talk and are instructed that you are indebted to our client for an amount of $832.35.

You should be aware that in pursuing this debt, in addition to the amount of the debt our client has incurred costs of $50,00 which we expect you to pay. To avoid additional cost and inconvenience to our client you are requested to pay the amount of $832.35 to CreditCollect with the next three (2) working days of the date of this letter....

Failure to finalise this matter may result in legal action being instituted against you and all costs incurred by our client will be borne by you.....

If you have any further queries contact CreditCollect on the above number.

1. Ms Marsden was, she said, shocked and confused when she read the letter because it suggested to her that there had been previous correspondence with her mother about the debt claimed, when there had not.
2. She said her mother had a call in November 2009 from a telemarketer on behalf of Fair Talk and then received a letter from Fair Talk on 10 December 2009 confirming a package of a 'Residential Plan 24 month contract'. Mrs Marsden verbally cancelled the contract on 11 December 2009 and made a note on Fair Talk's letter to that effect. She then received the letter of demand dated 23 March 2010.
3. In April 2010 Ms Marsden telephoned the number on the notice. She was not sure which number she called. She was sure she asked to speak to the lawyer handling the file for her mother.
4. The person she spoke to gave the name 'Kylie'. Ms Marsden assumed the person was a lawyer. They had a discussion about the claim. Kylie said there was a verbal contract which was recorded. Ms Marsden said that if there was a verbal contract there was also verbal cancellation. She asked to see the transcripts of the conversations with her mother that FairTalk was relying on. Kylie said she didn't have them but would send them.
5. Kylie then called again and said that they would not pursue the debt any further. Ms Marsden repeated her request to see the transcripts and expressed her concern that the firm had written to her mother with no proof of the debt on the file. She asked that someone from the firm write and apologise to her mother for the anxiety caused by the threat of legal action.
6. Her mother received a letter from CreditCollect referring to the telephone conversation with 'Kylie of our office' and confirming that 'we have now closed our file'. She did not receive the transcripts. Neither she nor her mother received an apology.
7. Ms Marsden made a complaint to the Commissioner by letter dated 5 May 2010.
8. In cross-examination, Ms Marsden agreed that she didn't ask Kylie if she was a lawyer. She agreed that the letter from CreditCollect (confirming their file was closed) was clearly from a debt collection firm, and that the reference to 'Kylie of our office' meant she knew then that she hadn't been talking to solicitors. She said that was what prompted her to make the complaint.
9. Ms Marsden agreed that when she looked again at the original letter, in order to make the complaint, she would have realised that the letter from the solicitors directed all correspondence to a debt collection agency, and that it was a debt collection agency she had rung and spoken to.
10. Ms Marsden was cross-examined at length about the wording of her statement on the issue of her request for the transcripts, in her second conversation with Kylie, and on the concern that prompted her to write to the Commissioner.
11. She was also cross-examined on her assertion that a solicitor should have some proof of the debt before sending a letter of demand and asked what she expected the solicitor to do in a case where there is a verbal contract. She stated that she believed that the solicitor should either have listened to the tape or read the transcripts.

1. In the part of her witness statement responding to the Marsden complaint, Ms Nomikos stated:
   • At the time she was acting for Fair Talk in relation to a number of debts it was seeking to recover from its customers;
   • She had been provided with a copy of its terms and conditions;
   • At the time of authorising the Marsden letter, the instructions from the client, communicated by CreditCollect, were that the debt was owing. She relied upon those instructions from the client;
   • The letter is on ABL letterhead and was sent with her authority. It identifies that all correspondence is to be directed to CreditCollect and sets out the contact details of CreditCollect which are clearly distinguishable from those of ABL;
   • The letter does not identify the costs incurred as legal costs;
   • The complaint by Ms Marsden to the Commissioner does not state that she and/or her mother were misled The complaint is that a demand was made when no debt was owing;
   • The issue of whether the debt was in fact owing was sorted out within a very short period of the ABL letter being received;
   • She accepted that Mrs Marsden may have been upset and angered by the fact that she was sent a letter of demand when no debt was owing.
2. Ms Nomikos was not asked whether Kylie was a law clerk. It is not in dispute that she was an employee of CreditCollect.
3. She was asked what costs other than legal costs could be the subject of the statement that $50.00 costs had already been incurred. Ms Nomikos said that it could be contractual costs - if the terms and conditions provided for them. She agreed the only two possibilities were contractual costs or legal costs

1. The particulars to charge 1 refer to various paragraphs of the Commissioners application, for example, to paragraph 41 of the application for order, which alleges that the Marsden letter was false and misleading in that:
   • It purported to be from ABL but was actually sent by an employee of CreditCollect;
   • It purported to be a letter from a lawyer, but the contents included representations about the debt owing, possible legal action and the legal entitlement to costs that had not been analysed by a lawyer;
   • CreditCollect was a client of ABL. Fair Talk was not a client of ABL, contrary to the representation in the letter;
   • The alleged debt was not owing at all;
   • There was no present entitlement at law to a further $50.00 costs; and
   • The legal costs referred to ('failure to finalise this matter may result in legal action being instituted against you and all costs incurred by our client will be borne by you') are discretionary and would not necessarily be recoverable from the debtor.

1. Counsel for Ms Nomikos submitted that the only confusion relating to the letter was that Ms Marsden wrongly thought she was talking to a solicitor.
2. It is certainly the case that Ms Marsden was confused, and thought she was talking to a lawyer. Ms Marsden said that because the letter was on a solicitor's letterhead and referred to costs incurred and future legal action she assumed that there had been some history of communication between a law firm, their client and her mother.
3. She assumed that she was talking to a lawyer, she said, because she asked to speak to the lawyer handling the file. This is a reasonable expectation in my view
4. As indicated above in relation to 2011 charge 1, it is not necessary to find that someone has actually been misled in order to find that a document is likely to mislead.
5. Nevertheless, the fact that an experienced legal practitioner is misled, or at least confused, by the way in which ABL's name was used in the Marsden letter (name, logo, details, signature, the statement 'we act for Fair Talk) supports a conclusion that the letter would be likely to mislead a member of the public in a material way.
6. On its face, the letter purports to be sent by ABL. It was actually sent by CreditCollect. I find it was misleading in that respect. A person receiving it would reasonably assume that a law firm had sent the letter and was making the statements contained in it. In fact D&B generated and sent the letter.
7. The Commissioner alleges that the letter was also misleading in that the letter purported to be from a lawyer but its contents had not been analysed by a letter. I had some difficulty with the allegation and the use of the word 'analysed'. I am not sure that it carries that particular representation. In my view the representation is that the letter had come from a lawyer, and by implication, a lawyer had read or settled its contents.
8. I accept that Ms Nomikos authorised CreditCollect to send a letter to Ms Marsden, however, ABL did not see or sign the letter that was sent. CreditCollect used ABL's precedents and electronic signature that were already in their system to prepare and send the letter. I am satisfied that a lawyer had neither read nor settled its contents. In that more limited way, I find that it was misleading.
9. The Commissioner also alleges that contrary to the representation in the letter that ABL acted for Fair Talk, CreditCollect was ABL's client, not Fair Talk.
10. Although it is finely balanced, in the particular circumstances of this case, I am satisfied that ABL could be said to be acting for Fair Talk, but in a very limited way.
11. Instructions came from Fair Talk through CreditCollect to ABL. CreditCollect sought Ms Nomikos' authority to send a letter of demand. Ms Nomikos then authorised CreditCollect to send a letter in ABL's name on behalf of Fair Talk. Theoretically, CreditCollect could refer a query to ABL. In this way, ABL could be said to be 'acting' for Fair Talk.
12. If they were acting, however, it was in a limited or purely nominal way in my view.
13. ABL had no active involvement in correspondence or communications - the letter directed all correspondence and any queries to CreditCollect. A CreditCollect employee took the call from Ms Marsden, discussed the demand with her, made inquiries with Fair Talk and then made the decision to close CreditCollect's file. ABL did not open a file. In essence, ABL had no active involvement in any correspondence or communications once authority was given to send the letter.
14. While I am not satisfied that the letter misrepresents the identity of ABL's client, the fact that the letter directs all correspondence and communication to CreditCollect exposed Ms Nomikos to a breach of rule 29.2.3 which I discuss below.
15. The Commissioner also alleges that the letter was misleading in that it represented that a debt was owing, that there was a present entitlement to $50.00 costs and that if legal action commenced all costs incurred by Fair Talk would be borne by Mrs Marsden. I deal with those allegations below in relation to charge 2.

