In respect of the seven findings of professional misconduct and one finding of misconduct at common law against the respondent, Victoria Nomikos:

1. The Tribunal accepts the undertaking given by the respondent in the following terms:

I undertake not to permit a debt-collection or mercantile agency to use my business name or stationery nor that of my firm.

I will not authorise the use of my solicitor's code or that of my firm by a debt-collection agency for the purposes of the Magistrates' Court EDI system or at all.

1. The Tribunal orders the respondent to pay a fine of $25,000.00 to the Legal Services Board.

1. The Tribunal orders the respondent to pay part of the applicant's costs of this proceeding, the amount to be paid fixed by the Tribunal at $75,000.00.

1. In these two proceedings, heard together, the Legal Services Commissioner sought determination by the Tribunal of 10 charges of professional misconduct and one charge of misconduct at common law.
2. On 26 September 2013, I found Ms Nomikos guilty of seven charges of professional misconduct and one charge of misconduct at common law.
3. The reasons for decision are published in Legal Services Commissioner v Nomikos (Legal Practice) [2013] VCAT 1682.
4. On 25 November 2013, I heard submissions from Counsel for the Commissioner and Counsel for Ms Nomikos in relation to the question of penalty.
5. After the publication of the Court of Appeal decision in Stirling v Legal Services Commissioner,[1] I invited further submissions from the parties including on the issue of whether a global penalty was appropriate in this case. The parties made further submissions at a hearing on 10 February 2014.
6. Both Counsel agreed, and I am of the view, that a global penalty is appropriate in this case. The charges arise from a course of conduct over a period of time; and inextricably interwoven facts, as opposed to a set of separate events.[2]
7. Following the hearing on 10 February 2014, the parties referred to me the decision of the High Court in Barbaro v R; Zirilli v R .[3] I have considered the effect of the High Court's decision on these proceedings below.

1. Between 2007 and 2011, the Commissioner received and investigated a series of complaints from legal practitioners about Court documents (Magistrates Court Complaints) and letters of demand in the name of Ms Nomikos' then firm, A'Beckett Lawyers (ABL).
2. In essence, the complaints were that the documents were misleading in that they were generated and sent by debt-collection agencies and not ABL, the contact details for ABL were instead those of debt-collection agencies, and that the communications which followed were misleading and/or confusing. There were also complaints about claims for costs in the Court documents and some of the letters.

1. In addition, some of the complainants raised concerns that Ms Nomikos did not appear to have exercised direct control and supervision over communications and proceedings in her name.
2. The evidence in the case and the findings I made largely substantiated those concerns.
3. Under her arrangements with them, Ms Nomikos authorised two debt collection agencies, Dun & Bradstreet (D&B) and CreditCollect to:
   • generate and send letters of demand on ABL letterhead and with the electronic signature of ABL, using precedents provided by ABL;
   • generate Magistrates' Court Complaints electronically via the Magistrates' Court EDI process using ABL's solicitors code for the EDI system and precedents provided by ABL;
   • serve the Complaints; and
   • enter judgment and prepare a warrant or summons for oral examination if the proceedings were undefended..
4. Ms Nomikos was found guilty of:
   • three charges of professional misconduct in that she engaged in conduct in breach of Rule 29.1 of the Rules by allowing the name of her firm A'Beckett Lawyers to be used by a debt collection agency in a manner that was likely to mislead the public;
   • three charges of professional misconduct in that she engaged in conduct in contravention of Rule 29.2.3(i) of the Rules by failing to maintain direct control and supervision over the three Magistrates' Court proceedings;
   • one charge of professional misconduct in that she engaged in conduct in contravention of Rule 29.2.3(ii) of the Rules by failing to maintain direct control and supervision over correspondence or communications with her clients and the client's debtors to which she purported to be a party; and
   • one charge of misconduct at common law in that she permitted her firm's name to be used by a debt collection agency to send a final notice and a notice before summons which were misleading or deceptive and falsely represented the lawful entitlement of her clients to the debtor named in each letter.
5. The reasons for decision in Legal Services Commissioner v Nomikos [2013] VCAT 1682 annex copies of the documents found to be misleading. Two of those, the Marsden and Edwards letters, were also found to falsely represent the lawful entitlement of the creditor client to the named debtor (statements relating to costs in legal proceedings).
6. The reasons for decision set out the particular aspects in which the documents were misleading. Their misleading nature was not uniform. Each had to be considered separately.
7. Three other charges brought by the Commissioner were not proven and no findings of misconduct were made in respect of them.

