1. These proceedings arise out of events in November 2005 when Mr Piva was seeking to purchase a 333 SP Ferrari racing car for $1.378 million. At that time Mr Piva had dealings with Sportiva Macchina International Pty Ltd (Sportiva) with a view to trading in his 360 NGT Ferrari (which he had bought from Sportiva earlier that year) and purchasing the 333 SP.
2. Sportiva engaged Maranello Motorsport Pty Ltd, a company owned and operated by Mr Mark Coffey, to sell cars on its behalf for a commission. Mr Coffey represented Sportiva in the dealings with Mr Piva about the 333 SP.
3. The parties ended up in dispute about whether Mr Piva had agreed to buy the 333 SP.
4. On 30 March 2006, Mr Piva commenced proceedings in the Supreme Court of Victoria against Sportiva and Maranello (proceeding No 5464 of 2006) seeking the return of the 360 NGT Ferrari of which Sportiva had taken possession on the basis that it had been traded in and a new contract had been made to purchase the 333 SP. Mr Piva acted for himself in that proceeding, assisted by an articled clerk under his supervision. At all material times Mr Piva was an Australian legal practitioner within the meaning of the Legal Profession Act 2004 (the 2004 Act).
5. Sportiva counterclaimed, seeking damages for breach of contract as a result of Mr Piva's repudiation of the contract to purchase the 333 SP. Sportiva alleged that Mr Piva had contracted to buy the 333 SP on 9 November 2005 and that the contract was partly in writing and partly oral. Mr Piva denied he had contracted to buy the 333 SP. In the alternative he said any such contract was subject to finance.
6. Mr Piva's role in the Supreme Court proceedings ultimately led to charges being brought against him by the Legal Services Commissioner pursuant to s 4.4.13(2) of the 2004 Act. It is those charges with which we are presently concerned.
7. Mr Piva faces three charges of common law misconduct. The substance of these charges is that Mr Piva:
   • (i) knowingly withheld a relevant document when giving discovery in the Supreme Court proceedings in which he was both a party and the solicitor on the record (charge 1);
   • (ii) knowingly gave false evidence in the Supreme Court proceeding (charge 2); and
   • (iii) deliberately misled a person with whom he had entered into a commercial transaction, thereby behaving in a manner that would reasonably be regarded as disgraceful or dishonourable by fellow practitioners of good repute and competency (charge 3).
8. Before a legal practitioner may be found guilty of misconduct at common law it must be shown that he or she has been personally implicated in conduct that would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency[1].
9. The Commissioner bears the onus of proof in respect of the allegations of misconduct made against Mr Piva. The standard of proof required is proof on the balance of probabilities, or to put it another way the allegations must be established to the 'reasonable satisfaction' of the Tribunal[2]. The strength of evidence necessary to establish a fact on the balance of probabilities may vary according to the circumstances. As their Honours Mason CJ, Brennan, Deane and Gaudron JJ said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd:

"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."[3]

1. In the circumstances of this case we are conscious of the seriousness of the allegations made against Mr Piva and the potential gravity of the consequences for him in the event that the allegation is established to the 'reasonable satisfaction' of the Tribunal. It follows that clear and cogent evidence will be required before such satisfaction can be attained on the balance of probabilities.
2. Before turning to deal with each of the charges we propose to deal briefly with the Supreme Court proceedings.

1. On 18 September 2006 his Honour Justice Hargrave gave judgment for Sportiva on its counterclaim for breach of contract. His Honour found the relevant facts as follows.
2. On 5 November 2005 Mr Piva met with Mr Coffey and discussed the possibility of purchasing the car. Mr Coffey said the price was $US850,000 and calculated that the Australian dollar equivalent was $1,378,800.
3. Mr Piva informed Mr Coffey that the only way he could afford the $1,378,800 asking price was if he could transfer the lease on his 360 NGT for $480,000 to the new car and pay the balance at a later date. Mr Coffey indicated that he thought that deal could be done. Mr Piva indicated that he would speak to Mr Michael Pratt, his finance broker, about arranging finance.
4. On 7 November 2005, Mr Piva spoke with Mr Pratt by telephone and told him about the car. Mr Pratt told the practitioner that he did not see any problems with obtaining financing, but said that he would have to make an application to the Adelaide Bank (which was the existing financier for the 360 NGT).
5. On 9 November 2005, after seeing the car in operation on 7 November 2005, Mr Piva telephoned Mr Coffey and said that he wanted to purchase the car at the asking price, less a trade-in allowance for the 360 NGT of $480,000. Mr Piva said he would have the financing on the 360 NGT transferred over to the car and would pay the balance of $898,800 on 3 April 2006. That conversation concluded with Mr Coffey asking Mr Piva to put a proposal for the purchase of the car in writing and to fax it to him. Mr Piva wrote out such a facsimile, signed it in three places and faxed it to Mr Coffey.
6. Later that day, Mr Coffey telephoned Mr Piva and told him that he accepted his proposal to buy the car, and congratulated him on the purchase. The practitioner said he would contact Mr Pratt about finance.
7. On Friday 18 November 2005, Mr Piva emailed Mr Coffey and said he had changed his mind and did not want to purchase the car. Mr Coffey replied by stating he had taken the car off the market for two weeks 'based on our agreement' and asked Mr Piva to call him to discuss the matter. The next day the practitioner visited the Sportiva showroom and spoke with Mr Coffey. He confirmed that he did not wish to purchase the car.
8. By 22 November 2005 Mr Piva had changed his mind and he again spoke with Mr Coffey and told him that he would proceed with the purchase of the car in accordance with the terms stated in the 9 November facsimile, except that he wanted to change the date for payment of the balance of the purchase price from 3 April to 9 May 2006. Mr Piva confirmed this by email. Mr Coffey accepted his request for an extension of the date for payment of the balance of the purchase price.

"Mike, I have just sold the Ferrari 360 N-GT so I want it taken off the policy. In turn I have brought [sic] Ferrari 333 SP serial number 032 from Mark Coffey, I need a certificate of currency showing the insured amount as $1,378,000.00 on the same terms and conditions as the previous policy and showing the 'Adelaide Bank Ltd' as the interested party. I would be pleased, if that policy could start as soon as possible."

1. The practitioner's failure to discover this email is the substance of charge 1.
2. On 24 November 2005, Mr Pratt submitted a written application to Adelaide Bank for finance to Mr Piva of $580,000 on the car. Shortly after that application was submitted the Adelaide Bank informed Mr Pratt that finance would not be provided. Mr Pratt was unable to persuade Adelaide Bank to change that position.
3. Mr Pratt informed Mr Piva that he had been unsuccessful in obtaining finance from Adelaide Bank. Mr Piva asked him to try to obtain finance from other financiers. Subsequently, at an unspecified time in December 2005, Mr Pratt made two telephone enquiries seeking finance from St George Bank and BankWest, both of which indicated that they would not provide finance. No efforts to obtain finance were made after mid-December 2005.
4. During December 2005 there was frequent contact between the practitioner and Mr Coffey concerning the time by which finance would be available. Those conversations form the basis of charge 3.