Did the Marsden letter misrepresent the lawful entitlement of Fair Talk?

1. Charge 2 alleges that the Marsden letter (and the Edwards letter discussed below) were misleading and deceptive and falsely represented the creditor's lawful entitlement to the named debtor in that:
   • the alleged debt was not in fact owing;
   • there was no present entitlement to a further $50.00 in costs; and
   • Legal costs are discretionary, contrary to the statement that 'failure to finalise this matter may result in legal action being instituted against you all costs incurred by our client will be borne by you.'

1. I am satisfied that the letter represents that costs of $50.00 have been incurred. As Ms Nomikos contended, the letter does not say that legal costs have been incurred but it states that 'our client has incurred costs, which we expect you to pay' [my emphasis], thereby representing in my view, that ABL has some reasonable basis for the expectation.
2. In cross-examination, Ms Nomikos did not concede that the costs would necessarily be legal costs and said there could be a contractual entitlement. She agreed that that the legal costs of a letter of demand could only be claimed when proceedings were issued, and that the letter does not refer to any contractual entitlement, but did not agree that the absence of such a reference meant that the costs were necessarily legal costs.
3. In this case there was insufficient evidence, in my view, to make a finding as to whether or not Fair Talk had any contractual entitlement to costs, and therefore any entitlement to claim $50.00 costs.

1. The more serious representation, in my view, is the statement that if legal action is taken 'all costs incurred by our client will be borne by you'.
2. The statement made about legal action costs in the Marsden letter is simply not true. It is not the case that if legal proceedings are instituted all costs incurred by a plaintiff will be borne by the defendant. The claim may not succeed. Even if the plaintiff is successful in its claim, not all costs incurred by the plaintiff will be recovered.
3. In this context, I note the relevant paragraphs of Ms Nomikos own costs disclosure documents, in evidence at the hearing. The copy of ABL's costs agreement as at January 2007, provided to D&B, contains the following:

The general rule in a court case is that the unsuccessful party pays a contribution to the costs of the winner on a party/party basis. The contribution is based on complex rules, which is often about 80% of the winner's total legal bill......

...After a court case is finalised, it is a general rule that the unsuccessful party pays a contribution to the costs of the winner. This is not an automatic right.....Because of the difference between party/party costs and solicitor/client costs, there will always be a shortfall which each party will be responsible to pay to their own lawyers

1. Counsel for Ms Nomikos submitted that Ms Nomikos was not cross-examined on the statement that if proceedings were issued all costs would be borne by the debtor. Although much of the cross-examination in relation to this and some other issues was not as clear as might be helpful, I am satisfied that in the cross-examination recorded at T303, Counsel for the Commissioner put the statement to Ms Nomikos together with the proposition that it effectively says the creditor will be the successful party in the proceeding. Ms Nomikos accepted that the letter says that.
2. I find the letter was misleading in stating that if legal action commenced all costs incurred by the creditor would be borne by the debtor, and misrepresented the creditor's lawful entitlement in that respect.

1. I am not satisfied that the Commissioner established that there was no basis for claiming that the debt was owing at the time the letter was sent.
2. Much of the cross-examination was directed to what Ms Nomikos should have done to satisfy herself that the instructions were correct, rather than whether the debt was owed.
3. The Commissioner did not clearly establish, for example, that Ms Nomikos had no basis for believing that the debt was owed. Her evidence was that at letter of demand stage she generally relied on the instructions of the creditor that the debt was owing. Any invoice number would be entered in the system, and one was in this case. She did not see it unless she asked for it, and didn't ask for it in this case.
4. Ms Nomikos, in her witness statement, accepted that Mrs Marsden may have been upset and angered by the fact that she was sent a letter of demand from a solicitor when there was no debt owing. I did not take that to be a concession by Ms Nomikos that there was no basis for the claim at the time it was made. Counsel for Ms Nomikos stated that his instructions were that the question of whether the debt was owing was never completely resolved and invited cross-examination about that. Ms Nomikos was not cross-examined on that statement.
5. The evidence established only the following: Ms Marsden wanted to see the evidence of the debt; asserted there had been a verbal cancellation in any event; and then CreditCollect withdrew the claim. While an indirect inference might be drawn from CreditCollect's action in withdrawing the claim, Briginshaw cautions against indirect inferences and I am not satisfied that it is appropriate to draw one here.
6. Counsel for Ms Nomikos made a further submission in relation to charge 2: that it alleges that Ms Nomikos misrepresented the lawful entitlement of 'her client' and that to do so is at odds with the particulars to Charge 1 - that ABL acted for CreditCollect, not Fair Talk..[25] I agree with that submission, on its face Charge 2 is inconsistent with the relevant part of charge 1.

Failure to maintain direct control and supervision?

1. Charge 5 alleges that Ms Nomikos failed to maintain direct control and supervision over correspondence and communications in her name, in breach of rule 29.2.3. The particulars refer to a number of paragraphs of the application which in turn refer to each of the letters of demand. I will make some general observations about the evidence here and specific findings in respect of each letter.
2. My overall conclusion about the arrangements Ms Nomikos had in place, as illustrated by the Marsden and other matters, is that Ms Nomikos did not maintain direct control and supervision over the communication and correspondence with the debtor to which she purported to be a party, and that charge 5 has been proven.
3. Once she had authorised the debt-collection agency to send a letter of demand in her name on behalf of the creditor she took no further action unless the debt-collection agency involved her.
4. The letters directed that all correspondence be sent to the debt collection agency and any queries be directed to them. In that sense, the layout and content of the letters of demand were less misleading than the Collins Simms and Nu Door Complaints - they did not disguise the identity of the organisation at the address and telephone number indicated. It meant however that Ms Nomikos effectively handed over the conduct of the matter - the recovery of the debt for a creditor by letter of demand and communication with the debtor.
5. Consistently, the persons the witnesses spoke to when they called were told that the person who answered the telephone was 'handling the matter'. In each case that person was an employee of the debt collection agency. But the context of the communications and any correspondence was a letter of demand on ABL letterhead which stated that ABL acted for the creditor client.
6. In the case of the communication with Ms Marsden, CreditCollect did not refer Ms Marsden to ABL, despite Ms Marsden's evidence that she was sure she asked to speak with the lawyer handling the file, which I accept. On the evidence, CreditCollect made the decision to close 'their file' without reference to Ms Nomikos. I find that Ms Nomikos did not exercise direct control and supervision in the circumstances.

1. For the reasons set out above, I find that
   • the Marsden letter used ABL's name in a manner likely to mislead the public, in breach of rule 29.1 (part of charge 1);
   • the letter misrepresented the lawful entitlement of Fair Talk to legal costs of any legal action (part of charge 2); and
   • Ms Nomikos failed to exercise direct control and supervision of the correspondence and communications, in breach of rule 29.2.3(ii) (part of charge 5).

1. The charges relating to the Rob Carr letter are:
   • Charge 1: ABL's name used in a manner likely to mislead the public; and
   • Charge 5: failure to exercise direct control or supervision

1. William Zemek is a lawyer practising in Queensland. While employed at Burns Law he acted for Rob Carr Pty Ltd. He received instructions to respond to a letter of demand the client received dated 1 September 2010.
2. The letter is on ABL letterhead. It has contact details for both ABL and D&B. The letter claims $8291.14 and states 'We have instructions from RSEA Pty Ltd to demand full and immediate payment of the amount due...'
3. Mr Zemek wrote to ABL on 7 September 2010. His letter is addressed to ABL C/- D&B at the address for D&B on the letter of demand, Level 7 479 St Kilda Road..
4. Mr Zemek's letter to ABL advises that his firm acts for Rob Carr Pty Ltd and asks for particulars of the details for the amount claimed including order forms and receipts for goods hired. He states his client's instructions that it has paid some invoices in error, and foreshadows a claim for refund of payment of invoices issued in error.
5. Mr Zemek asked that all further communications come to him. His client subsequently received correspondence including invoices and a statement.
6. Mr Zemek wrote again to ABL on 20 October 2010 noting that his client had received invoices and a statement, and noting also that he had previously requested particulars of the monies claimed and had received no meaningful response.
7. He also noted that in his 7 September letter he had asked that any further correspondence be addressed to 'this office'; and asked for confirmation that ABL was still acting for Rsea Pty Ltd. The letter ended 'If we do not hear from you within seven (7) days, we will write to your client directly'.
8. Some time after, he telephoned D&B at the number provided in the letter of demand. The person he spoke to told him that ABL would not yet know about the issue as the matter had not proceeded to them; and that the letter of demand had been drafted pursuant to an arrangement between D&B and ABL.
9. Mr Zemek said that the correspondence and conversations struck him as unusual. He was concerned about how a solicitor's firm could conduct the matter if it was not getting all the correspondence; he had not previously seen such an arrangement in all his time in practice, and the conversation with D&B led him to believe that ABL did not have control of their own letterhead. He also found it frustrating that he was not able to speak to the solicitor for the other party.
10. With his client's permission, he wrote a letter of complaint to the Commissioner on 7 January 2011.
11. In cross-examination, Mr Zemek agreed that he had written to ABL C/- D&B and by implication that he knew that letters were to be directed to D&B. He wasn't sure but didn't think he had tried to ring ABL - he said he likes to keep things in writing. He agreed that he says in his witness statement that he was curious as to what the arrangement was between ABL and D&B.