1. If the Tribunal finds a practitioner guilty of unsatisfactory professional conduct or professional misconduct, section 4.4.16 of the Act provides that the Tribunal may make any orders it thinks fit including the orders specified in sections 4.4.17, 4.4.18 and 4.4.19.
2. The available determinations include:
   • reprimand;
   • conditions on practice;
   • further legal education;
   • a fine;
   • suspension of a current practising certificate;
   • an order that a local practising certificate not be granted before the end of a specified period;
   • and in the most serious cases, a recommendation to the Supreme Court that the name of the practitioner be removed from the local roll of practitioners.
3. The objective of any determination is primarily the protection of the public and the maintenance of professional standards in the eyes of the public (protection of the reputation of the profession). The focus of the Tribunal will be on protection, not punishment.[4]
4. As observed by Warren CJ in Legal Services Board v McGrath,[5] the protective power extends:

...beyond protection of the public to include the legal profession as a group, the courts, the justice system and community confidence in the system.

1. Necessarily, any sanctions will have a punitive effect. As observed by Maxwell P in Quinn v Law Institute of Victoria[6]

The objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect.

1. Where there is a choice of sanctions, however, the Tribunal will choose that sanction which maximises the protection of the public.[7]
2. With that protective focus in mind, the Tribunal considers a range of factors in determining penalty including:
   • whether the practitioner pleaded guilty or other evidence of contrition or remorse;
   • whether there is a need for specific deterrence (deterring the particular practitioner from re-offending) or general deterrence (deterring other practitioners from engaging in similar conduct);
   • what the protection of the public may require in the particular case;
   • whether there have been other disciplinary findings before or since the conduct in question;
   • evidence of character;
   • evidence of rehabilitation;
   • any delay from the time the investigation started to the end of the Tribunal hearing;
   • other mitigating factors such as medical or psychological evidence, family circumstances or financial issues.
3. Some of the above factors will overlap. Specific deterrence, for example, requires consideration of the likelihood of the practitioner re-offending, whether because of:
   • a lack of insight into what occurred;
   • a lack of remorse about what occurred;
   • a history of offending conduct as opposed to a one-off explicable departure from otherwise high standards of conduct; or
   • other matters indicating either that a particular sanction is required to deter the practitioner from re-offending or, conversely, that rehabilitation has taken place.
4. General deterrence requires consideration of whether there is a need to signal to other members of the profession that adverse consequences will follow such conduct, and thereby deter them from the same conduct, in the interests of maintaining professional standards and public confidence in the profession.[8]
5. Although every case is different, penalties imposed in other cases involving similar or analogous conduct will be a useful guide to proportionality, and to ensuring that the penalty imposed in the particular case is not outside the range of penalties imposed in the relevant jurisdiction. In addition, as the Court of Appeal observed in Stirling,[9] consistency in penalties between jurisdictions is desirable in a time of national practices.
6. In Stirling,[10] the Court of Appeal considered the common elements in criminal sentencing and the determination of penalty in disciplinary proceedings. Those common elements include:
   • the importance of denunciation, specific deterrence and community protection;
   • that the Tribunal in formulating an appropriate penalty takes into account all relevant matters, similar to the synthesis undertaking by a sentencing judge; and
   • consideration of mitigating factors such as mental or psychological impairment issues
7. As observed by the Court of Appeal,[11] the analogy is not perfect. Disciplinary proceedings are not criminal proceedings but are sui generis (of their own kind).
8. Other differences include those noted by Counsel in their submissions in this proceeding. Unlike in sentencing, there is no designated minimum or maximum penalty for professional misconduct or unsatisfactory professional conduct; instead the Tribunal has available to it a range of determinations it may impose.
9. The Court of Appeal in Stirling, referring to the common law rule regarding pronouncement of sentence,[12] also considered whether a Tribunal in disciplinary proceedings is likewise required to stipulate a penalty for each count or charged conduct. The Court observed that the rule is an important one and should be applied, where applicable, in disciplinary proceedings, but noted:

However, this rule may not apply in all disciplinary proceedings. There are cases[13] where the charged conduct is constituted by a course of behaviour as opposed to a set of separate events. In these circumstances where the facts of the case are so inextricably interwoven as to make it difficult to meet a clear standard of prescription, a global penalty may be applied.

1. As noted above, the charges in this case are within the exception referred to above and a global penalty is appropriate.
2. At the hearing on 25 November 2013, Counsel for the Commissioner and Counsel for Ms Nomikos made submissions on what penalty ought to be imposed. After the further hearing on 10 February 2014, the High Court gave its decision in Barbaro v R; Zirilli v R, [14] which was referred to me without submissions.
3. I note the following.
4. Barbaro concerned the question of whether it is appropriate for a prosecutor in criminal proceedings to make submissions on what ranges the sentences to be imposed should fall within.
5. The Court noted that a practice had developed in Victoria for a sentencing judge to ask counsel for the prosecution to make submissions about the bounds of the available range of sentences, and stated that the practice is 'wrong in principle.[15] The reasons for it being so include that the practice made lead to erroneous views about the importance of such a statement by the prosecution in the sentencing process 'with consequential blurring of what should be sharp distinction between the role of the judge and the role of the prosecution in that process.' [16]
6. Whether or not Barbaro is binding on disciplinary tribunals, there is no doubt that determining the penalty to be imposed in disciplinary proceedings is entirely a matter for the Tribunal, assisted, as in this case, by the parties' submissions on relevant principles, the facts to be found, comparable cases and the relative importance of matters such as specific and general deterrence.
7. The relevant factors in this case are considered below.