Charge 1: Failing to discover the email of 23 November

1. Charge 1 alleges that the practitioner is guilty of misconduct at common law within the meaning of 'professional misconduct' in s 4.4.3(1) of the 2004 Act, in that in the course of legal practice, and in breach of his paramount duty not to mislead the Court, the practitioner knowingly withheld a relevant document when giving discovery in Supreme Court proceeding No. 5464 of 2006. The 'relevant document' referred to in the charge is the email of 23 November 2005 from Mr Piva to his insurance broker.
2. The email was obtained by the defendants from OAMPS in answer to a subpoena issued on 28 June, which required the production of certain documents by 12 July 2006. It was not produced by Mr Piva in discovery.
3. Discovery was delivered in three parts via Lists of Documents dated 19 May, 9 June and 17 August 2006. Mr Piva accepts that he looked at the list of documents filed and gave consideration to the nature of the documents included in the lists.[4]
4. It was put to Mr Piva in cross-examination during the Supreme Court proceeding that he deliberately withheld the email of 23 November 2005 from discovery because he was concerned that it contained an admission that he had contracted to purchase the car. Mr Piva denied that allegation. Despite this denial Hargrave J found, in paragraph 39 of his judgment, that:

'The deliberate failure to discover a relevant document is a serious allegation to make against any litigant. When the litigant is a solicitor, who is acting as his own solicitor in the litigation, the allegation is of increased gravity, and this must be taken into account in reaching a finding. Having considered all of the evidence, and the hesitant and at times evasive demeanour of Mr Piva in giving his evidence on this issue, I regretfully find that Mr Piva deliberately withheld discovery of his email to Mr Mier. In making this finding, I have had particular regard to the false evidence given by Mr Piva concerning his conversation with Mr Coffey on 9 November 2005. The use by Mr Piva of the words "invitation to treat" in this evidence, and his explanation for using that phrase, demonstrates his heavy focus upon conducting his case before the Court on the basis that no agreement ever came into existence. This case was put in letters of demand written by Mr Piva prior to the issue of proceedings and was pleaded by him. The issue was obviously firmly in Mr Piva's mind at the time he gave discovery in the proceeding. This finding seriously undermines Mr Piva's credibility as a witness.'

1. We are, of course, not bound by his Honour's finding and must reach our own decision in respect of this issue.
2. There is no dispute that Mr Piva was responsible for discovery in the Supreme Court proceeding both as a party to the proceeding, and as solicitor for a party to the proceeding.
3. Nor is there any dispute that the email dated 23 November 2005 from Mr Piva to Mr Mier was a discoverable document in the proceeding and that it was not discovered by the plaintiff.
4. The issue for determination is whether Mr Piva knowingly withheld the document when giving discovery in the proceeding, knowing it to be a relevant document. In his evidence Mr Piva denies knowingly withholding this document from discovery.
5. We reject Mr Piva's claim that his failure to discover the email was inadvertent. We have concluded that it was deliberate, for four reasons.
6. First, Mr Piva kept a hard copy file of all of his communications, including email communications, in relation to the purchase of the 333 SP. At paragraph 11 of his witness statement, Mr Piva says:

"I had opened a file in the office in relation to the acquisition of the racing car. As emails were created, I printed them out and placed them on that file. The discovery process would have involved including any documents on that file thought to be relevant to the case. A further search for documents would have been made on my computer. The process of both collecting documents from the file and the computer should have captured the excluded document in order to give discovery of it."

1. In the course of his cross examination Mr Piva said that documents were placed in the file as they were generated, including his email communications with Mr Mier.[5]
2. Having regard to the manner in which the relevant records were filed, Mr Piva was unable to offer any credible explanation as to how he could have failed to locate the email.[6]
3. Second, it is not credible to conclude that Mr Piva would have failed to locate the only document that contained unequivocal admissions that he had sold the 360 NGT and had made a contract to purchase the 333 SP.
4. The essence of Mr Piva's case in the Supreme Court proceedings was that he had not contracted to purchase the 333 SP. He was also seeking to recover his 360 NGT from Sportiva. Accordingly he had a strong motive not to give discovery of the email because if that document had been discovered it would have been damaging to that case.
5. We reject the submission put on Mr Piva's behalf that he had very little motive to conceal the email because there were other documents discovered which demonstrated that Mr Piva had insured the 333 SP. The fact that Mr Piva had insured the 333 SP is not the key disclosure made in the email, rather it is the statements that he had sold the 360 NGT and bought the 333 SP which are important. The mere fact that he had insured the car was not fatal to his case because in the Supreme Court proceedings he contended that he had a good reason to insure the car even though he had not bought it. At paragraph 27 of his witness statement in the Supreme Court proceeding, Mr Piva says:

"On or about 23 November 2005 I contacted OAMPS Insurance Brokers Pty Ltd ("OAMPS") to take out a one-month policy on the 333 SP. I was concerned that if I was going to purchase this car that it was being used by Sportiva Macchina at the Classic Adelaide Rally and I did not want to take any risks by having a potential asset uninsured. OAMPS arranged cover for the 333 SP through the Dawes Underwriting Group (CB 113). I asked OAMPS to have the certificate of insurance endorsed with the interest of the Adelaide Bank as the interested party. I did this because if I was to purchase the 333 Sp it would only be after obtaining finance through Adelaide Bank. However, at that time, I had had no confirmation of any approval of the necessary finance. The reason I ultimately cancelled the policy on the 333 SP was because I could not get finance through the Adelaide Bank and the purchase could not proceed."

1. The argument advanced in the above paragraph could not have been advanced consistently with the email. The fact that the email - alone of all the OAMPS documents - contradicted the case he was advancing points strongly to the conclusion that Mr Piva's failure to give discovery of the email was not inadvertent. Contrary to his claim before the Tribunal, the email contained information that clearly did not emerge from any of the other OAMPS documents.
2. Mr O'Bryan, counsel for Mr Piva, contended that the email was not a critical document at all, in fact it was a 'very insignificant document'. It is not a contractual document between the parties to the litigation and was not an admission at all.
3. We reject this attempt to downplay the significance of the email. The email contains admissions against Mr Piva's interests in respect of the two critical issues in the Supreme Court litigation - the sale of the 360 NGT and the purchase of the 333 SP.
4. Mr O'Bryan also submitted that Mr Piva had very little motive to conceal the existence of the email because it was a document that fell within the scope of the documents that OAMPS was required to produce under the subpoena. As the document was clearly going to come to light as a result of the subpoena there was no point in withholding the document in the circumstances.
5. This proposition proceeds on the assumption that Mr Piva had personal knowledge that the subpoena had been served, and its terms. We are not satisfied that the evidence supports such an assumption. There is no direct evidence to this effect. At paragraph 16 of his statement Mr Piva simply says that 'On 28 June 2006, my firm was served with a copy of the subpoena issued against OAMPS' [emphasis added].[7] Given that Mr Piva does not appear to have had a detailed involvement in the day to day conduct of the litigation[8] it cannot be assumed that he had personal knowledge that the subpoena had been served and its scope. We reject the contention that service of the subpoena meant that Mr Piva had very little motive to conceal the existence of the email.
6. Third, on Mr Piva's own evidence it is likely that he had regard to the email in preparing his witness statement in the Supreme Court proceedings. That statement is dated 11 July 2006 and at paragraph 27 it records that Mr Piva communicated with Mr Mier on 23 November 2005. In his evidence before the Tribunal Mr Piva accepted that he would have needed to refresh his memory as to the date on which he contacted Mr Mier:

'I surmise I must have had a note or something, either an email or something'[10]

1. When asked if the email was the source of his statement that he had contacted Mr Mier on 23 November Mr Piva says:

1. Mr Piva goes on to say that he was not aware of any other document that showed he had contact with Mr Mier on that date.[12]
2. In response to this point it is put on Mr Piva's behalf that there are other documents that indicate the date on which the request for insurance on the 333 SP was made by Mr Piva to Mr Mier.[13] On this basis it is said that it does not follow that the only document that would have provided the information in paragraph 27 of his witness statement in the Supreme Court proceeding was the email of 23 November 2005 to Mr Mier. We do not find this argument persuasive. We accept that there were other documents available to Mr Piva that imply that insurance cover commenced on 23 November 2005 but these documents do not mention any communication with Mr Mier, either on that date or on any other date. Further, while Mr Piva acknowledged that these documents were available to him at the time he prepared his witness statement he does not say that he referred to them to refresh his memory when drafting paragraph 27 of his witness statement.
3. Finally, in his evidence to the Tribunal Mr Piva was non-responsive[14] and evasive[15]. He was a far from impressive witness. These matters have led us to treat his evidence with considerable caution.
4. In addition to the matters we have dealt with Mr O'Bryan contended that Mr Piva's marital difficulties at the relevant time supported a conclusion that his failure to discover the email was inadvertent rather than deliberate.
5. We find this argument unpersuasive. Mr Piva reconciled with his wife in April 2005, while the events the subject of the Supreme Court proceedings did not occur until November 2005, with discovery taking place after May 2006. Mr Piva may have had some ongoing marital difficulties at the relevant time but we are not persuaded that those difficulties provide any real basis for concluding that his failure to discover the email was inadvertent.
6. In light of the above, we find that:
   • (i) Mr Piva's claim that his failure to give discovery of the email was inadvertent is false;
   • (ii) Mr Piva deliberately withheld discovery in relation to the email in order to improve his prospects of successfully prosecuting proceeding 5464 of 2006, and his prospects of defending the cross claim.

Charge 2: Knowingly giving false evidence in the Supreme Court proceeding.

1. Charge 2 alleges that the practitioner is guilty of misconduct at common law within the meaning of 'professional misconduct' in s 4.4.3(1) of the Act, in that, in breach of his oath and his duty not to mislead the Court, the practitioner knowingly gave false evidence in Supreme Court proceeding No. 5464 of 2006.
2. Justice Hargrave said at paragraphs 16 to 18 of his judgment:

"Mr Piva gave elaborate evidence about his recollection of the content of this telephone conversation. His evidence was laden with obvious reconstruction, embellished with legal jargon and infected by advocacy of his case. For example, Mr Piva initially said that he told Mr Coffey that any "invitation to treat" which he might make with reference to the car would be "subject to finance". Later, Mr Piva readily acknowledged that these words were not in fact used by him in his conversation with Mr Coffey.

When he first entered the witness box, Mr Piva repeatedly said that he used the words "invitation to treat" in his telephone conversation with Mr Coffey on 9 November 2005. Subsequently, having had the opportunity to confer overnight with his counsel, he retracted the expression. His explanation for giving this false evidence in respect of the use of the term "invitation to treat" was wholly unconvincing. When asked why he had used this phrase, instead of referring to a "proposal", he said:

'Because this has been playing on my mind. Lately I have been reading a lot of contract books and I keep referring to the terminology, invitation to treat, I'm sorry, I just took upon that terminology when I really meant proposal.'

I reject this explanation. Mr Piva is a solicitor. He was asked, on his oath, to recount the conversation with Mr Coffey on 9 November 2005 to the best of his recollection. He did not do so."

"... Having considered all the evidence, and the hesitant and at times evasive demeanour of Mr Piva in giving his evidence on this issue, I regretfully find that Mr Piva deliberately withheld discovery of his email to Mr Mier. In making this finding, I have had particular regard to the false evidence given by Mr Piva concerning his conversation with Mr Coffey on 9 November 2005. The use by Mr Piva of the words 'invitation to treat' in his evidence, and his explanation for using that phrase, demonstrates his heavy focus upon conducting his case before the Court on the basis that no agreement ever came into existence ..."

1. The Commissioner submits that the Tribunal should find the following facts:
   • (i) Mr Piva was aware that Sportiva alleged that he had made a binding contract to purchase the 333 SP Ferrari on 9 November 2005, and that that contract was in part oral. He was therefore aware of the significance of his conversation with Mr Coffey on 9 November 2005 to the disposition of the case;
   • (ii) in giving evidence before Hargrave J, Mr Piva was asked on several occasions what was said in his conversation on 9 November 2005 with Mr Coffey of Sportiva. On at least four occasions, Mr Piva answered that he has used the words 'invitation to treat';
   • (iii) Mr Piva's examination in chief had concluded at the end of the day on 22 August 2006, and his cross-examination had not yet commenced;
   • (iv) at the commencement of proceedings the next morning, 23 August 2006, Senior Counsel for Mr Piva indicated that he wanted to ask Mr Piva an additional question. In answer to the question 'Mr Piva, is there some matter that overnight you have considered about the evidence you gave yesterday in-chief that you wish to change?', Mr Piva said that there was. He then said that the terminology 'invitation to treat' was not actually used during the conversation on 9 November 2005;
   • (v) Mr Piva's explanation before both Hargrave J and the Tribunal for having used the words 'invitation to treat', when asked what was said during the critical conversation on 9 November 2005, was wholly unconvincing, and should be rejected. Mr Piva's answers to questions on this topic before the Tribunal were hesitant and evasive. At one point he indicated that he could not recall why he had changed his evidence in the Supreme Court. Later, he referred to the fact that he had been studying contract law texts around the time of the hearing. Even if that is true, it does not explain why he would use terms from those texts when he was asked to recount what was said in a conversation. There is no reason why he should have been confused when asked to recount the terms of a specific conversation.
   • (vi) Mr Piva's evidence that he did not discuss his repeated use of the words 'invitation to treat' with his counsel overnight on 22 August 2006 should be rejected. So, too, should his subsequent evidence that he did not recall any conversations that led to him changing this evidence. Mr Piva's evidence is inconsistent with his Senior Counsel's request to ask Mr Piva a further question on the morning of 23 August 2006, because that request shows that Mr Piva must have had a discussion of some kind to the effect that he wanted to change his evidence;

"Counsel: Before you had faxed that document through to Mr Coffey, had you had a telephone conversation with him earlier that day?"