1. In her witness statement Ms Nomikos said that:
   • The Rob Carr letter was sent pursuant to her authority and in accordance with instructions received from the client through D&B;
   • The original amount of the debt owed was in the sum of $19,852.99;
   • A part payment had been received and a challenge made by the debtor as to the balance;
   • She was aware of these matters;
   • She was instructed that the client was not satisfied with the explanation of the debtor;
   • She was not privy to any conversations between Mr Zemek and D&B subsequent to 20 October 2010. She can only say that what he was told was contrary to her instructions;
   • She regrets that Mr Zemek's correspondence was not addressed in a more timely manner
2. In evidence in chief, Ms Nomikos said that she was aware of the debt and that there was a dispute about the balance owing. She believed it was resolved between D&B and Rsea and the debtor.
3. In relation to Mr Zemek's letter addressed to ABL c/- D&B, she said that such correspondence was not normally forwarded to her unless it went outside what D&B could handle. If there was a significant dispute then that would be an item for discussion, but if it was simple such as a payment arrangement, D&B would handle it.
4. Ms Nomikos was not cross-examined on the Rob Carr letter.

1. The Commissioner alleges that the Rob Carr letter was false and misleading by reason of the following[26]:
   • The letter purported to be from the respondent and/or her firm by reason , but was actually sent by an employee of D&B;
   • The respondent and/or her firm did not have instructions from Rsea Pty Ltd for her and/or her firm to send a letter demanding payment of the amount contrary to the statement 'We have instructions from Rsea Pty Ltd.;
   • The letter purports to be from a lawyer, the contents included representations about the debt owing, the commencement of legal proceedings and possible legal costs when the letter had not been analysed by a lawyer (the analysis representation);
   • The letter purported to give the respondent's postal address as PO Box 7008 St Kilda Rd Melbourne VIC 8004, being distinct from the address of D&B. The mail delivered to that postal address was collected and opened by an employee of D&B and not by the respondent;
   • D&B was the client of the respondent and/or her firm contrary to the statement 'We suggest you give this matter your urgent attention and remit the full amount directly to our client's agent, Dun & Bradstreet....'
2. For similar reasons to those relating to the Marsden letter, and the Collins Simms and NuDoor matters(in relation to St Kilda Rd PO Box address, I am satisfied that the Rob Carr letter was likely to mislead the public in the following respects:
   • Contrary to the representation that it was sent by ABL, it was in fact generated and sent by an employee of D&B;
   • Contrary to the representation that the St Kilda Rd PO Box was ABL's postal address, being distinct from the address given for D&B, the PO Box was D&B's postal address and not ABL's postal address. Mail delivered to that address was collected and opened by a D&B employee, and not ABL;
   • I am not satisfied that the letter carries the representation that a lawyer has 'analysed' the contents, but I am satisfied that there is a representation that a lawyer has sent the letter and before doing so either read or settled its contents. I find it misleading in that respect.
3. Counsel for Ms Nomikos submitted that the allegation that the letter was sent by a D&B employee is irrelevant if it was authorised by the Respondent.
4. The fact that Ms Nomikos authorised D&B to generate and send the letter in her name certainly means that she allowed her name to be so used, within the meaning of rule 29.1.
5. It does not assist her, in my view, in relation to the allegation that the letter was misleading in that it purports to have been sent by ABL, when in fact it was sent by D&B, even if D&B did so with her authority. In order not to be misleading in this respect the letter would probably have to say something to the effect of 'this letter has been sent to you by D&B, ABL has given D&B its authority to send the letter in ABL's name and to use ABL's letterhead.' If it did so, however, it might contravene other professional conduct obligations.

Does rule 29.1 envisage and permit the use of solicitor's letterhead by debt collection agencies?

1. In this context, I refer to the submission made Counsel for Ms Nomikos in relation to all the letters of demand: that rule 29.1 clearly envisages and permits a debt collection agency to use a solicitor's letterhead, and so the use of the letterhead cannot of itself be a breach of the rules.
2. The rule states:

29.1 A practitioner must not allow the practitioner's business name or stationery to be used by a debt-collection, or mercantile agent in a manner that is likely to mislead the public.

1. With respect to the submission, rule 29.1 is not a positive statement that a debt collection agency can use a solicitor's letterhead. It prohibits a solicitor from allowing the solicitor's business name or stationery by a debt-collection agency, in a manner that is likely to mislead the public. In this case, I have found that Ms Nomikos allowed her name and letterhead and signature to be used in a manner that was likely to mislead the public.
2. Whether or not there might be other circumstances in which a debt-collection agency could use a solicitor's business name and stationery without it being misleading, that is not a question that has to be determined in this case.
3. I find that Ms Nomikos is in breach of rule 29.1 in that she allowed her firm's name to be used in a manner likely to mislead the public in the above respects.
4. I am not satisfied that the letter is misleading insofar as it makes the statements "We have instructions from Rsea Pty Ltd...." and "our client's agent".
5. As Counsel for Ms Nomikos submitted, she was not cross-examined on either the Rob Carr letter or her specific evidence relating to it, which I have set out above. Her evidence was that she received instructions from the client through D&B, as the client's agent.
6. For the same reasons given in relation to the Marsden letter, I find that even though ABL could be said to be acting for Rsea Pty Ltd in the making of the demand, it was in a limited or purely nominal way. I am of the view that ABL was not acting for the creditors (in relation to the letters of demand) in any meaningful way, contrary to the impression given by the letter.
7. Further, the relationships between ABL, D&B and the creditor were not clear-cut, and this lack of clarity is a result, in my view, of the artificial nature of the structure that ABL had put in place.

Failure to maintain direct control and supervision?

1. As with the Marsden letter, the structure put in place by Ms Nomikos meant that she effectively gave up any direct control over correspondence and communications resulting from the letter of demand sent in ABL's name. All correspondence was directed to be sent to D&B. Mr Zemek's correspondence, addressed to ABL C/o D&B did not reach ABL. Ms Nomikos herself said that such correspondence was not normally forwarded to her unless it was outside what D&B could handle.
2. Mr Zemek's request that all further correspondence come to him was ignored. Contrary to his reasonable expectation, that any further correspondence would come to him and not his client, D&B sent documents directly to his client. His request, that ABL confirm whether it is still acting for Rsea Pty Ltd, was ignored.
3. When Mr Zemek telephoned D&B, the person he spoke to said that ABL would not yet know about the issue, as the matter had not proceeded to them. Ms Nomikos conceded that she was not privy to any conversations between Mr Zemek and D&B but that any such statement was contrary to her instructions. I concluded in relation to this and other issues that despite her instructions, D&B was clearly able to act independently of her.
4. I find that Ms Nomikos is in breach of rule 29.2.3(ii) in relation to the communications and correspondence arising from the Rob Carr letter.

1. For the reasons set out above, I find that
   • the Rob Carr letter used ABL's name in a manner likely to mislead the public, in breach of rule 29.1 (part of charge 1); and
   • Ms Nomikos failed to exercise direct control and supervision of the correspondence and communications, in breach of rule 29.2.3(ii) (part of charge 5).