1. Counsel for Ms Nomikos submitted that Ms Nomikos' conduct was at the lower end of the offending conduct that comes before the Tribunal: it involved no element of dishonesty or fraud.
2. Counsel also submitted that if the Tribunal took avoidance of tax obligations as a measure of the most serious and disgraceful conduct that comes before it, then it was relevant and instructive that in cases such as Legal Services Commissioner v Moore,[17] and Legal Services Commissioner v Turner,[18] the practitioner in each case was reprimanded and fined, not suspended.
3. The most serious conduct that comes before the Tribunal is that which is found to warrant recommending to the Supreme Court that it strike the person off the roll of practitioners kept by Court, on the basis that the person is presently and indefinitely not a fit and proper person to remain on the roll.[19] Avoidance of tax obligations, while serious, does not usually result in such a finding. Much depends on the particular facts and circumstances.
4. In my view, the conduct here is not at the highest end of the conduct coming before the Tribunal, but it is serious misconduct capable of harming public confidence in the profession, and at the high end of dereliction of professional care and responsibility.
5. My findings included the following matters relevant to the seriousness of the conduct.
6. Ms Nomikos allowed debt-collection agencies to use her letterhead, electronic signature and precedents to generate and send misleading letters of demand.
7. More seriously, she allowed debt-collection agencies to use her solicitor's code to generate and serve misleading court documents through the Magistrates' Court EDI system of electronic document lodgement.
8. The evidence was that the Magistrates Court Rules require a solicitor on the record to put the solicitor's business address on Magistrates' Court Complaints. The addresses in question were the debt-collection agencies' addresses.
9. Unless a Magistrates' Court proceeding was defended or she was otherwise asked to involve herself, Ms Nomikos did not open a file, take any action, or charge costs.
10. By allowing the agencies' telephone numbers and addresses to be on the relevant documents, Ms Nomikos gave up direct control of the communications with debtors or their representatives which followed; and lost the effective ability to apply the professional skill and care required of legal practitioners to those matters.
11. In finding that the documents were likely to mislead the public, it was relevant that a number of legal practitioners had actually been misled.
12. In some cases callers, believing they were calling ABL and asking to be put through to the person handling the matter, were put through to another employee of the debt-collection agency.
13. Others were told by a debt-collection agency employee that ABL would not yet know about the matter.
14. In one case, a retired barrister, assisting a friend and with authority to do so, was told that she could not be put through to a lawyer for 'privacy' reasons.
15. These actions by the employees of the debt-collections were contrary to the instructions Ms Nomikos had given to the debt-collection agencies, but her instructions did not prevent the harm. They were not her employees, and therefore not under her direct control.
16. In this context it is relevant that a solicitor on the record who chooses to leave the actual conduct of the matter to the clerk who is in their employ will be responsible for what takes place in the 'conduct of the cause', as will an innocent partner.[20]
17. It was not in dispute that a letter of demand from a legal practitioner has a greater impact than a letter from a debt-collection agency. By allowing the debt-collection agencies to send letters of demand in the name of a solicitor, and then receive and respond to correspondence or communications, she allowed them to 'borrow' the standing and authority of legal practitioners.
18. The system in question applied only to debts within the jurisdiction of the Magistrates' Court. Counsel for Ms Nomikos submitted that there was no evidence that the conduct of which she was found guilty infected the rest of her practice.
19. This is not a mitigating factor in my view. No distinction of the kind made by Ms Nomikos in this case ought to have been made.
20. The duration of the conduct is also relevant. This was not a one-off error of judgment.
21. The findings relate to conduct over a five-year period, during which Ms Nomikos persisted in the arrangements with the debt-collection agencies, notwithstanding that the Commissioner continued to receive and investigate new complaints. Potential breaches of the relevant rules were in issue from an early stage.
22. The findings of misconduct arose from commercial arrangements in place with debt-collection agencies. Debt-collection work under those arrangements formed a large part of ABL's practice over the relevant time.
23. What is relevant about that circumstance, in my view, is that the findings of misconduct did not arise from a single mistake or lapse in attention to a particular file or practice issue. Nor were they the result of identified external pressures or factors impacting on the practitioner's ability to take the required professional care.
24. I have considered in a separate part of these reasons the submissions made by Counsel for Ms Nomikos that delay and lack of guidance from the Commissioner over the five year period are powerful mitigating factors.