Counsel: Can you tell us what that conversation earlier that day was about?

Mr Piva: That conversation was that I phoned him and said that I was interested in putting to him an invitation to treat, to buy the 333 SP."

"Counsel: What did you tell him during - at the time of that conversation?

Mr Piva: That I dearly wanted to buy the - the 333 SP but any invitation to treat I gave him would be subject to me obtaining finance."

"Counsel: What did you say to him in relation to your existing vehicle?

Mr Piva: I said that any - any invitation to treat I - I could give him would be subject to me transferring the present lease over to the 333 SP."

"His Honour: Did you say that to him during the conversation?

Mr Piva: Yes, yes I did. I said: 'I want the existing set of tyres, - set of wheels and tyres on the car for transport' because those tyres were old rubber ... and I said 'And of course the issue I have is that this invitation to treat is subject to me obtaining finance ..."

1. These exchanges all took place during the course of examination in chief. The next morning Mr Piva retracted part of his evidence in the following exchange with his counsel:

"Mr Wilson: Mr Piva, is there some matter that overnight you have considered about the evidence you gave yesterday in chief that you wish to change ...

Mr Piva: ... in my evidence yesterday I referred to my discussions with Mark Coffey of the 9th of November as an invitation to treat. That was not the terminology that I actually used with Mark, I actually used my proposal to purchase the vehicle."[17]

1. Two things may be said about Mr Piva's evidence to the Supreme Court:
   • (i) The first question put (see para 62 above) asks Mr Piva to tell the court 'what that conversation was about'. As framed the question invites a response about the substance of the conversation or about how Mr Piva would characterise it, rather than asking him to recite the actual words used. Seen in this way Mr Piva's reference to an 'invitation to treat' is consistent with his subsequent evidence that the word he actually used was 'proposal'. Nor can we discount the possibility that Mr Piva's answers to the subsequent questions about his conversation with Mr Coffey were influenced by his answer to the first, more general, question about this issue.
   • (ii) When asked to tell the court to the best of his recollection what he said to Mr Coffey during the course of his conversation Mr Piva said, among other things: 'Look, its - what I've got to propose to you is probably, it - its out of the question'[18]. It is notable that this exchange takes place between the third and fourth exchanges, in which he used the expression 'invitation to treat'. This suggests that even before he corrected his evidence at the commencement of the proceedings on 23 August 2006, Mr Piva used the expressions 'invitation to treat' and 'propose to you' interchangeably.
2. Contrary to the Applicant's submissions the circumstances here are distinguishable from those in Kyle v Legal Practitioners' Complaints Committee[19] and Barristers' Board v Young[20].
3. In Kyle the practitioner made a deliberate decision that it was in his client's interest to conceal a particular fact from the court. It was intended that the true position would be revealed once a particular witness had given evidence, but as Ipp J observed:

" ... once a practitioner has breached his duty by knowingly misleading the court for a perceived tactical advantage, it matters not (for the purposes of determining whether professional misconduct has been committed) for what period of time the court was misled. Professional misconduct has then been established. Of course, if the court was misled only for a relatively short period of time this may be relevant to the punishment that follows: but it is immaterial to whether the practitioner is guilty of misconduct."[21]

1. In the matter before us we are not persuaded - having regard to matters set out at paragraph 64 above - that Mr Piva embarked on a deliberate strategy to mislead the court.
2. In Young a barrister was removed from the roll on the ground that she knowingly gave false evidence before an Inquiry into electoral fraud by the Criminal Justice Commission. The barrister had given sworn evidence to the Inquiry 30 November and 6 December 2000. The falsity of her evidence was uncovered after she was shown a document during the course of her evidence on 6 December by counsel assisting the Inquiry. The barrister voluntarily returned to the Inquiry to give further evidence on 12 January 2001. On that occasion she said she had previously made false assertions from which she wished to resile. The fact that Ms Young had deliberately misled the Inquiry is apparent from her signed statement of 19 December 2000 in which she says that the evidence she gave at the Inquiry was 'tailored by me to an extent which included false assertions'. Ms Young said that she adopted this course because of (among other things) a 'fear of being implicated in electoral fraud.' However, in the proceedings before us there is no admission by Mr Piva that he sought to deliberately mislead the Court.
3. We have also had regard to Justice Hargrave's observations and his characterisation of the 'invitation to treat' evidence as 'the false evidence of Mr Piva'. But it is important to note that his Honour's observations were made in the context of assessing Mr Piva's credibility in order to determine a separate question - namely whether he had deliberately failed to discover the email of 23 November 2005. This is made plain from paragraph 39 of his Honour's judgment.
4. On balance we are not persuaded that Mr Piva is guilty of misconduct at common law in knowingly giving false evidence in breach of his oath and his duty not to mislead the court. In reaching this conclusion we have had particular regard to the matters set out at paragraph 64 above. We are also conscious of the fact that the Applicant bears the onus of proving the charge and that 'clear and cogent' evidence is required before such a serious allegation can be established to the reasonable satisfaction of the Tribunal. We are not so satisfied in this case.
5. We find Mr Piva not guilty of charge 2.

Charge 3: Deliberate misleading of a person in the context of a commercial transaction

1. Charge 3 alleges that Mr Piva is guilty of misconduct at common law in that for his own personal benefit he deliberately misled a person with whom he had entered into a commercial transaction. It is said that by his conduct he had behaved in a manner that would be reasonably regarded as disgraceful or dishonourable by fellow professionals of good repute and competency by manifesting an absence of the qualities of honesty and integrity that are essential for the conduct of practice.
2. This charge is based on the exchanges between Mr Piva and Mr Coffey about the availability of finance for the purchase of the 333 SP.
3. By email dated 6 December 2005, Mr Coffey asked Mr Piva 'As discussed are we on track for settlement with Pratt tomorrow?' The practitioner replied 'Mark, just spoke to Michael and he said he is nearly there, I will monitor it.' In relation to that conversation, Hargrave J found, at paragraph 47 of his judgment, that:

'In cross-examination, Mr Piva admitted that his statement that Mr Pratt had told him the finance 'is nearly there' was false. His only justification was that he desperately wanted to buy the car and that he was hoping he could obtain finance. In fact, at this time, Mr Pratt had already been refused finance by Adelaide Bank, and perhaps also by St George Bank and BankWest or one of them.