THE EDWARDS LETTER: 1 OCTOBER 2009 & THE EDWARDS COMPLAINT

1. The charges relating to the Edwards letter are:
   • Charge 1: ABL's name used in a manner likely to mislead the public;
   • Charge 2: misrepresented the lawful entitlement of the creditor; and
   • Charge 5: failure to exercise direct control or supervision
2. The charges relating to the Edwards Complaint are:
   • Charge 1: ABL's name used in a manner likely to mislead the public;
   • Charge 3: permitted or assisted the employee of CreditCollect to engage in unqualified legal practice; and
   • Charge 4: failure to exercise direct control or supervision over the proceeding

The Edwards letter and Complaint: Michael Hermitage's evidence

1. Mr Hermitage is and was at all material times a Senior Solicitor at the Consumer Action Law Centre (CALC). In December 2010, CALC received instructions to act for Ms Edwards, also known as Kathleen Beaton. Ms Edwards had recently separated from her husband Mr Beaton.
2. She instructed CALC that she was being pursued by a college (Mary McKillop College) in relation to a debt. She said she had made a payment plan with the college Bursar who had recently died. She had made the agreed payments and the Principal told her there was no more to pay.
3. She had received a letter dated 1 October 2009. On 19 January 2011 Ms Edwards was served with a Magistrates Court Complaint claiming an alleged debt due of $4,363.30. She and her former husband were the defendants.
4. On 24 January 2011, Mr Hermitage sent a fax to ABL on the number shown on the Complaint: 03 5174 7088. He advised he acted for Ms Edwards and sought copy documentation relating to the dispute
5. On 25 January 2011 Mr Hermitage rang the number on the Complaint - 03 5174 7011. He spoke to a representative of CreditCollect who advised him that CreditCollect and not ABL acted for Mary McKillop College. The person confirmed that Mr Hermitage's fax had been received and that the copy documentation would be sent.
6. Mr Hermitage wrote to MsNomikos on 11 February 2011 and explained that the CALC acted for Ms Edwards. He also explained that he had telephoned the number on the Complaint and had spoken with a representative of CreditCollect.
7. Mr Hermitage observed that both the Edwards letter and the Edwards Complaint clearly indicate that ABL acts for Mary McKillop College not CreditCollect.
8. The Edwards letter is on ABL letterhead with ABL's contact details on the top of the letter. On the right hand-side it states 'All correspondence to : CreditCollect' and provides a Traralgon address. The telephone number provided for CreditCollect is 03 5174 7011. The fax number is 03 5174 7088.
9. The letter includes the following statements

Accordingly, unless payment of $4383.30 is received by our client or CreditCollect within the next three (3) days we will recommend to our client that legal action be taken without further notice. There will be significant legal costs incurred with the commencement of litigation which will legally be recoverable from you

1. The Edwards Complaint has the following statements on it:

Name and address of the Australian Lawyer for the plaintiff -

The plaintiff sues in the following representative capacity [none stated]

1. In cross-examination in relation to the Edwards letter and Complaint, Mr Hermitage agreed that the client had not made a complaint. CALC had made a request to the Commissioner for an own motion investigation.
2. In re-examination, Mr Hermitage agreed that Ms Nomikos' fax to him dated 18 March 2011 confirmed that the person he spoke with at CreditCollect was a very new employee who had not as yet been fully inducted or undergone training; and stated that ABL does act for Mary McKillop College and not for CreditCollect - that CreditCollect is an agent for the plaintiff.
3. Mr Hermitage said that the correspondence and the Complaint were confusing to him. He agreed that the letter and the Complaint both state that ABL acts for Mary McKillop College. What made the situation confusing was that CreditCollect told him - that they acted for the college.
4. He could not recall how the telephone was answered when he called.

1. In her witness statement Ms Nomikos said that
   • The letter of demand dated 1 October 2009 was sent pursuant to her authority;
   • The Complaint dated 20 January 2011 was issued pursuant to her authority and subject to her review;
   • At all material times the debt was owing. At all material times ABL acted for the college and not CreditCollect;
   • The address, telephone number and facsimile numbers on the Complaint and the letter of demand are not ABL's. The address of ABL is identified as being care of CreditCollect;
   • Any caller of that telephone number could be directed to her;
   • CreditCollect were instructed to direct any call to her if a caller wanted to speak with a lawyer or if they wanted to discuss the Complaint

1. For the same reasons as in relation to the relevant parts of the Marsden and Rob Carr Letters, I find that the Edwards letter misleading in that it purported to come from ABL but was actually sent by D&B The fact that Ms Nomikos has authorised D&B to send it in her name does prevent it from being misleading in this respect.
2. I also find that that the letter was misleading in relation to the costs of litigation. The reasons are also relevant to charge 2 - misrepresentation of the lawful entitlement of the creditor, set out below.

Misrepresentation of the lawful entitlement of the debtor?

There will be significant legal costs incurred with the commencement of litigation which will legally be recoverable from you.

1. Counsel for Ms Nomikos disputed the Commissioner's allegation that this statement is not necessarily true, and submitted that it is a standard clause in almost every letter of demand, one way or another, and the fact that all the costs may not be recoverable from the debtor does not stand as an impediment to such a clause being used.
2. I am not persuaded by the submission, and repeat and adopt the observations made about the similar statement in the Marsden letter. The statement is simply not true. Even if proceedings are commenced, the plaintiff may not prove its case. Even if it proves its case, it may not be awarded costs. Even if it is awarded costs, not all of those costs may be recoverable from the defendant.
3. The fact that a clause may be standard does not prevent it being untrue and misleading to the public. The law relating to misleading conduct, and in this case, the professional conduct rules, apply.
4. I find that the Edwards letter was misleading in this respect and misrepresented the lawful entitlement of the creditor.

The Edward's letter: failure to exercise direct control and supervision?

1. Mr Hermitage's evidence related to communication with CreditCollect after his client received the Complaint, which is discussed below. There is no other evidence about communications arising directly from the letter of demand on ABL letterhead and I make no findings in respect of Charge 5 insofar as it relies on the Edwards letter.

1. The Edwards Complaint differed from the two Complaints that were the subject of the 2011 proceedings (the Collins Simms and the Nu Door Complaints) in the details of the address for ABL. In Collins Simms and Nu Door, the address on the Complaint for ABL was D&B's address but it was not identified as such.
2. On the Edwards Complaint, ABL are stated to be the solicitors for the plaintiff but the address for ABL is 'C/- CreditCollect, Level 1/41 Grey Street, PO Box 1655 Traralgon Vic 3844.
3. The Commissioner alleges that the Edwards Complaint was false and misleading in that:
   • The respondent and/or a legal practitioner had not drawn and settled the Complaint;
   • The address of the respondent and/or her firm was not Level 1/41 Grey Street. PO Box 1655 Traralgon Vic 3844;
   • The telephone and facsimile numbers of the respondent and/or her firm were not 03 51747011, and 03 51 747088 respectively.
4. Counsel for Ms Nomikos submitted that Ms Nomikos gave evidence that she had discussed the particulars with a law clerk and was not cross-examined about this.
5. I refer to and adopt the discussion in relation to the Collins Simms Complaint. For the reasons set out there I am not satisfied that Ms Nomikos has settled the complaint. I accept that she had some involvement in the content - she had provided precedents to CreditCollect and had a meeting with the clerk where the particulars were viewed by her. She had no involvement after that meeting and did not see or sign off on the document as prepared and generated by CreditCollect. If Ms Nomikos or another lawyer had done so they would be expected to have picked up the errors that Mr Hermitage noted.[27]
6. According to the Statement of Claim, the plaintiff 'Mary McKillop Catholic Regional College' is a company but the Complaint does not bear any of the usual details such as an ACN and identification as a private or a public company. In addition, the Complaint contains the statement 'the plaintiff sues (or the defendant is sued) in the following representative capacity.' None is stated.
7. In relation to the address and telephone number, there is no doubt that they are not ABL's address and telephone number, they are the address and contact details of CreditCollect.
8. Counsel for Ms Nomikos submitted that the Complaint does not give the details as belonging to the firm ABL but clearly indicates it is C/- CreditCollect at the address, telephone and facsimile number. It is submitted that there is nothing in the submissions of the Commissioner which suggests it is a breach of any practice rule or statute and it is certainly not false and misleading.
9. In my view, the Complaint represents that ABL's address is C/- CreditCollect at the address provided. It is reasonably clear that the address provided is CreditCollect's address in Traralgon. But it is also clear on the evidence that ABL's physical and postal addresses are in the CBD of Melbourne and not Traralgon. ABL does not carry on business at that address in Traralgon.
10. Insofar as 'C/- CreditCollect' is stated to be the address of ABL, and is not in fact ABL's address the Complaint is misleading in this respect.
11. To have allowed that address to be on the Complaint would also appear to be in breach of the Magistrates Court requirements, described by Ms Paton, that a solicitor on the record provide the solicitor's business address.
12. I make the same findings in relation to the telephone and facsimile numbers.