1. Counsel for Ms Nomikos submitted that Ms Nomikos has shown significant insight and remorse, demonstrated by an offer made prior to the hearing to plead guilty to two limited, representative charges of professional misconduct and one limited, representative charge of unsatisfactory professional conduct.
2. The Commissioner did not accept the offer and pressed all 11 charges, proving eight charges and not proving three, including the most serious two charges - of assisting an unqualified person to engage in legal practice.
3. A plea of guilty will always be a relevant consideration to penalty, indicating remorse and acknowledgment of wrongdoing. It will save the need for witnesses to attend and reduce the length and cost of the hearing.
4. An offer to plead guilty to some but not all charges may be made for one of a number of reasons. It is not as strong a factor indicating insight and remorse as a plea of guilty will be, but may be relevant, depending on the circumstances.
5. In this case, the offer has some limited relevance, in my view. Ms Nomikos did not offer to plead guilty to all the charges that were proven, nor did she offer to plead guilty to all aspects of the charges. She vigorously defended all the charges brought against her. She did not otherwise indicate remorse in her evidence at the hearing.
6. I take the offer to plead guilty into account but retain some concerns about Ms Nomikos' insight into the conduct the subject of the findings.
7. In the years when the Commissioner was investigating the numerous complaints about the documents in issue, and throughout the hearing, Ms Nomikos at all times maintained that she had done nothing wrong.
8. I remain concerned that she did not discontinue the arrangements at an earlier stage. I take into account that Ms Nomikos substantially cooperated with the Commissioner's investigations and sought guidance at various times, but she ought to have seen, and did not appear to see the hazards in the arrangements.
9. The submission was made on her behalf that she was entitled to rely on the fact that the Commissioner did not charge her until 2011.
10. Delay in laying charges is relevant as a mitigating factor and is discussed below, but I am not satisfied that any delay ought to have provided comfort to Ms Nomikos.
11. In particular it ought not to be taken as some kind of green light to continue in the conduct; especially where, as here, the same issues are being raised in otherwise unrelated complaints being made by a number of legal practitioners over an extended period. In each case, those legal practitioners had no difficulty in identifying and articulating the apparent breach of professional obligations.
12. I accept that Ms Nomikos sought guidance from the Commissioner about proposed changes to her letterhead, and take that into account. But a practitioner is, ultimately, responsible for his or her own professional conduct.
13. I found Ms Nomikos to be a careful and candid witness. I accepted that she believed the arrangements did not breach her professional conduct obligations. The fact that she failed to recognise that she was in breach of her obligations indicates a concerning lack of insight, in my view.
14. Counsel for Ms Nomikos submitted that in addition to her offer to plead guilty to limited representative charges, her decision to cease her association with the debt-collection agencies indicated remorse.
15. In my view, Ms Nomikos' decision to bring her association with Dun and Bradstreet and CreditCollect to an end, and cease receiving instructions from debt-collection agencies is a relevant indication of self-rehabilitation. It is not, in my view, a compelling indication of remorse in circumstances where Ms Nomikos said in evidence that she got out of dealings with the agencies because she was not prepared to carry on with the relationships not knowing whether or not they were in breach of her professional relationships.[21]

1. Ms Nomikos has had no other disciplinary findings made against her in 23 years of practice.
2. There was a dispute about the status of a 2006 letter from the Commissioner to Ms Nomikos. Counsel for the Commissioner submitted that it constituted an 'informal reprimand'. The submission unduly elevates the status of the document, in my view.
3. The letter followed investigation of a complaint made by Ms Janine Dethlefs in 2005, who alleged that a letter on ABL letterhead was misleading in that the contact details on the letterhead were details relating to D&B.
4. The Commissioner advised that:
   • she was satisfied that there was a reasonable likelihood that the Tribunal would find Ms Nomikos guilty of unsatisfactory professional conduct; but
   • determined to take no further action in light of Ms Nomikos' general competence and diligence, and the fact that there had been no substantiated complaint (other than this complaint) about her conduct in the last five years.
5. The Commissioner's 2006 letter cannot be described as a disciplinary finding. It has some relevance, however, in my view, as an 'early warning' of the hazards of the arrangements.
6. The letter expressly referred to Rule 29.1. It put Ms Nomikos on notice of the Commissioner's opinion that the Tribunal could find the conduct to be unsatisfactory conduct. As noted above, the Commissioner's opinion is not a 'disciplinary finding' but it ought to have weight in a practitioner's mind, particularly where it is followed by other complaints of a similar nature which the Commissioner treats as disciplinary complaints.
7. The letter referred to assurances Ms Nomikos gave about who would answer the new dedicated telephone number and what would happen if callers asked to speak with a solicitor.
8. The Commissioner's reference to those assurances ought to have signalled to Ms Nomikos that those matters were important and required some vigilance on her part.
9. The findings made in these proceedings reflected the fact that, in respect of how the telephone numbers would be answered and what happened when callers asked to speak to a solicitor, the reality departed substantially from what Ms Nomikos intended should happen.
10. It would not be reasonable in my view, to treat the letter as giving some sort of approval to the arrangements Ms Nomikos had in place, which was a submission made in the course of the hearing by Counsel for Ms Nomikos. At most, it represented a conditional 'amber light' based on assurances given, in the context of an opinion that there was a reasonable likelihood that the Tribunal would find Ms Nomikos guilty of unsatisfactory professional conduct.