1. By email dated 20 December 2005, the practitioner wrote to Mr Coffey:

'I just got the news from Michael Pratt that he is not too far off completing the payment of the $580,000...the balance of funds will be paid in accordance with my email to you on the 22nd November 2005, namely the 9th May 2006.'

1. In relation to that email, Hargrave J found, at paragraphs 52-53 of his judgment, that:

'Once again, Mr Piva admitted in cross-examination that this email contained a lie. Mr Pratt had not just told him that he was "not too far off completing the payment of the $580,000". In fact, by this time, Mr Pratt had told him that he could not obtain finance. Mr Piva's only explanation for this lie was illuminating. He said that he desperately wanted to buy the car and was hoping that Mr Pratt might find some way of obtaining finance. He said "it looks terrible, I'm a petrol head, and ...I really wanted the car."

By lying to Mr Coffey about the impending availability of finance, I infer that Mr Piva was seeking to preserve his options whilst he considered his position over the holiday period. He was successful in this endeavour, as evidenced by Mr Coffey's email response: "Okay I'm standing by for the Pratt call, I'm working through the break".'

1. The factual matrix which forms the basis of charge 3 is as follows:
   • (i) By emails dated 6 December 2005, Mr Coffey asked 'As discussed are we on track for settlement with Pratt tomorrow?' and Mr Piva replied 'Mark, just spoke to Michael and he said he is nearly there, I will monitor it'.
   • (ii) By email dated 20 December 2005, Mr Piva wrote to Mr Coffey stating 'I just got the news from Michael Pratt that he is not too far off completing the payment of the $580,000 ... the balance of funds will be paid in accordance with my email to you on the 22nd November 2005, namely the 9th May 2006'.
   • (iii) Both of the above communications were false.
   • (iv) Mr Coffey was aware that Mr Piva is a solicitor. Indeed, in the past Mr Piva had acted for him.
2. These facts are not in dispute and are consistent with, and supported by, the finding made by Hargrave J. Further, in his evidence before the Tribunal Mr Piva acknowledged that he had made a deliberate decision to lie to Mr Coffey because he was 'trying to commercially keep the thing alive to see if I could buy the car because I really - it was a very rare car, I don't know if I'd ever have the opportunity of ever entertaining a purchase of that nature'.[22]
3. The issue in dispute is whether the admitted facts give rise to a finding of misconduct at common law.
4. The Commissioner contends that Mr Piva was not honest and trustworthy in his professional dealings with Mr Coffey. Instead, he lied in order to ensure that the 333 SP was not sold for a period of weeks so that he could preserve his options while deciding what to do. He adopted this course without regard to the possibility that it might cause loss to Sportiva.
5. The Commissioner accepts that the above conduct did not occur in the course of practice, but contends that professional misconduct at common law is not limited to conduct that occurs in the course of practice. Conduct unrelated to practice which manifests the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice may constitute professional misconduct at common law. In this case, it is said that Mr Piva's dealing with Mr Coffey, a former client, occurred in the context of a commercial dealing and that his behaviour demonstrated the absence of honesty and integrity, both of which are critical elements of acceptable professional conduct.

"It is not difficult to see in some forms of conduct, or in convictions for some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self respecting profession, or short of that may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self respect to share with the person convicted the kind and degree of association that membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar, and to draw the line is by no means always an easy task."[24]

1. It is submitted on Mr Piva's behalf that the facts here do not warrant a finding of misconduct at common law. It is said that Mr Piva's conduct can be characterised as nothing more than "horse trading" and in any event what Mr Piva said to Mr Coffey made no difference whatsoever to the transaction in relation to the purchase of the 333 SP. It is also argued that the fact that Mr Coffey is a former client of Mr Piva's is irrelevant.
2. Mr Piva acknowledges that the matter may have been more serious if it involved a lie in order to induce Mr Coffey to enter into the agreement or in order for Mr Piva to get out of the agreement. But that is not the case. It is submitted that while Mr Piva's conduct may be such as might attract some disapproval, it is not conduct that demonstrates unfitness to practice.
3. Counsel for Mr Piva also contended that having regard to the definition of professional misconduct in s 4.4.3(1) of the 2004 Act the practitioner can only be found guilty of professional misconduct if the Tribunal is satisfied that his conduct justifies a finding that he is not a fit and proper person to engage in legal practice. For reasons which will become apparent we have not found it necessary to deal with this construction argument. However we note in passing that a submission in similar terms appears to have been considered, and rejected, by the NSW Administrative Decisions Tribunal in N.S.W. Bar Association v Bryson.[25]
4. In the present context it is unnecessary to distinguish between professional misconduct at common law and the concept of 'fit and proper person'. We are fortified in this view by the following observation of his Honour Spigelman CJ in NSW Bar Association v Cummins (Cummins)[26]:

"It has not generally been useful or necessary to distinguish the terminology of 'professional misconduct' from other phrases such as a 'fit and proper person', 'good fame and character', 'unprofessional conduct', 'unsatisfactory professional conduct' etc. Statutory formulations differ from one jurisdiction to another. Some of the terminology, originally based on statute, has been adopted in cases decided under the inherent jurisdiction. In the exercise of this jurisdiction, it is not appropriate that the Court should indulge in the splitting of fine hairs on terminology."

1. Our starting point is to consider whether, as a general proposition, misconduct at common law is limited to misconduct in the course of professional work or whether it can be constituted by personal misconduct.[27]
2. The origin of the contemporary approach to misconduct at common law is to be found in the judgment of Lopes LJ in Allinson v General Council of Medical Education and Registration[28] in which his Lordship set out a definition of 'infamous conduct in a professional respect', as follows:

"... if it is shewn that a medical man in the pursuant of his profession, has done something with regard to which it would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of 'infamous conduct in a professional respect?"

1. In Allinson the Court was exercising a statutory jurisdiction and the phrase 'infamous conduct in any professional respect' appeared in s 29 of the Medical Act 1858 (UK). His Lordship's definition was applied to a solicitor in Re Solicitor; Ex parte Law Society[29] where the issue was the definition of 'professional misconduct' within the meaning of the Solicitors Act 1888 (UK).
2. In Re: Wearne[30] a lawyer convicted of allowing houses of which he was the landlord to be used by the tenants as brothels, was struck off. Lopes LJ said (at 448),:

"It appears to me that to hold that the jurisdiction of the Court to strike off the roll extends only to professional misconduct and neglect of duty as a solicitor would be placing too narrow a limit of that most salutary disciplinary power that the Court exercises over its officers. To my mind the question which the Court in cases like this ought to put to itself is this - Is the Court, having regard to the circumstances brought before it, any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor?"

1. In Myers v Elman[31] Viscount Maugham adopted the definition used in Allinson for the purpose of exercising the court's inherent jurisdiction:

"... Apart from the statutory grounds, it is of course true that a solicitor may be struck off the rolls or suspended on the ground of professional misconduct which words have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency."