The Edwards Complaint: failure to exercise direct control and supervision?

1. On the evidence, I find charge 4 proven in respect of the Edwards Complaint. The person Mr Hermitage spoke to clearly acted outside Ms Nomikos' direct control. Her letter to Mr Hermitage dated 18 March 2011 stated that the person was a very new employee who had not yet been fully inducted or undergone training. That may well be so but Ms Nomikos authorised CreditCollect to issue the Complaint, with CreditCollect's telephone number on it, and that person answered the telephone and spoke to Mr Hermitage, asserting that CreditCollect and not ABL acted for Mary McKillop College.
2. As with the Collins Simms and Nu Door Complaints, the fact that Ms Nomikos allowed a mercantile agent's address and telephone number to be on the Complaint, instead of her own, meant that she gave up the ability to directly control and supervise the correspondence and communications with alleged debtor's or their representatives.

The Edwards Complaint: permitting or assisting unqualified legal practice?

1. The Commissioner's application for orders, paragraph 74, alleges that Ms Nomikos 'permitted or assisted the employee or representative of Credit Collect (referred to as a law clerk) who was not an Australian lawyer to engage in legal practice'. The allegation is the subject of 2012 charge 2. In contrast to the equivalent charge in the 2011 proceedings, particulars are provided.
2. Paragraph 74 has the following particulars of this allegation:

(i) the drawing and settling of the Edwards court complaint which was subsequently filed and issued in the Magistrates' Court of Victoria at Korumburra; and

(ii) commencing legal proceedings on behalf of Mary McKillop Catholic Regional College allegedly an incorporated entity, against Kathleen Edwards as the second defendant for the amount of $4,363.30 using the EDI system and applying the name and solicitor's code of A'Beckett Lawyers.

1. The Commissioner's closing submissions dated 17 May 2013 went well beyond the allegation and the particulars to the allegation.[28]
2. The submissions referred in part to witness statements of Ms Marsden, Mr Zemek, Ms Nordlinger. None of those witness statements related to the Edwards Complaint which is the only subject of charge 2. The submissions also referred to Mr Hermitage's witness statement in relation to the Cole letter, which is also not the subject of charge 2. They further referred to conduct not specifically alleged in relation to the Edwards Complaint.
3. On 19 June 2013, the Commissioner filed 'supplementary closing submissions' after the hearing on 13 June 2013, which was for final oral submissions.
4. At the close of that hearing, the Tribunal had invited Counsel for Ms Nomikos to reduce any further submissions to writing, because the Commissioner's oral submissions had taken well over half the available time. This invitation may have been mistaken for a general one.
5. In any event, the supplementary closing submissions included some substantial allegations as to Ms Nomikos' intent and motivation, which were neither alleged nor put to her in cross-examination. I have disregarded any such new matters.
6. Insofar as the Commissioner's submissions can be said to relate to the Edwards Complaint and Mr Hermitage's evidence in relation to that Complaint, they were that the legal practice comprised:
   • [Corresponding or communicating with debtors or their legal advisers about] negotiating a release from any debt claimed by reason of a subsequent agreed payment plan with the creditor (referring to paragraphs 10-13 of Mr Hermitage's statement;
   • [Corresponding or communicating with debtors or their legal advisers about] the contents of complaints and conduct of legal proceedings issued in the Magistrates' Court including jurisdictional issues and who has instructions to act for the client creditor, where no defence was currently filed (referring to paragraphs 13-14 of Mr Hermitage's statement;
   • Utilising her firm's name, her solicitor's code and the list of precedents Ms Nomikos provided to draft, settle and issue the Complaint;
7. The Commissioner submitted that the conduct listed in the submissions was not mere work of an administrative nature.[29]
8. The evidence of Mr Hermitage relevant to this charge was that:
   • On 24 January 2011 he sent a fax to ABL to the number shown on the Edwards Complaint advising that he acted for Edwards and seeking copy documentation relating to the dispute;
   • On 25 January 2011, he rang the number on the Edwards Complaint and spoke to a representative of CreditCollect who advised him that CreditCollect and not ABL acted for Mary McKillop College. The person he spoke to confirmed that the fax had been received and that the documents requested would be sent;
   • He wrote to Ms Nomikos on 11 February 2011 and explained that CALC acted for Ms Edwards. He also explained that he had telephoned the number on the Edwards Complaint and had spoken with a representative of CreditCollect, not ABL.
9. Ms Nomikos' evidence about the Edwards Complaint was, in summary, that:
   • The Complaint dated 20 January 2011 was issued pursuant to her authority and was subject o her review;
   • At all material times, ABL, not CreditCollect, acted for the College;
   • The telephone number and address on the Complaint are not ABL numbers;
   • Any caller of the telephone number could be directed to her:
   • She instructed CreditCollect to direct any call to her if a caller wanted to speak with a lawyer or discuss the Complaint.
10. Further relevant evidence was that Ms Nomikos sent a letter to Mr Hermitage stating that the person who answered the phone was new and not yet trained.
11. There was no evidence that the person Mr Hermitage spoke to was a designated law clerk for the purposes of Ms Nomikos' arrangements with CreditCollect; and for the purposes of the charge. There was no evidence identifying the name or the role of the person who issued the Complaint.
12. Counsel for Ms Nomikos submitted in relation to this charge (and the equivalent charge in the 2011 proceedings) that:
    • The evidence was unsatisfactory - the charge had not been proven to the Briginshaw standard;
    • The Commissioner must prove that a person who was not an Australian lawyer engaged in legal practice. No such person is identified;
    • One or more individuals may have performed one or more of the activities relied upon by Counsel for the Commissioner in final submissions. There was no evidence that any one individual performed all of the activities;
    • Some of the activities referred to are work that would be done by mercantile agents on a daily basis;
    • The Magistrates Court permits mercantile agents to utilise a solicitor's name and code;
    • In none of the authorities relied upon by the Commissioner[30] was the person under the close direction of an authorised legal practitioner. Rather each of them was representing that he or she was a solicitor in competition with practising solicitors.
13. I have found, in relation to other charges in the proceeding that ABL were acting in the various matters, albeit in a limited or nominal way. I have found in relation to the Edwards Complaint that Ms Nomikos had some involvement in the issuing of the Complaint - she authorised it to be issued in her name - and had some involvement in the drafting of it - to the extent that she provided the precedents used by CreditCollect.
14. I have also found that she did not have direct control and supervision over the proceedings. But she had notional control over them to the extent that she had to authorise them. And theoretically she had some supervision over them: the problem was that her instructions were not carried out.
15. The authorities relied upon by the Commissioner are cases where the unqualified person was acting alone, save for Law Society v Waterlow.[31] . The authorities are useful in illustrating what may be unqualified legal practice, but they do not illuminate the issue of when a solicitor may be found to have permitted or assisted an unqualified person to engage in legal practice, which is the charge here.
16. In my view, the arrangements Ms Nomikos put in place were hazardous.
17. Allowing CreditCollect's address and telephone number to be on the Complaint, in practice gave them considerable authority and the opportunity to act in place of her. It increased the risk that they would act independently of her. It blurred the lines between a solicitor using a debt-collection as an agent for certain tasks in the proceeding, and a debt-collection agency having the running of the proceeding. It potentially exposed the debt-collection agency to the risk of engaging in unqualified legal practice.
18. In this instance, the person Mr Hermitage spoke to asserted that ABL did not act for Mary McKillop College (and did not refer Mr Hermitage to ABL). Ms Nomikos asserted the contrary, and in effect said that the person at CreditCollect was wrong.
19. If the evidence had been clearer on the question of who was acting for Mary McKillop College, the charge might have been proven. If Ms Nomikos had any less involvement in the proceedings, the charge might also have been proven.
20. Similarly, if there had been any clear evidence that the designated law clerk, whoever that might be, had issued the Complaint, undertaken the communications with Mr Hermitage, and kept the matter away from ABL, the charge might have been proven.
21. As it was, I was concerned by the evidence, and the fact that Ms Nomikos did not apparently see the problem in a Magistrates' Court Complaint that had, as her address, 'C/- Credit Collect', and Credit Collect's telephone number instead of her number, when she was the solicitor on the record.
22. With Briginshaw in mind however I am not satisfied to the required degree that charge 2, as alleged, has been proven.

