We estimate that after deductions regarding Centrelink benefits and legal costs the plaintiff will receive the sum of approximately $240,000.

1. Ms Guedelha authorised the settlement which was carried into effect.
2. On 9 November 2005 the firm forwarded a cheque for $230,002.39 to Ms Guedelha calculated as follows:

1. It will be seen that this ultimate dividend from the settlement for Ms Guedelha was almost $10,000 lighter than the one which she had been led to expect and it was presumably for this reason that she instructed another law firm to act for her and to contest the $60,000 deduction which had been made from the settlement moneys. The practitioner's firm declined to refund or reduce the $60,000 and as a result of the client's objections the matter proceeded for a taxation before the then Supreme Court Taxing Master, Master Wood now Associate Justice Wood and the head of the State's Costs Court.
2. The Master as he then was, assessed the bill at $41,742.88 and required the practitioner's firm to account for the $60,000. The effect presumably would be to entitle Ms Guedelha to a refund of almost $20,000.
3. The Master proceeded on the basis that there was no proof that the practitioner's firm had complied with Section 86 of the Legal Practice Act 1996 which required disclosures and certain documentary steps by virtue of sub-sections (1) and (3). It was with respect to this issue that the major incident or the significant incident in this proceeding occurred. Presumably with a view to supplying the deficiency in proof on these matters, the practitioner swore an affidavit relative to them. His firm was being represented by a costs consultant, Ms McNamara who I record so far as I am aware is not related to me. Ultimately the Taxing Master did not consider or rely upon that affidavit at all; but it is clear that the practitioner sought to have the Master rely upon the affidavit and to achieve a determination in favour of his firm on the basis of the affidavit.
4. The affidavit was brought into existence as a result of a direction to one of his legal assistants contained in a handwritten file note which was a rough draft of the affidavit. The effect of the draft was that the firm had caused to be posted material under Section 86(1) of the Legal Practice Act 1996, namely a conditional fee agreement sent under cover of a letter dated 9 October 2010 and also a notice pursuant to Section 86(1) sent under a letter bearing similar date. The affidavit as prepared and it would seem sworn hurriedly by the practitioner immediately before or perhaps during a brief stand down at the commencement of the hearing before the Taxing Master referred not to these letters of 9 October 2003 but rather to letters of 16 October 2003. The affidavit exhibited letters of that date which aside from being what was on any view an incorrect date were in some matters of detail, different from the letters of 9 October 2003.
5. Ms Guedelha for her part denies receiving any letters of this sort whether bearing the dates 9 October or 16 October; but the practitioner's files indicate that letters bearing date 9 October were dispatched.
6. A more material concern is that the documents as exhibited to the affidavit show them as having been addressed to a post office box number which had been nominated by Ms Guedelha as her address - but only much later in the retainer. The file copy of the 9 October correspondence showed that it was despatched to 34 Marland Road, Boronia and not to the post office box number. Clearly there were matters of, I will not say irregularity, but matters of confusion in the firm's records and files. The legal assistant who prepared the affidavit submitted along with it a lengthy file note canvassing these various matters including the discrepancy in the addresses. As Mr Young, Counsel for the practitioner has pointed out, the file note whilst in some respects an admirable piece of detective work is not and cannot be regarded as 100% accurate in itself. It represented to the practitioner for instance that the affidavit which had been prepared for his signature was generally in accordance with his instructions whereas the fact was that it exhibited a different letter with a different date from the one that his handwritten draft had sought to refer to.
7. There is no clear explanation as to why the matters in the file note were not the subject of further investigation by the practitioner. It is reasonable to infer I think that under the press of time he saw an affidavit that on the face of it appeared to establish what he believed his firm needed to establish in the taxation proceedings and he simply swore it without carrying out the further investigations which the file note manifestly called for before the solemn act of swearing an affidavit on oath was taken. As it was however the Taxing Master waved that matter away.
8. These proceedings were commenced with the Commissioner seeking findings against the practitioner based on some five charges. What Commissioner's Counsel, Mr Star has called 'the headline charge', entailed an allegation of knowingly making a false statement in an affidavit, a very grave matter indeed. The agreed facts and the consent orders to which I have made reference have been the result of discussions between the parties leading them to agree that whilst there has been wrongdoing here the wrongdoing has been reckless rather than knowing. As a result I quote now from paragraph 2 of the Statement of Agreement Facts:

The respondent admits Charge 1A as follows: The Respondent admits misconduct at common law within the meaning of "professional misconduct" in s 4.4.3(1) of the Legal Profession Act 2004 (the 2004 Act) in that, on 5 October 2006, the Respondent sought to file in Court and rely upon an affidavit he swore that contained the false statements that:

(a) on or about 16 October 2003, a notice pursuant to section 86(1) of the Old Act and a conditional costs agreement pursuant to section 86(3) of the Old Act was sent to ms Natasha Guedelha, now known as Natasha Morell (Ms Guedelha) at her postal address of PO Box 592, Bayswater Victoria 3135; and

(b) the affidavit exhibited a true copy of the said documents sent to

(c) recklessly made statements on oath by swearing the affidavit without satisfying himself of the accuracy and correctness of the facts in (a) and (b) to which his affidavit related; and

(d) deposed to (a) and (b) when immediately before the affidavit was sworn the Respondent knew, or should have known, that there was a risk that (a) and (b) might not be accurate and correct in fact.

1. It is appropriate to that I quote from paragraph 28 of the Agreed Statement of Facts:

(e) Exhibit "HDN1" to the affidavit did not comprise copies of the documents referred to in paragraphs 21, 23 and 26 above as the Respondent had intended and expected it to do;

(f) Exhibit "HDN1" comprised a document which the Respondent had not ever before seen, had not signed, did not ever sign and did not ever ask or authorise any person to create;

1. These admissions draw attention to the distinction between the date 9 October which appeared on the file material held by the practitioner's firm and the exhibited document of 16 October, the minor though not immaterial differences in the text between the two of them and the discrepancies in the addresses.
2. With respect to Charge No. 4 which is the other of the two charges which remain in the Amended Statement of Charges filed on behalf of the Commissioner:

The practitioner is charged with unsatisfactory conduct within the meaning of s.4.2.2 of the Act in that the respondent contravened section 86 of the Act by not giving the client in October 2003 or any time in 2003 a written statement with the information required for compliance with section 86 of the Old Act.

1. Section 86 without turning to it in detail, in broad terms relates to disclosure on the part of the practitioner of costs matters.
2. Again quoting from the Statement of Agreed Facts:
   1. Section 86 of the 1996 Act prescribed information that must be given by a legal practitioner or firm to a prospective client or client in relation to legal costs.
   2. Respondent accepts that it was his responsibility on Ms Guedelha's matter to satisfy the requirements of s86 of the 1996 Act.
   3. The Respondent signed the relevant cost disclosures and believes that they were sent to Ms Guedelha at 34 Marland Road, Boronia by ordinary prep-paid post by:

(a) a letter dated 9 October 2003 addressed to ms Morell (nee Guedelha) at 34 Marland Road, Boronia Vic 3153 headed "Conditional Fee Agreement: Section 86(3) of the Legal Practice Act 1996" with a file reference SB:SH: 0001201; and

(b) a document dated 9 October 2003 addressed to Ms Morell (nee Guedelha) at 34 Marland Road, Boronia Vic 3153 headed "Notice Pursuant to Section 86(1) of the Legal Practice Act 1996" with a file reference SB:SH: 0001201.

1. Both of those documents included provisions for acknowledgement on the part of Ms Guedelha and return. One provided for a default situation if no acknowledgement were given in writing but instructions were thereafter given, the other did not. In fact no written acknowledgment was given by Ms Guedelha and as previously noted she denies ever having received those documents.
2. The narrative that I have given so far indicates that aside from causing the correspondence described a moment ago to be dispatched, the practitioner took no action to follow up or verify what had occurred.
3. In the circumstances of those two matters the parties have submitted proposed consent orders which in the case of Charge 1A would entail the practitioner being reprimanded and required to pay a fine of $15,000 and upon a finding of professional misconduct being misconduct at common law and with respect to Charge 4 with a finding of unsatisfactory professional conduct requiring the respondent to be reprimanded. The proposed consent orders also entail the practitioner making a contribution of $15,000 to the applicant on account of its legal costs with the applicant not otherwise pressing any claim for costs. The parties joined in making common submissions in support of that disposition. The finding of misconduct at common law invoked the formulation that misconduct at common law is constituted by conduct by a professional person in the practice of his profession which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute. That formulation comes from Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, 751 as a standard for legal practitioners and has been adopted in Victoria, for instance, see Re A Solicitor [1960] VicRp 96; [1960] VR 617, 620 by Dean J.
4. The parties concede that the matters alleged in Charge 1A and admitted constitute very serious matters indeed. The Commissioner as previously noted has in the circumstances and in light of the admissions made, withdrawn the charge that these statements were made knowingly. The joint submissions observed that under Section 4.4 of the Legal Profession Act 2004 which governs Charge 1A, the Tribunal is empowered to impose a fine for professional misconduct of up to $50,000, Section 4.4.19(b). It is submitted that $15,000 representing something approaching a third of that maximum is an appropriate acknowledgement of the seriousness of the charge which has been made and admitted.
5. Reference is then made to the judgement of the President of the Court of Appeal, Maxwell J in Quinn v Law Institute of Victoria Limited [2007] VSCA 122 at paragraph [30] where the learned President said:

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

1. The joint submissions contend that in the circumstances there is little need for specific deterrence here because there is a $15,000 fine involved, a $15,000 contribution to costs and the reprimand and nothing more is needed for specific deterrence. There is, it is submitted a very major consideration of general deterrence in the present matter. I quote the submissions:

It is essential to the administration of justice that legal practitioners fully satisfy their duty of candour to the courts even putting aside dishonesty which is not the subject of Charge 1A there is still a heavy onus on solicitors when making affidavits to ensure that they read and understand the truth of its contents thus a reckless statement on oath as to its contents constitute professional misconduct at common law it being conduct which practitioners of good repute and competence would reasonably regard as disgraceful or dishonourable.

1. There is a reference to a decision of the Victorian Legal Profession Tribunal under the Chairmanship of the then retired Fullagar J Legal Ombudsman v D'Abaco [1999] VLPT 7. It is also relevant according to the submissions to note that the practitioner co-operated with the investigation and has at this point made a candid admission. There are certain disciplinary matters in the practitioner's past but none that are urged to be relevant to the disposition of the present matter, he does not come before the Tribunal with a spotless record but the past issues are not said to be of significance or materiality.
2. Whilst the parties joined in making the submissions which I have recorded as to Charge 1A and joined in the invitation to make the orders which I have recorded, Counsel for Mr Nowicki, Mr Anthony Young drew my attention to Clause 4.4.20 alternative finding in the Legal Profession Act 2004. That says:

The Tribunal may find a person guilty of unsatisfactory professional conduct even though the application alleged professional misconduct.

1. He did not elaborate on that point given the general submission which he made which was supportive of the consent orders. He drew my attention to the determination of the Administrative Decisions Tribunal of New South Wales Law Society of New South Wales v McElvenny [2002] NSWADT 166. There are I think a number of competing and somewhat difficult issues that need to be considered relative to Clause 4.4.20. The first of them is that whilst a finding of professional misconduct at common law is manifestly justified in the case of knowing misstatements by a practitioner in an affidavit where the issue is one of recklessness the case is far less clear. In one sense it is a very human failing for a busy practitioner waiting for an affidavit to use in a proceeding to regard the affidavit and its swearing as a matter of immediate importance rather than a consideration of a lengthy file note which on any view should have given him cause for concern and led him not to swear the affidavit. Certainly, a failure to look at the file note or failure himself to carry out the sort of independent investigations which would have led him to the truth and revealed the falsity of the affidavit are the sort of matters that proper discharge of professional duty requires. Are his failure to do these things, so serious a matter as to amount to professional misconduct according to the formulation which I have quoted? I think it is a relatively finely balanced issue and one on which minds might differ. What I think is material here and what I believe tips the balance in favour of my making the orders in the form of those that are proposed as consent orders are two matters. First, the fact that the consent orders are advanced as consent orders and despite Mr Young's drawing my attention to Section 4.4.20 of the Legal Profession Act 2004 he has nevertheless consented to a finding of professional misconduct and secondly and perhaps more materially, the history of this matter indicates that it represents in itself a settlement or compromise. The Commissioner initially wanted to allege something far more serious and by way of compromise the Commissioner has accepted admissions along the lines that I have described. It would to some degree falsify that settlement if I were to exercise the discretion under Section 4.4.20 in the manner hinted at by Mr Young in circumstances where his client has consented to the more serious finding. Accordingly I propose accepting the proposed consent orders as to Charge 1A.
2. Charge 1A is of course the much more serious of the two charges. Charge 4 which I am invited to make a finding of unsatisfactory professional conduct with respect to is not however to be trivialised but the relative importance and severity of the conduct or the omissions involved is quite clear.
3. The disposition I am asked to make here is one of reprimand. I think in the circumstances that that is appropriate. This is a much less serious matter than the other matter. In addition Counsel for the Commissioner, Mr Star has invited me to draw an inference that Master Wood as he then was, taxed off a considerable portion of the practitioner's firm's bill, almost a third based on a finding under Section 91 of the 1996 Act that the firm had failed to comply with Section 86. Therefore the practitioner has in substance already suffered a civil penalty relative to those matters. Accordingly, I propose making the orders as proposed in the consent orders that have been submitted.