1. It is notable that Viscount Maugham's approach omits the introductory words from the Allinson formulation, i.e. 'in the pursuit of his profession', and this approach has been followed in Australia[32].
2. In our view the authorities support the proposition that misconduct at common law extends to conduct which does not directly occur in the course of professional practice.[33] The issue which then arises is what types of personal misconduct may be regarded as constituting misconduct at common law?
3. In NSW Bar Association v Cummins[34] Spigelman CJ (with whom Mason P and Handley JA agreed) identified two types of personal misconduct which may constitute professional misconduct:
   • (i) acts which are sufficiently closely connected with actual practice albeit not occurring in the course of practice; and
   • (ii) conduct outside the course of practice which manifests the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice.
4. It is the second category of conduct with which we are concerned in these proceedings. We note that Spigelman CJ observed in respect of this category that the terminology of 'professional misconduct' overlaps with and, usually it is not necessary to distinguish it from, the terminology of 'good fame and character' or 'fit and proper person'.
5. The type of personal misconduct which may constitute misconduct at common law is best illustrated by a review of some of the cases.[35]
6. Before turning to those cases it is relevant to observe that s 4.4.4(c) of the 2004 Act expressly provides that conduct which has resulted in a finding of guilt in respect of a 'serious offence'[36], a 'tax offence'[37], or an offence involving dishonesty, is capable of constituting, relevantly, professional misconduct.
7. The decided cases involving conduct outside the course of practice may be broadly grouped into three categories:
   • (i) criminal convictions;
   • (ii) misconduct in connection with litigation; and

1. Honesty and integrity are essential attributes for a legal practitioner. It follows that convictions for repeated acts of dishonesty have led to disciplinary action against practitioners, for example:
   • a solicitor convicted of defrauding a company of which he was a director was struck off[38];
   • a lawyer convicted of four serious offences of making improper use of his position as company chairman for personal advantage and to cause the company disadvantage, was struck off. The court had regard to the fact that the offences were committed over a long period of time, rather than momentary aberrations[39]; and
   • a solicitor convicted of bribing a police officer was struck off[40].
2. Convictions for offences not involving dishonesty may also lead to disciplinary action, for example:
   • convictions for drug trafficking: In Re: a Practitioner[41] a lawyer sentenced to 7 years' imprisonment for being knowingly concerned in the importation of narcotics, and the possession of and trafficking in drugs of dependence, was struck off;
   • convictions for serious sex offences (particularly child sex offences) have resulted in practitioners being struck off[42].
3. Legal practitioners who have been convicted of offences relating to a failure to meet their tax obligations have also faced disciplinary sanctions. In NSW Bar Association v Hamman[43] a barrister embarked on a course of tax evasion over a number of years. The Court made it clear that there is nothing acceptable, let alone smart or clever, about evading taxation. As Mason P said at [85]:

"I emphatically dispute the proposition that defrauding 'the Revenue' for personal gain is of lesser seriousness than defrauding a client, a member of the public, or a corporation. The demonstrated unfitness to be trusted in serious matters is identical. Each category of 'victim' is a juristic person whose rights to receive property are protected by law, including the criminal law in the case of dishonest interception. 'The Revenue' may not have a human face, but neither does a corporation. But behind each (in the final analysis) are human faces who are ultimately worse off in consequence of fraud. Dishonest non disclosure of income also increases the burden on tax payers generally because rates of taxation inevitably reflect effective collection levels. That explains why there is no legal or moral distinction between defrauding an individual and defrauding 'the Revenue'."

1. But the mere fact that a practitioner has been convicted of an offence, irrespective of its nature or consequences, is not necessarily sufficient to warrant disciplinary action. For example:
   • ➢ in Ziems v Prothonotary of the Supreme Court of New South Wales[44] the High Court held that a barrister convicted of vehicular manslaughter should not be struck off; and
   • ➢ drug related convictions arising out of personal use have attracted a more lenient disciplinary response than striking off, depending on whether the practitioner's addiction has impacted on their professional duties and the prospects of rehabilitation.[45] More severe disciplinary sanctions are imposed where the drug addiction has resulted in dishonest or reckless behaviour.[46]

1. It is a basic precept of the legal profession that practitioners owe a duty of honesty and candour to the courts. It is the general duty of lawyers not to mislead a court by stating facts which are untrue, or mislead as to the true facts, or conceal facts which ought to be drawn to the attention of the court, or knowingly permit a client to deceive the court[47].
2. The judgment of the Full Court of the Supreme Court of Western Australia in Kyle v Legal Practitioners' Complaints Committee[48] is instructive in this context. In that matter Ipp J said:

"It is the essence of a charge of unprofessional conduct involving misleading the court that the practitioner concerned is guilty of having done something dishonourable[49]. The dishonourable quality lies in knowingly misleading the court. A practitioner who knowingly misleads a court will do so dishonestly. Therein lies the unprofessional conduct. There can be no professional misconduct where a practitioner innocently misleads a court; that is, without knowledge that the court is being misled. I accept, therefore, the submissions made by senior counsel that an intention to deceive, or dishonesty, is a necessary element of misleading the court." [footnotes omitted]

1. The confidence a legal practitioner commands in judges and other members of the profession must be such that they can rely implicitly on the practitioner's word and behaviour[50]. As Mahoney JA said in Foreman:

"The administration of justice would proceed more slowly and with greater costs if the courts before whom a solicitor practised felt it necessary to check the accuracy of what the solicitor had said to it... if what the solicitor has done is such that the court will hesitate before acting upon what the solicitor has said, that is... an important matter to be taken into account."

1. Similarly, in Council of the Law Society of New South Wales v Solicitor, Sheller JA (with whom Mason P and Giles JA agreed) said that:

"The solicitor's duty is to be faithful to the oath of office, to the courts, the fellow practitioners and most importantly to the clients... who should be able confidently to expect that the solicitor will honour the obligation and responsibility imposed by the relationship of solicitor and client. The sworn duty is a public duty. The administration of justice depends in large measure on the trust the courts and the public place in those who practise the law."[51]

1. This duty has been consistently characterised as being of fundamental importance to the due administration of justice.[52]
2. A practitioner's duty of honesty and candour to the courts applies despite the fact that the practitioner is acting in a personal capacity rather than on behalf of a client.
3. In striking off a barrister who had knowingly given false evidence on oath before a Criminal Justice Commission inquiry, the Queensland Court of Appeal said:

"The notion of a barrister's deliberately giving false evidence on oath is utterly repugnant to the essence of what goes to make up a barrister's fitness to practise: such as to erode, if not destroy, the complete confidence which a client, a fellow practitioner, the courts and the public should be able, without hesitation, to assume. It is fanciful to think those persons would not be at least sceptical about the honesty, thence fitness and propriety, of a barrister who had so recently lied on oath on important matters before a significant Commission of Inquiry."[53]