1. In relation to the Edwards letter, I find that Charges 1, 2 and 5 are proven. Ms Nomikos has engaged in conduct in breach of rule 29.1 and rule 29.2.3, and section 4.4.3(1)(a) of the Act (misconduct at common law)
2. In relation to the Edwards Complaint, I find that Charges 1 and 4 are proven and that Ms Nomikos is in breach of rules 29.1 and 29.2.3. I find Charge 3 not proven.

1. The charges relating to the Cole letter are
   • Charge 1: ABL's name used in a manner likely to mislead the public;
   • Charge 5: failure to exercise direct control and supervision

1. Mr Hermitage said that he received instruction in July 2010 when Ms Cole rang CALC's advice line. She had received a letter from D&B dated 13 July 2010 on behalf of Cengage Education Pty Ltd.
2. Mr Hermitage wrote to D&B on Ms Cole's behalf on 26 July 2010. The letter raises a potential counterclaim against Cengage for misleading conduct. He did not receive a response.
3. Ms Cole then received a letter on ABL letterhead dated 24 August 2010. The letter states that ABL acts for Cengage.
4. Mr Hermitage sent a letter to ABL, dated 26 August 2010. The letter enclosed a copy of Mr Hermitage's previous letter to D&B. He did not receive a response.
5. On 6 September 2010, Mr Hermitage wrote again to ABL enclosing a copy of an application to VCAT. Ms Cole is the applicant. Cengage is the respondent. The application claims damages for misleading or deceptive conduct and unconscionable conduct.
6. Some weeks later Ms Cole told Mr Hermitage that she had received a call from a representative of Cengage advising her that their claim against her would be withdrawn. She asked for confirmation but did not receive any. Mr Hermitage wrote to ABL on 30 November 2011 asking for confirmation that the Cengage claim had been withdrawn.
7. On 23 December 2010, Mr Hermitage rang the telephone number printed on the Cole letter - 1300 738 024. He spoke to a person who said she could only place his call with D&B. She transferred him to a D&B case handler who said the Cole letter had emanated from D&B, and ABL did not act for Cengage, it acted for D&B. In cross-examination, he agreed that at that point he knew he was speaking to a D&B person and not someone at ABL.
8. Eventually Mr Hermitage spoke with a person called Luke[32], who identified himself as a team leader at D&B. He told Mr Hermitage that he had had no contact with A'Beckett Lawyers 'here' and that he had closed the file on 16 December 2010.
9. Later that day Mr Hermitage rang the number again and spoke to a person called Kenja. She told him D&B had closed their file and that she had no idea of the position relating to the litigation. Kenja suggested he contact Ms Nomikos of ABL to discuss the matter and gave him a new number. He then entered into correspondence with ABL about his concerns. In cross-examination, Mr Hermitage agreed that Ms Nomikos told him that the debt had been written off.
10. Ms Cole independently withdrew the VCAT claim. She had received notice of a hearing on 5 January and had been unable to contact anyone at CALC due to the Christmas break.
11. The Cole letter has ABL's name and logo at the top. No separate contact details for ABL are provided. The contact details are D&B's: the St Kilda Rd PO Box and the telephone number 1300 738 024.
12. The letter contains the following statements:

We are instructed that you have been given full opportunity to settle this debt. We therefore ask that you consider all options for payment, and contact our client's agent, Dun & Bradstreet (Australia Pty Ltd on 1300 365 553 to arrange payment no later than 31/08/2010.

1. In her witness statement Ms Nomikos said:
   • At all material times the debt was owing. D&B sent a letter of demand on 13 July 2010. CALC responded on behalf of the debtor on 24 July 2010;
   • On about 24 August 2010 ABL were instructed by Cengage through D&B that the debt was outstanding;
   • ABL's letter of 24 August 2010 was sent with her authority;
   • The telephone number and the facsimile number were not numbers of ABL;
   • Any caller of that number could be directed to her;
   • The body of the letter instructs the debtor to call D&B on the given number to make arrangements for payment. D&B are identified as the client's agent;
   • ABL received CALC's letter dated 26 August 2010. ABL had not had sufficient opportunity to respond to the matters in it when it received CALC's 6 September letter enclosing the application to VCAT;
   • ABL sought instructions from the client and was advised by the client that it would deal with the matter directly;
   • ABL had no further instructions in relation to the matter after 6 September 2010.

1. The application for orders alleges that the Cole letter was misleading in that it;
   • Purported to be from Ms Nomikos and/or her firm but was actually sent by an employee of D&B;
   • Purported to be a letter from a lawyer but the contents had not been analysed by a lawyer;
   • ABL's address was not the St Kilda Rd PO Box but was 530 Lonsdale St;
   • The telephone number for ABL was not 1300 738 024 - that was a number answered by representatives of D&B;
   • The facsimile number for ABL was not 1300 489 944 but was 03 9602 1282;
   • D&B was the client of ABL contrary to the statement in the letter.
2. For reasons given previously in relation to the issue of who sent the letter, I find that it purported to be from ABL but was sent by D&B and was misleading in this respect.
3. Unlike other letters in this case, the Cole letter had no separate address for D&B. The letter represents, in my view, that ABL's address and contact details are those stated. The address and numbers given are D&B's. The letter is misleading in that respect.
4. As with the Rob Carr and other letters, I am not satisfied to the required degree that the allegation that the letter represented that the contents had been analysed by a lawyer is made out, but that it is misleading in the more limited way that it represents that a lawyer has seen and/or signed off on the letter.
5. Also for the reasons set out in relation to the Rob Carr and other letters, I am not satisfied to the required degree that the allegation that D&B was ABL's client is made out in the particular circumstances here.
6. I find that in relation to the Cole letter, in breach of rule 29.1, Ms Nomikos allowed her firm's name to be used by a debt-collection agency in a manner likely to mislead the public.

Failure to exercise direct control and supervision?

1. I find that Ms Nomikos had no direct control and supervision of the correspondence and communications in the period 6 September to 23 December 2010, to which her firm purported to be a party. D&B told her it would respond to Mr Hermitage's letter addressed to ABL enclosing a copy of an application to VCAT. Ms Nomikos said that she had no further instructions after that date but did not advise Mr Hermitage who continued to correspond with ABL. Mr Hermitage wrote again to ABL in November seeking clarification about whether the proceeding would be withdrawn, as Ms Cole had been told. .
2. When Mr Hermitage called the number on the Cole letter, on 23 December 2010, the first person he spoke with told him she could only place his call within D&B. The second person he spoke to, a D&B case handler, told him that ABL acted for D&B and did not act for Cengage. The third person he spoke to, the team leader Luke, told Mr Hermitage he had had no contact with ABL.
3. All except Kenja acted contrary to the instructions Ms Nomikos said she had in place. In contrast to the other D&B employees, when Mr Hermitage spoke with Kenja later that day, she suggested he contact Ms Nomikos to discuss his concerns and gave him a number to call.
4. I find charge 5 proven.

1. The charges relating to the Urabadi letter are
   • Charge 1: ABL's name used in a manner likely to mislead the public;
   • Charge 5: failure to exercise direct control and supervision

1. Mrs Urabadi made a witness statement and gave evidence by telephone. The letter of demand in question relates to an alleged claim by Telstra for money owing.
2. Mrs Urabadi lives and works in the Warruwi Community on Goulburn Island. Goulburn Island is off the Northern Arnhem Land Coast about 300 kilometres from Darwin, in the Northern Territory. Travel to and from the mainland is by light aircraft to Darwin.
3. Mrs Urabadi described some problems she had in around March 2008 paying her Telstra bill. In March 2008, Telstra told her she owed them more than $1400.00. She was very worried about this high bill. She tried to pay when she could. She paid about $100 a few times when she could.
4. In June 2010, she started getting letters from D&B. She received three letters from D&B dated 24 June 2010,[33] 2 July 2010,[34] and 9 July 2010.[35] She was confused and worried by them as she thought she had been paying Telstra. She rang the Northern Australian Aboriginal Justice Agency (NAAJA), who helped her set up some payments to Telstra.
5. Then in about July 2010, she received a letter from some lawyers that said she had to pay money to Telstra or they would take her to court. She was very worried.
6. Then the letters stopped. She never knew what happened. In about March 2011 she spoke about the letters to a lawyer from Northern Territory Legal Aid Commission called Lauren, who was visiting Warruwi. Mrs Urabadi said that Lauren helped her to find out she had paid Telstra already and get some money back because Telstra had made a mistake. Lauren told her the lawyers did the wrong thing sending that letter saying they were taking her to court.
7. In cross-examination, Mrs Urabadi confirmed that after she received the demands she paid some money; $500.00 then $50.00 regularly between August and October 2010 and then the balance was written off. She confirmed that her concern was that she might have to go to court because she got letters from a lawyer. Mrs Urabadi confirmed NAAJA helped her pay the bill.
8. I accept Mrs Urabadi's uncontested evidence about the letters she received and the impact on her.