1. Notwithstanding my concerns about Ms Nomikos' insight, for the following reasons, there is little risk, in my view, of Ms Nomikos engaging in similar conduct in the future:
   • She ceased her association with D&B and CreditCollect in 2011;
   • The last complaint about these matters was received in October 2011;
   • She ceased receiving new debt-collection work from mercantile agents in 2012;
   • In late 2012 she sold her practice to the firm, M&K Lawyers, of which she is now a principal;
   • She is no longer in sole practice and has the support of, and is accountable to, her partners in a national firm;
   • Her current practice is now comprised of large-scale commercial litigation and insolvency work. The offending conduct related to the way in which she allowed debts within the jurisdiction of the Magistrates' Court to be pursued. No criticism has been made of the way in which she conducted higher value work. Essentially her mistake was to fail to apply the same professional care and control to matters regardless of value.
2. I consider the steps taken by Ms Nomikos in relation to her practice to indicate a desire to rehabilitate herself.
3. In addition, Ms Nomikos is willing to provide an undertaking in the following terms:

I undertake not to permit a debt-collection or mercantile agency to use my business name or stationery nor that of my firm.

I will not authorise the use of my solicitor's code or that of my firm by a debt-collection agency for the purposes of the Magistrates' Court EDI system or at all.

1. The proffered undertaking extends beyond her professional conduct obligations, and extends to the name, stationery and solicitor's code of her current firm.
2. In my view, the undertaking, in combination with the cessation of association with debt-collection agencies in her practice and her membership of a large firm to which she is accountable, provides considerable protection to the public against any repetition of the offending conduct by Ms Nomikos. In the circumstances, the importance of specific deterrence is low.

1. General deterrence is an important factor in this case, in my view, and must also be considered.
2. Counsel for Ms Nomikos submitted that the conduct in this case was conduct particular to Ms Nomikos and her relationship with the debt collection agencies, and that general deterrence ought not to be a factor in determining penalty in this case.
3. In Legal Services Commissioner v Sampson, Senior Member Smithers of this Tribunal, reviewed the developing concerns of regulators in relation to misleading letters of demand.[22]
4. In his decision in relation to penalty Senior Member Smithers noted:[23]

Regulators are rightly very concerned to ensure that those practising in bulk debt collection, as well as practitioners engaging in one-off debt collection for clients, are given a strong message that consumers must not be misled or intimidated by assertions made in letters of demand.

1. The Senior Member noted that Ms Sampson's case did not concern:

matters such as the 'lending' of a solicitor's letterhead to debt-collecting agencies........which are aspects of the conduct of some solicitors which are of concern to regulators.[24]

1. I note that the Sampson case involved letters of demand that were in breach of a different rule, 28.2, and were sent by Ms Sampson's firm and not by a debt-collection agency.
2. In relation to general deterrence the Senior Member expressed the view that:

The fact that most debtors receiving letters of demand would not seek legal advice, given the small amounts involved, does enhance the importance of general deterrence.

1. In Ms Sampson's case, the Senior Member found that there were significant mitigating factors in that case, which would mean that it would be giving disproportionate weight to general deterrence if that were a major factor in favour of suspending her practising certificate, a course urged by the Commissioner.
2. In this case, the majority of the complaints to the Commissioner were made by legal practitioners who had been consulted by the alleged debtors. The amounts claimed were larger than those in the Sampson case, which may be why legal advice was sought. In each case, at some point, the legal practitioners had been able to identify the misleading nature of the document. It is less likely in my view that a lay person would be able to do so, and more likely that they would in fact be misled.
3. As noted above the practice of 'lending' letterhead to debt-collection agencies has already been recognised as an area of concern for regulators.
4. Ms Nomikos herself said in the course of the hearing that if what she was doing were wrong, a large number of solicitors in Australia would be in breach of their professional conduct obligations.
5. It is important, in my view, that legal practitioners engaged in debt-collection work should be deterred from conduct such as was evident in this case, particularly those in close association with debt-collection agencies.
6. The risk of damage to the reputation of the legal profession is high. The public is entitled to be protected from misleading demands made in a solicitor's name by a debt-collection agency. The protection of the Courts and the administration of justice from arrangements between lawyers and debt-collection agencies which involve misleading Court documents is essential.
7. Protection of the public by the maintenance of professional standards is relevant here, in my view. As Ross J observed in Legal Services Commissioner v Brott:[25]

The concept of general deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence. Related to general deterrence is the proposition that in deciding an appropriate penalty the Tribunal may have regard to the effect which its order will have on the understanding, in the profession and amongst the public, of the standard of behaviour required of solicitors.