1. Similarly in New South Wales Bar Association v Maddocks[54] a barrister who failed to disclose that he was an undischarged bankrupt when representing to the court that he was fit to be appointed as a company director, was found guilty of professional misconduct. His Honour Kirby P (with whom Samuels and McHugh JJ concurred) said:

"[A]s a barrister, the opponent was under an additional duty of frank dealing with the Court beyond that demanded of the ordinary bankrupt. Even though he was appearing in his own interest, he could not, in his dealings with the Court, cast off the obligations which attached to him as a barrister. These included a duty of candour and the disclosure to the Court of any matter which would otherwise prevent the Court otherwise unwittingly becoming involved in an order, which would be in breach of the requirement of company law."[55]

1. In Re Thom; Ex parte The Prothonotary[56] the Full Court of the Supreme Court expressly found that wilful non-disclosure by a solicitor with respect to his own divorce proceedings constituted professional misconduct. The solicitor had knowingly failed to admit to his own adultery in circumstances where a litigant was obliged to do so and, accordingly, deceived the court in the exercise of its matrimonial causes jurisdiction. The Court concluded that fulfilment of a duty of candour to the court is a quality required of legal practitioners and its breach, even in personal litigation, manifested the absence of that quality.
2. The case of Coe v New South Wales Bar Association[57] provides another illustration of the application of this general approach. In that matter a barrister who swore a false affidavit as to his estimated income in family law proceedings in which he was a party, was struck off. In dismissing the appeal Mason P said:

"In reaching my conclusion that the appeal should be dismissed I have considered afresh the question of sanction. Shorn of the gloss, the findings of the Tribunal establish that a legal practitioner was guilty of having sworn a knowingly false affidavit. It was an affidavit filed in connection with legal proceedings in which, to the knowledge of the barrister, both the Family Court and the opposing litigant had obvious and material interests in getting at the truth on this particular matter. The false affidavit was unexplained by the practitioner who, despite warning, declined to enter the witness box ...

If (which I doubt) there are exceptional cases where a practitioner who knowingly swears a false affidavit that is filed in court could be regarded as fit to practice, this is not one of them."[58]

1. Conduct which falls short of breaching a practitioner's duty to the court, but which occurs in the context of litigation may also lead to disciplinary action.
2. The case of Chamberlain v Law Society of the Australian Capital Territory[59] illustrates this point. In that matter the Deputy Commissioner of Taxation had issued a writ claiming the amount of $25,557.92 from a legal practitioner. There was an error in the decimal point as the amount owing was $255,579.20. The practitioner drew terms of settlement and agreed to judgment in the amount claimed in the summons. The Deputy Commissioner was unsuccessful in his attempt to recover the balance[60] or to have the judgment set aside[61].
3. The Law Society instituted proceedings against Mr Chamberlain alleging professional misconduct.
4. The ACT Supreme Court found that the conduct was professional misconduct[62]. An appeal to the Federal Court was dismissed on this point[63].
5. The misconduct alleged was the act of procuring the Deputy Commissioner's execution of terms of settlement, which led to judgment in the mistaken amount. The reasons were variously expressed. In the ACT Supreme Court proceedings Miles CJ (at 17) said that the practitioner's conduct:

"Amounted to grave impropriety affecting his professional character ... indicative of a failure on his part to understand or practise the precepts of fair dealing in relation to his opponent and to the court."

1. In the Full Federal Court Black CJ (at 156) had regard to the fact that Chamberlain had been, "Using his knowledge and skills as a legal practitioner".
2. His Honour Lockhart J expressed his reasons for finding Chamberlain guilty of misconduct in these terms:

"The appellant chose deliberately to take advantage of the error ... for his own personal and tactical advantage ..." and "further", "[t]he use ...of the processes of the Supreme Court for the entry of judgments in all the circumstances ... was improper" (at 166).

1. In Cummins a barrister's 'complete disregard of his legal and civil obligations with respect to the payment of income tax' was such that the Court found that he was unfit to practise. In that case Mr Cummins did not lodge any taxation returns relating to his professional practice, or for any other personal income, for a period of 38 years but had not been prosecuted or convicted of an offence. His Honour Spigelman CJ characterised his conduct in the following way:

"For almost four decades, Mr Cummins took advantage of the full range of public services made available by taxation, not least in the provision of the court system in which he earned his income. He left the burden of all of this to his fellow citizens. Throughout the four decades he engaged in the rank hypocrisy of advocating that other people should perform their legal obligations, while systematically refusing to perform his own ...

The conduct of a barrister ... who has behaved in such complete disregard of his legal and civil obligations was necessarily such as to bring the entire legal profession into disrepute."[64]

1. Cummins was found guilty of professional misconduct and the Court declared that he was not a fit and proper person to be on the Roll of Legal Practitioners.
2. In Re: Selway[65] arose out of a finding in a civil proceeding against a partnership to which Selway belonged. In particular the judge had found that Selway was guilty of fraud. In the subsequent criminal proceedings Selway was acquitted, but was struck off on the basis of the court's finding in the earlier civil case.
3. In several other cases a solicitor has been struck off though the conviction against him had been quashed on some more or less technical ground[66]
4. In R v Southerton[67] a practitioner had been convicted of attempting to extort money by means of a threatening letter. The conviction was set aside on the basis that the threat was not such as to overcome a firm and prudent person. Despite the fact that the conviction had been overturned the Court concluded that the practitioner had been guilty of an 'immoral action' and struck him off.
5. The circumstances in In re Crick[68] were somewhat different. In that matter the report of a Royal Commissioner inquiring into the administration of the Lands Department had charged Crick with corruption. Crick was Minister for Lands, and a solicitor. Two subsequent criminal trials were aborted and no further proceedings taken because the Crown's principal witness died. Crick was struck off on the basis of the Royal Commissioner's report. His Honour A.H. Simpson J said (at 606):

"We have not to consider or pronounce whether the respondent has been guilty of a crime, but whether we are satisfied that his conduct has been such that he ought not to remain on the rolls. After the most careful consideration I can only in this case answer that question in the affirmative."

1. Having regard to each of these three categories of cases involving conduct outside the course of practice it may be said that, generally speaking, two factors form the basis for the disciplinary action in these cases.
2. The first is that the fact of conviction would damage the reputation and standing of the profession in the eyes of the public if the practitioner were allowed to remain in practice[69].
3. The second is that the conduct in question manifests the presence or absence of qualities which are incompatible with, or essential for, legal practice. In this context the legal profession has long required the highest standards of honesty and integrity. In Cummins his Honour Spigelman CJ explained why this is so, at p 284:

"There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people."