1. Ms Nomikos stated that:
   • Telstra referred the debt to D&B after sending a final notice in May 2010;
   • D&B issued three letters of demand and received no response or payment;
   • On 19 July 2010 D&B sent a letter on ABL letterhead to Mrs Urabadi. The amount outstanding was $854.81;
   • Ms Nomikos authorised the letter to be sent;
   • The letter identifies the St Kilda Rd PO Box as an address of ABL. That PO Box was owned by ABL. The letter asks that all correspondence be directed to D&B and sets out an address, telephone and facsimile numbers for D&B. The substance of the letter encourages the debtor to contact D&B in the first instance;
   • No payment of any part of the debt was made by Mrs Urabadi until 9 August 2010 when she paid the amount of $550.00 She then entered into an instalment arrangement and paid the balance by 25 October 2010. The payments were negotiated on behalf of the client by the D&B account manager and ABL had no further involvement.

1. In relation to the Urabadi letter the Commissioner alleges that it was false and misleading in the following respects:
   • The letter purported to from Ms Nomikos and/or her firm but was actually sent by an employee of Dun & Bradstreet;
   • The letter purported to be from a lawyer but was sent by a non-lawyer;
   • The PO Box address listed underneath the street address for ABL purported to be different to the address for D&B, but the PO Box was actually collected and opened by an employee of D&B;
   • D&B was the client of ABL contrary to the statement in the letter.
2. For the reasons given in relation to other letters, I find that the letter was misleading in that it purported to be from a law firm but was sent by D&B; and the address was misleading. I am not satisfied that Telstra was not a client of ABL. In the particular circumstances here.
3. I do not have to find that Mrs Urabadi was actually misled in order to find that this letter breaches rule 29.1. I am satisfied however that Ms Urabadi was misled.
4. Mrs Urabadi gave compelling evidence about the impact on her of receiving the letters, including the letter on ABL's letterhead. I am satisfied that she thought a lawyer had sent her the ABL letter, that a lawyer was threatening to take her to court and that as a consequence she had better pay the money quickly.
5. This evidence in relation to this letter illustrates the harm that can result from a lawyer allowing his or her name to be used by a debt collection agency in a manner that is likely to mislead the public.
6. I find charge 1 proven in respect of the Urabadi letter. There was insufficient evidence to make any finding in relation to charge 5.

1. The charges relating to the Marshall letter are
   • Charge 1: ABL's name used in a manner likely to mislead the public;
   • Charge 5: failure to exercise direct control and supervision

1. Ms Nordlinger is a retired barrister. Before joining the Victorian Bar she had worked at Corrs Chambers Westgarth for ten years and was a partner at Corrs for approximately five of those years.
2. In August 2011, Ms Nordlinger received a letter at her Middle Park home addressed to Jennifer Marshall, a friend of Ms Nordlinger. Ms Nordlinger thought that was strange. Ms Marshall lived in Tasmania. She had lived with Ms Nordlinger for a period of time in 1993 to 1994 but not since, and had a separate PO Box for mail delivery during that time.
3. With Ms Marshall's permission, she opened the letter. The letter was on D&B letterhead and demanded $292.75 in relation to an alleged outstanding Telstra account. Ms Marshall said she had no knowledge of the debt and sent an email to Telstra. The email, attached to Ms Nordlinger's witness statement, gave the reference number on the D&B letter and asked for a copy of the itemised invoice.
4. Two more letters arrived at Ms Nordlinger's house for Ms Marshall: a second letter from D&B dated 16 September 2011 and a letter on the letterhead of ABL dated 26 September 2011. Ms Marshall had come for a visit and they opened both letters. Ms Marshall said she still didn't know what they related to, she was receiving monthly bills from Telstra that she paid promptly and had had no other notice of any monies owing.
5. The ABL letter attached to Ms Nordlinger's witness statement has at the top ABL's name and logo. It has no contact details for ABL. It states 'Please direct all correspondence to C/- D&B' and sets out D&B's street address telephone and fax number.
6. They dialled the number in those details - 1300 932 050. Ms Marshall spoke to someone and then stated that Ms Nordlinger was authorised to deal with the matter on her behalf.
7. Ms Nordlinger then described the conversation she had with a person, who eventually told her his name was Razy, and later his supervisor:
   • He said he wouldn't speak to her for privacy reasons;
   • Despite Ms Marshall again authorising Ms Nordlinger to speak to him, he refused;
   • She asked him a number of times for his name. He finally told her it was Razy. He refused to tell her his last name on the grounds of the Privacy Act. He gave her his personnel number when asked;
   • He refused to answer any request for an invoice;
   • She then asked to speak with a lawyer and he told her words to the effect that 'the Privacy Act prevented this';
   • She told him that was not correct, this was not a privacy issue;
   • Eventually he informed her that there was no lawyer to speak to;
   • She asked to speak with his manager and was put through to a male person who said he was the supervisor and repeated words to the effect that he could not discuss the matter with her because of the Privacy Act.
8. Ms Nordlinger called the Law Institute of Victoria (LIV) to obtain the contact details for ABL. The person at the LIV told her ABL was operated by a sole practitioner named Victoria Nomikos.
9. Ms Nordlinger then attempted to call Ms Nomikos but was told she was not available and would ring Ms Nordlinger back.
10. Ms Nordlinger called again on 30 September 2011 and left a message which Ms Nomikos returned later that day. Ms Nordlinger asked Ms Nomikos about the contractual arrangement between ABL and D&B, and to explain whether her client was Telstra or D&B. Ms Nomikos told her Telstra was her client.
11. Ms Nordlinger said she could not understand at all the explanation of the relationship with D&B and this concerned her. In further discussion, Ms Nomikos told her that there would not be any proceedings issued but she would make some inquiries to establish whether Ms Marshall owed a debt to Telstra and if so provide an invoice.
12. Ms Nordlinger then made a complaint to the Commissioner.
13. ABL sent a further letter dated 14 October 2011 to Ms Marshall C/- Ms Nordlinger's address. That letter sets out the instructions Ms Nomikos had obtained: the amount claimed was a termination fee payable on cancellation of a wireless Bigpond account for Ms Marshall opened in November 2010 and cancelled in May 2011, and pro rata service charges as at the cancellation date. The letter enclosed a copy invoice dated 18 May 2011.
14. ABL's letter asks for a response and also states:

It goes without saying that we are gravely concerned regarding the matters relayed to us by Ms Nordlinger in relation to the conduct of Dun & Bradstreet and we are currently undertaking an investigation regarding that conduct.

1. Ms Nordlinger noted that the copy invoice was addressed to Ms Marshall at Ms Marshall's old address at Venus Bay, Victoria. Ms Marshall moved from that address to Tasmania in December 2010.
2. Ms Marshall then corresponded on her own behalf with Ms Nomikos about the claim by email in November 2011. Ms Marshall said that Telstra officers had suggested she move to ADSL to solve the problems they could not correct with her mobile broadband. She had not been informed that there would be a cancellation fee.
3. Ms Marshall has informed Ms Nordlinger that she has not received any further demand or any complaint regarding the debt.
4. There was no evidence before me explaining why the ABL letter was sent to Ms Nordlinger's address.

1. Ms Nomikos stated that:
   • At all times she was instructed by Telstra that the debt was owing
   • She relied upon those instructions in relation to the letter dated 26 September 2011 which was sent on ABL letterhead;
   • She cannot explain why there is no address for ABL on the letter.
   • The telephone number 1300 932 050 was not a telephone number of ABL. It was clearly identified as being that of D&B;
   • The substance of the letter directed the debtor to call D&B at the first instance. Any caller of that number could be directed to her. D&B were instructed to direct any call to her if a caller wanted to speak with a lawyer;
   • Ms Nordlinger was not a legal representative of Ms Marshall.