1. General deterrence is highly important here. Clear denunciation of Ms Nomikos' conduct and proportionately adverse consequences are required, in my view, in order to deter other practitioners from similar conduct, and thereby protect the public from it.

1. The character witness statements provided on behalf of Ms Nomikos indicate that she is regarded by those who made the statements as a person of good standing and general reputation in the legal profession.
2. The majority of the character witnesses expressed surprise at learning of the charges, and regarded the charges as out of character for the person they knew.
3. All of the witnesses made their statements prior to the findings of misconduct, which reduces their weight.
4. The National Managing Director of M&K, Ms Nomikos' current firm, made a statement which has more weight, in my view.
5. He stated that Ms Nomikos discussed the charges with him prior to the agreement to merge their firms.
6. He stated that such was their commitment to and belief in Ms Nomikos that they elected to proceed with the merger notwithstanding that the proceedings were still on foot, and despite the knowledge that the proceedings have the potential to impact adversely upon the name and reputation of the firm.
7. Importantly, he stated that he and his colleagues have confidence in Ms Nomikos and believe she has the character and capacity to overcome the circumstances leading to these proceedings
8. I regard the statement to have some weight because it recognises the potential seriousness to Ms Nomikos and to the reputation of the firm of the proceedings, describes an informed decision to proceed with the merger based on a belief in her qualities and competence, and expresses a belief in her capacity to overcome the circumstances which led to the proceedings.

1. The following matters arise from the submissions of Counsel for Ms Nomikos.
2. Ms Nomikos is the daughter of Greek immigrant parents. She was the first member of her family to attend university.
3. She is the sole income earner in her family and supports her husband, two teenage children, and her elderly parents-in-law who are in poor health.
4. In 2010 she was diagnosed with a meningioma in her brain. The growth of the tumour has not been rapid but has continued to increase in size over the last 3 years and will inevitably lead to surgery.
5. She has been advised to avoid stress. Any penalty which involves suspension would, it was submitted, have a significant negative impact on her health.
6. I accept that stress inevitably has an impact on a person's health, and that a penalty which involves suspension has the potential to be more stressful that some other penalties.
7. I received no evidence from a medical practitioner, however, to support the particular submission- that Ms Nomikos has been advised to avoid stress, and that stress will have a negative impact on her medical condition.
8. Ms Nomikos' witness statement attached a letter from Dr Damien Tange dated 7 February 2013 which in summary stated that:
   • A CT scan had shown an incidental Olfactory Groove Meningioma or falx meningioma. Ms Nomikos had had no symptoms from this;
   • An MRI scan confirmed that the lesion in her brain was consistent with a meningioma;
   • On review in 2011 the lesion was stable;
   • A review in 2012 showed some enlargement of the tumour. Dr Tange recommended that it be resected while it was still small in order to hopefully achieve a cure. Ms Nomikos advised that surgery was not convenient at that time as she was selling her practice. As at the date of the letter she had not scheduled a review appointment.
9. Counsel submitted that any period of suspension would also have significant implications for the other practitioners of her firm and the clients for whose matters she is responsible. She is the most senior litigator in the Melbourne office of the firm, and conducts and supervises the vast majority of the work undertaken by the lawyers in her commercial litigation team.
10. I take into account Ms Nomikos' personal financial responsibilities, and her medical condition.
11. The implications for her firm have less weight, in my view. Unlike a solicitor in sole practice, an absence from practice of one lawyer in a firm for a period of time can be accommodated, and commonly is for reasons such as long service leave or sabbaticals.
12. If suspension is the appropriate penalty for other reasons, the impact on her current firm would not be a significant mitigating factor in my view.

1. There have been no other decisions arising from a breach of Rule 29. The closest comparable decision is the Tribunal's decision in Sampson, referred to above.[26]
2. Ms Sampson was found guilty of two counts of professional misconduct, conduct in breach of rule 28.2 of the Rules, namely that a practitioner must not make any statement that is calculated to mislead or intimidate any other person, and which grossly exceeds the legitimate assertion of the rights or entitlements of the practitioner's client.
3. Sampson has relevance in my view, but there are a number of differences between the two cases.
4. Sampson concerned a different rule, rule 28.2, which appears to me to involve more serious conduct, at least where it concerns letters of demand. Rule 28.2 is concerned with a statement 'calculated to' mislead or intimidate a person and which 'grossly exceeds the legitimate assertion of the rights or entitlements of the practitioner's client.'
5. On the other hand, in Sampson, the conduct did not involve misleading Court documents, there were fewer charges, and the charges related to a shorter period of time.
6. General deterrence was regarded as highly important, but the Tribunal took into account the publicity that had already occurred as a result of the prior Federal Court case,[27] which is not a factor here.
7. The Tribunal also took into account the fact that there had been inconsistency taken in the approach by regulators to the issue of claims for costs in letters of demand: a clear position against particular kinds of demands for costs had taken some time to emerge.
8. In Sampson, the Tribunal considered that but for a number of mitigating factors suspension might well have been warranted in the interests of general deterrence.
9. Taking into account the above matters, my view is that a penalty in this case which included suspension would not be disproportionate to the outcome in Sampson. The question remains whether it is appropriate in this case.