1. Illustrations of the circumstances in which practitioners have been subject to disciplinary action for conduct evincing lack of honesty or integrity are:
   • ➢ the failure to lodge tax returns over a 38-year period involved such a failure to observe legal obligations and civic responsibilities by a systematic course of improper conduct over a long period of time, as to constitute professional misconduct (Cummins; cf Hamman)
   • ➢ solicitors convicted of fraud (Carr)
   • ➢ a solicitor convicted of bribing a police officer (Pangallo)
   • ➢ a practitioner convicted of 'conspiracy to defeat the course of justice' (Legal Practitioners' Complaints Committee v Palumbo[70]
2. We now turn to Mr Piva's conduct. Mr Piva lied in the context of a private commercial transaction. But it is not suggested that he has engaged in criminal conduct. Nor did the conduct occur in the context of litigation. His conduct may amount to a civil wrong - it may be said to be misleading or deceptive conduct in the context of the Fair Trading Act 1999 (Vic). But even if that were the case there is no evidence of any loss suffered by Mr Coffey consequent upon Mr Piva's conduct. The fact that Mr Coffey was a former client of Mr Piva is an aggravating factor, and we have taken it into account. But while Mr Piva's conduct was reprehensible we are not persuaded that it amounts to misconduct at common law. On the basis of our overview of the decided cases it seems to us that Mr Piva's conduct is significantly less serious than the type of conduct which has warranted disciplinary action.
3. We find Mr Piva not guilty of charge 3.
4. Having found Mr Piva guilty of one charge of misconduct at common law (ie. charge 1) we will relist this matter shortly to hear submissions on the question of penalty and costs.

[1] Allinson v General Council of Medical Education and Registration [1984] 1 QB 750; Re a Solicitor ex parte The Law Society [1912] KB 302; Myers v Elman [1940] AC 282; Guss v Law Institute of Victoria Ltd [2006] VSCA 88 (21 April 2006)

[2] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 per Dixon J

[3] [1992] HCA 66; (1992) 110 ALR 449 at 449-450, footnotes omitted

[4] Transcript 27 May 2009 p 33 at lines 25 to 34.

[5] Transcript 27 May 2009 p 30 lines 8-40; p 49 lines 41-44

[10] Transcript 27 May 2009 p 36 at lines 23-34

[13] Ibid p 68 line 44 - p 70 line 37

[14] For example, see Transcript of 27 May 2009 p 31 lines 38-46, p 46 lines 35-45

[15] For example, ibid at p 65 lines 30-47

[16] Guss v Law Institute of Victoria [2006] VSCA 88 (21 April 2006) at [39]-[40]

[17] Transcript p 278 lines 26-31 p 279 lines 1-3

[19] [1999] WASCA 115; (1999) 21 WAR 56

[20] [2001] QCA 556 (7 December 2001)

[22] Transcript 27 May 2009 p 67 at lines 30-41

[23] [1957] HCA 46; (1957) 97 CLR 279 at 278

[25] [2003] NSWADT 19 at [53]- [58]

[26] [2001] NSWCA 284; (2001) 52 NSWLR 279 at 288-289

[27] The analysis which follows draws heavily from the judgement of Spigelman CJ in NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at 286-290.

[28] [1894] 1 QB 750 at 763

[29] [1912] 1 KB 302

[30] [1893] 2 QB 439

[31] [1940] AC 282 at 288-289

[32] Re Hodgekiss [1962] SR (NSW) 340 at 351; Re Mayes and the Legal Practitioners Act [1974] 1 NSWLR 19 at 24-25; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 203 and 207

[33] For example, Re Hodgekiss [1962] SR (NSW) 340 at 351; Re Mayes and the Legal Practitioners Act [1974] 1NSWLR 19; and Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279

[34] [2001] NSWCA 284; (2001) 52 NSWLR 279

[35] See generally G.E. Dal Point, Lawyers' Professional Responsibility 3rd Edn, Law Book Co., Sydney 2006 at pp 570-580

[36] A 'serious offence' is defined in s 1.2.1 to include an indictable offence, whether or not it may be dealt with summarily.

[37] A 'tax offence' means an offence under the Taxation Administration Act 1953 (Cth), see s 1.2.1

[38] Prothonotary of the Supreme Court of NSW v Carr [2004] NSWCA 2

[39] Re a Practitioner (1997) 95 A CrimR 467 (FC (SCWA)

[40] Prothonotary v Pangallo (1993) 67 A CrimR 77

[41] [2004] WASCA 283

[42] For example, Law Society of South Australia v Rodda [2002] SASC 274; (2002) 83 SASR 541; Barristers' Board v Pratt [2002] QCA 532; Law Society of South Australia v Liddy [2003] SASC 379. Contra: A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253

[43] [1993] NSWCA 404 Cf: NSW Bar Association v Somosi [2001] NSWCA 285

[44] [1957] HCA 46; (1957) 97 CLR 279

[45] See Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320

[46] See re a Practitioner [2002] WASCA 93

[47] Rondel v Worsley [1969] 1 AC 191; Saif Ali v Sydney Mitchell & Co [1980] AC 198; Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289; Vernon v Bosley (No 2) [1999] QB 18; Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190 at 193; Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115

[48] [1999] WASCA 115; (1999) 21 WAR 56 at [6]

[49] (1889) 5 TLR 407 (at 408 per Lord Esher MR, with whom Fry and Lopes LJJ agreed)

[50] Barristers' Board v Young [2001] QCA 556 at [42] per Mackenzie J

[51] [2002] NSWCA 62 at [101]

[52] Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; see generally Ipp DA, 'Lawyers Duties to the Court' (1998) 114 Law Quarterly Review 63

[53] Barristers' Board v Young [2001] QCA 556 at [15] per de Jersey CJ_,_ with whom Davies and McKenzie JJ concurred

[54] Unreported NSWCA per Kirby P, Samuels and McHugh JJ, 23 August 1988

[56] (1962) 80 WN (NSW) 968

[57] [2000] NSWCA 13 (29 February 2000)

[59] [1993] FCA 527; (1993) 43 FCR 148

[60] Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502

[61] (1991) 28 FCR 21

[62] (1993) 116 ACTR per Miles CJ and Gallop J, Higgins J dissenting

[63] Chamberlain v Law Society of the Australian Capital Territory per Black CJ, Lockhart J, Whitlam J and Beazley J, Jenkinson J dissenting

[64] [2001] NSWCA 284; (2001) 52 NSWLR 279 at 284. Also see New South Wales Bar Association v Hamman [1999] NSWCA 404; and New South Wales Bar Association v Somosi (2001) 48 ATR 562

[65] (1894) 15 NSWLR 147

[66] R v Southerton [1805] EngR 50; 6 East 126; Re King 8 QB 129

[67] [1805] EngR 50; 6 East 126

[68] [1907] NSWStRp 78; (1907) 7 NSW SR 576

[69] Eg. Rodda [2002] SASC 274; (2002) 83 SASR 541 at [25] per Doyle CJ, Williams and Besanko JJ delivering concurring judgements; Hamman at [87]; New South Wales Bar Association v Bryson [2003] NSWADT 19 at [69]; Prothonotory of the Supreme Court of NSW v Pangallo (1993) 67 A Crim R 77

[70] [2005] WASC 129