1. The Commissioner alleges that the Marshall letter was false and misleading in the following respects:
   • The letter purported to be from Ms Nomikos or her firm but was actually sent by D&B,
   • It purported to be from a lawyer but was sent by a non-lawyer;
   • The letter only provided contact details for C/- D&B and purported that you could speak to a lawyer from ABL via D&B;
   • D&B was the client of ABL and not Telstra.
2. For the reasons given in relation to other letters, I am satisfied that the letter was likely to mislead the public in the first two respects alleged. I was not satisfied that it represented that a person could speak to ABL via D&B and accept the respondent's submission in this regard. I was not satisfied to the required degree that Telstra was not a client of ABL but observe that Ms Nordlinger's confusion about the explanation she received is reasonable.
3. I am satisfied that charge 1 is proven as above.

The Marshall letter - failure to exercise direct control and supervision?

1. Ms Nomikos was right, in my view, to hold and express grave concerns about the matters reported by Ms Nordlinger. The response of the D&B employees appears absurd but represents a serious contradiction of Ms Nomikos' assertion that she maintained direct control and supervision over the communications D&B employees had with debtor's or their representatives.
2. The evidence in this matter provides a startling illustration of the cracks in Ms Nomikos' arrangements and establishes that the employees involved were not under any meaningful control or supervision on the part of Ms Nomikos. Of most concern is the obstruction of Ms Nordlinger's efforts to speak with a lawyer, given that the letter of demand had been sent on ABL's letterhead.
3. Charge 5 is clearly proven.

1. I find that Ms Nomikos is in breach of rules 29.1 and 29.2.3.

PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT?

1. The following observations are relevant to the letters of demand. In each case I have found that they were misleading in at least of the ways alleged by the Commissioner.
2. It was not in dispute that there is a significant difference in impact between a letter of demand from a debt collection agency, and a letter of demand from a solicitor. This is for good reason.
3. The fact that a solicitor is acting in the matter and has sent a letter of demand on behalf of a client would generally signify that the matter has become more serious for the person alleged to owe the debt; that it has been escalated. It would generally signify that the matter is one step closer to legal proceedings.
4. In reality a debt collection agency sent the letters, received all correspondence from the debtor to the address or addresses provided on the letters, and answered the telephone if a debtor or their representative called.
5. In this case, I am satisfied that Ms Nomikos has allowed D&B to send letters that have that greater impact, but are misleading as to the true nature of the involvement of a solicitor. In practical effect, she lent her firm's name, letterhead and electronic signature to two debt-collection agencies to send letters of demand purporting to come from a law firm, and then stepped out of the process that followed. They did the rest, but with the added authority of doing so in a solicitor's name.
6. The fact that she gave authority for the letters to be sent and the Edwards Complaint to be issued makes any misleading effect of them more serious in my view.
7. A breach of rule 29.1 may be unsatisfactory professional conduct or professional misconduct. In this case the breach is a serious one in my view. The letters were not only likely to mislead, they did in fact mislead at least one member of the public and a number of lawyers who thought they were communicating with ABL but were in fact communicating with a debt collection agency.
8. In my view, the arrangements by which the letters were authorised and sent, and subsequent communications handled, involved a misuse of the standing and authority of a legal practitioner's name.
9. I am satisfied that it is appropriate to find the more serious charge of professional misconduct proven.
10. I have reached a similar conclusion in relation to the breaches of rule 29.2.3, adopting the reasons set out in relation to the Collins Simms and Nu Door Complaints.

1. I find that Ms Nomikos in the period October 2009 to September 2011 engaged in professional misconduct in that in breach of r 29.2 she allowed the name of her firm ABL to be used by debt-collection agencies (D&B and CreditCollect) in a manner likely to mislead the public when sending the Marsden, Rob Carr, Edwards, Cole, Urabadi and Marshall letters and drawing and issuing the Edwards Complaint.

1. I find that Ms Nomikos in the period 1 October 2009 to 23 March 2010, was guilty of misconduct at common law in that the Marsden and Edwards letters were misleading and deceptive and falsely represented the lawful entitlement of the creditor client to the named debtor.

Charge 3: permitting or assisting unqualified legal practice: the Edwards Complaint

Charge 4: failing to exercise direct control and supervision: the Edwards Complaint

1. I find that Ms Nomikos in the period 1 October 2010 to 3 March 2011 engaged in professional misconduct in that in breach of rule 29.2.3(1) she failed to maintain direct control and supervision over the proceeding commenced with the Edwards Complaint.

Charge 5: failing to exercise direct control and supervision: the letters of demand

1. I find that Ms Nomikos in the period1 October 2009 to 29 September 2011 engaged in professional misconduct in that in breach of rule 29.2.3(i) she failed to maintain direct control and supervision over the correspondence or communications in relation to the Marsden, Rob Carr, Cole and Marshall letters.
2. Having made these finding, both proceedings will be listed for a hearing in relation to disposition.

[1] The expressions are used interchangeably by witnesses, in the Commissioner's application and in these reasons.

[2] Johnson Tiles Pty Ltd v Esso Aust Ltd [2000] FCA 1572; (2000) 104 FCR 564; Note that this and other cases cited relate to the phrase in consumer legislation 'misleading or deceptive'. Rule 29.1 refers to 'likely to mislead' The cases are equally applicable

[3] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191.

[4] Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 134

[5] Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; 42 ALR 177.

[6] Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180; 55 ALR 25.

[7] ACCC v Telstra Corp Ltd [2004] FCA 987; (2004) 208 ALR 459; St Luke's Health Insurance v MBF Ltd {1995] ATPR 41-428; Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 134

[8] The charge related to both the Collins Simms and the Nu Door proceedings and will be considered separately

[11] Registered with the Legal Services Board

[12] For example the evidence of Mr O'Brien, and Ms Nordlinger's evidence that she was told that she could not speak to a lawyer for 'privacy reasons'.

[13] The other being that D&B referred it to ABL for some other reason.

[15] In other evidence, Sandeep was described by Ms Nomikos as an account manager. He was not a law clerk. Correspondence in his name has the designation Collections Officer.

[18] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336: The Tribunal must feel an actual persuasion of the occurrence or existence of fact to be proved. Considerations such as the seriousness of the allegation and the gravity of the consequences flowing from a particular finding must affect the answer to the question - has the issue been proved to the reasonable satisfaction of the Tribunal. 'In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect inferences' per Dixon J at 362-3.

[19] AG v Quill Wills Ltd (1990) 3 WAR 500; Cornall v Nagle [1995] 2 VR 324; Victorian Lawyers RPA Ltd v Bailey [2000] VSC 162; Legal Practice Board v Frichot [2006] WASC 230 compare with LIV v Maric [2008] VSCA 46; (2008) 21 VR 1.

[20] (1991) 24 NSWLR 238

[24] As preserved by s 4.4.3(1)(a): Unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial failure to reach or maintain a reasonable standard of competence and diligence.

[25] Paragraph 40-41 of the Application for orders

[26] Application for orders, para 49 and the paragraphs incorporated by reference. The particulars

[28] The written submissions addressing the alleged breaches of 2.2.10(1) were general, dealing with the alleged conduct of D&B and CreditCollect employees in both proceedings. The submissions noted below are those that refer to the subject matter of the charge in the 2012 proceedings.

[29] See the cases referred to in relation to the Collins Simms and Nu Door proceedings at pages 32-33.

[30] AG v Quill Wills Ltd (1990) 3 WAR 500; Cornall v Nagle [1995] 2 VR 324; Victorian Lawyers RPA Ltd v Bailey [2000] VSC 162; Legal Practice Board v Frichot [2006] WASC 230 compare with LIV v Maric [2008] VSCA 46; (2008) 21 VR 1.

[31] Law Society of New South Wales v Foreman, discussed above related to a solicitor's failure to supervise an employed law cleark. Law Society of the United Kingdom v Waterlow Brothers &Layton (1883) 8 App Cas 407, concerned law stationers carrying out certain probate-related tasks for London or country solicitors, but they were held not to have acted as solicitors or proctors.

[32] Subsequent evidence indicated that Luke was not the D&B law clerk. Ms Nomikos said that Kenja, referred to in the following paragraph, was a law clerk

[33] demanding payment in full by 1/7/10

[34] headed 'Urgent attention required and demanding payment in full by 7/7/10 otherwise 'we will have no choice other than to refer your debt to our solicitors for immediate review

[35] Headed 'final notice' and stating 'If we do not receive payment within 48 hours from the date of this letter and legal action is taken to recover this debt, legal fees, charges and interest may be added to your account and recovery of these costs will be enforced. Your next communication may be a summons issued in a court of law