1. Counsel for Ms Nomikos submitted that the delay by the Commissioner in the investigation of the complaints is a powerful mitigating factor to be considered by the Tribunal in determining the penalty in this case.
2. Counsel also submitted that lack of guidance to Ms Nomikos by the Commissioner was a mitigating factor. The evidence of Ms Nomikos and the Commissioner's two internal witnesses was that Ms Nomikos sought the assistance and guidance of the Commissioner as to compliance.
3. I have reviewed the correspondence between the Commissioner and Ms Nomikos over the period 2007 to 2012 in the context of this submission, and the submission that delay is a mitigating factor here.
4. The following chronology is relevant:
   • February 2007: Breisch complaint received and investigation commenced;
   • July 2008: O'Brien complaint received and investigation commenced;
   • July 2009: (Breisch) LSC letter following investigation and before decision sent seeking response;
   • August 2009: Ms Nomikos advised she wanted to come in and discuss some changes she was implementing;
   • August 2009: Meeting where Ms Nomikos stated she was keen to make changes and wants to ensure she is complying. She was told to put it in writing;
   • August 2009: Ms Nomikos enclosed a copy of proposed new letterhead with ABL's registered address [but including the PO Box], and directing all correspondence to D&B at their address. She asked for feedback;
   • October 2009: (Breisch); LSC letter acknowledging receipt of Ms Nomikos 21 August 2009 letter
   • May 2010: Marsden complaint received;
   • October 2010: (Breisch) letter following up and apologising for the delay;
   • November 2010: Ms Nomikos wrote with proposed changes to letters of demand in relation to claims for costs;
   • December 2010: (O'Brien) LSC letter following investigation and before decision seeking response
   • January 2011: Zemek complaint received;
   • April 2011: (Edwards and Cole) request for own motion investigation received;
   • April 2011: LSC letter with table of open files, issues and responses sent:
   • June 2011: (Marsden) LSC letter following investigation and before decision seeking response (further letter January 2012);
   • June 2011: (Zemek) LSC letter following investigation and before decision seeking response (further letter January 2012);
   • June 2011: Meeting LSC officer told Ms Nomikos that 'we are here to assist and raise professional standards'. Ms Nomikos said she had implemented changes and asked for feedback with no response. LSC officer noted that the Cole letter not in accordance with those changes. Ms Nomikos said the problem was the business units at D&B. LSC officer said it is not the business units 'facing the music here';
   • July 2011: Urabadi complaint received;
   • October 2011: Marshall complaint received;
   • November 2011: (Breisch and O'Brien) LSC notice of decision to apply to Tribunal:
   • December 2011: (Breisch and O'Brien) LSC application to Tribunal for orders - J 172/2011
   • February 2012: (Edwards and Cole) LSC letter following investigation and before decision seeking response;
   • March 2012: (Marshall) LSC letter following investigation and before decision seeking response;
   • June 2012: (Marsden, Zemek, Edwards, Cole, Urabadi, Marshall) LSC notice of decision to apply to the Tribunal;
   • August 2012: (Marsden, Zemek, Edwards, Cole, Urabadi, Marshall)LSC application to Tribunal for orders - J 127/2012 .
5. In my view, there is a relevant and significant period of delay disclosed in relation to both the Breisch and the O'Brien matters in application being made to the Tribunal, even taking into account the multiple complaints the Commissioner received in the period from 2010 to 2011.
6. There has been a further delay in the Breisch and O'Brien matters coming to hearing, explained by the understandable decision by both parties that the 2011 and 2012 proceedings be heard together.
7. There is no significant period of delay disclosed in relation to the other matters.
8. There is clear evidence that Ms Nomikos sought guidance, in 2009 and 2010. There is no indication that she received it.
9. Delay constitutes a powerful mitigating factor. Its relevance lies in the effect that the lapse of time has on the particular respondent. It focuses attention on issues of rehabilitation and fairness. [28]
10. In Stirling, the Court of Appeal expressed the view that for a regulator to protect the public interest, it is 'unacceptable' that it took almost four years from the time the investigation started to the end of the Tribunal hearing; and observed 'matters of this sort should be brought to justice quickly.'
11. Delay is a significant mitigating factor in this case, in my view. As Stirling makes clear, it is incumbent on the regulator to progress the investigation expeditiously. As in Stirling,[29] the Commissioner here had sufficient facts for prosecution of Ms Nomikos long before the time at which he made his application to the Tribunal in the Breisch and O'Brien matters.
12. The delay in prosecuting the Breisch and O'Brien matters, the investigations of which commenced in February 2007 and July 2008 respectively, is of particular concern where, as here, Ms Nomikos cooperated with the investigations from the outset and sought guidance from August 2009.
13. The delay has also afforded an opportunity to Ms Nomikos to demonstrate self-rehabilitation which I take into account.

1. I have considered the relevant factors in this case.
2. This is a case where suspension has to be considered in the interests of general deterrence and denunciation.
3. It is not a case where suspension is warranted in the interests of specific deterrence. Despite Ms Nomikos' lack of insight into the nature of her conduct, the risk of repetition is low. The changes she has made and the undertaking she gives sufficiently protect the public from her.
4. I have considered the submission made by Counsel for Ms Nomikos that a reprimand is sufficient in all the circumstances.
5. As observed by Member Butcher of this Tribunal in Legal Services Commissioner v Sapounsis: [30]

It should be noted that a reprimand is not an insignificant determination in itself. In Peeke v The Medical Board of Victoria, unreported Supreme Court of Victoria 19 January 1994, Marks J expressed the view that a reprimand is not a trivial penalty. His Honour said that although a reprimand may be inappropriate or inadequate in many circumstances, to a professional person a reprimand had the potential for serious adverse consequences. In Medical Practice Board v Swieca [2009] VCAT 419 the Tribunal referred to Peeke and said that a reprimand should not be considered as a slap over the wrist [for the practitioners].

1. I consider that a reprimand is not adequate to serve the interests of general deterrence. This is a case where the conduct is serious and has the potential to damage the reputation of the legal profession and reduce public confidence in the legal system if other practitioners are not strongly and clearly deterred from engaging in it.
2. I consider that a period of suspension might well have been appropriate in the interests of general deterrence, and may well be appropriate in other cases, but the following factors persuade me that suspension in this case would give disproportionate weight to general deterrence:
   • Ms Nomikos' general good character;
   • her cooperation with the Commissioner's investigations over the period of the investigation;
   • her honesty and candour in giving evidence;
   • her self-rehabilitation;
   • the fact that there are no other disciplinary findings against her;
   • the undertaking she has given; and
   • the effect and significance of the delay in this case.
3. In addition to a reprimand, I impose a substantial fine in the interests of general deterrence and denunciation. Ms Nomikos will also be required to pay $75,000 to the Commissioner by way of costs, representing approximately 75% of the Commissioner's total costs,[31] and has incurred over $150,000.00 of her own costs.
4. The combination of the above will, in my view, send a sufficiently strong message that such conduct will have adverse consequences.

[1] [2013] VSCA 374, date of judgment 17 December 2013.

[2] {2013] VSCA 374, at paragraph [75]

[3] [2014] HCA 2, 12 February 2014.

[4] See the observations in Hannebery v Legal Ombudsman [1998] VSCA 142 at [22] (Tadgell JA with Phillips and Chernov JJA agreeing).

[5] [2010] VSC 266.

[6] [2007] VSCA 122 at [30]

[7] [2007] VSCA 122 at [31].

[8] Per Ross J, in Brott v Legal Services Commissioner [2008] VCAT 2399 at [67]

[9] [2013] VSCA 2013 at [107]

[12] Citing Ryan v The Queen [1982] HCA 30; (1982) 149 CLR 1, and R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452.

[13] Also Burgess v McGarvie (Legal Services Commissioner [2013] VSCA] 142

[14] [2014] HCA 2, 12 February 2014.

[15] French CJ, Hayne J, Kiefel J and Bell J, at [23].

[17] [2010] VCAT 742

[18] [2013] VCAT 390

[19] For example, Legal Services Board v McGrath [2010] VSC 332, where the defendant had been convicted of a number of serious offences involving child pornography

[20] See Myers v Elman [1940] AC 282 at 291, per Viscount Maugham

[22] [2013] VCAT 1177 (decision in relation to findings) at [129]; and decision in relation to penalty

[23] Legal Services Commissioner v Sampson 16 August 2013, unpublished at [15]-[17]

[25] [2008] VCAT 2399 (24 November 2008) referred to in Legal Services Commissioner v Turner [2013] VCAT 390, Butcher M.

[26] Counsel for the Commissioner submitted that cases such as Legal Services Commissioner v Brott [2011] Victorian Civil and Administrative Tribunal 110 were comparable. That submission is rejected: Mr Brott had a long disciplinary history including a previous period of cancellation, and specific deterrence was a far more important factor than it is here.

[27] Australian Competition and Consumer Commission v Sampson [2011] FCA 1165.

[28] R v Merrett & Ors [2007] VSCA 1; (2007) 14 VR 392, per Maxwell P, referred to in Stirling at [121]

[30] [2010] VCAT 742, at [44]

[31] A reduction offered by the Commissioner to take account of the charges that were not proven, which I consider to be appropriate.