(a) his conviction on 7 September 2004 of a tax offence for failing to lodge an income tax return for the financial year ended 30 June 2001;

(b) him becoming an insolvent under administration pursuant to an insolvency agreement under Part X of the Bankruptcy Act 1966 (Cth), namely:

1. his failure to disclose on time income he earned in professional practice as a barrister for financial years 1 July 1996 to 30 June 2004;
2. his failure to make provision for and to pay on time income tax on income he earned in professional practice as a barrister for financial years 1 July 1996 to 30 June 2005;
3. his failure to make provision for and to pay provisional tax in respect of financial years 1 July 1998 to 30 June 2000; and
4. his failure to disclose, to make provision for and to pay GST on payments he received from 1 July 2000 to 30 June 2005 in professional practice as a barrister.

Further and alternative to charge 1, professional misconduct as defined at common law for engaging in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable namely his conduct which led to:

(a) his conviction on 7 September 2004 of a tax offence for failing to lodge an income tax return for the financial year ended 30 June 2001;

(b) him becoming an insolvent under administration pursuant to an insolvency agreement under Part X of the Bankruptcy Act 1966 (Cth), namely:

1. his failure to disclose on time income he earned in professional practice as a barrister for financial years 1 July 1996 to 30 June 2004,
2. his failure to make provision for and to pay on time income tax on income he earned in professional practice as a barrister for financial years 1 July 1996 to 30 June 2005;
3. his failure to make provision for and to pay provisional tax in respect of financial years 1 July 1998 to 30 June 2000; and
4. his failure to disclose, to make provision for and to pay GST on payments he received from 1 July 2000 to 30 June 2005 in professional practice as a barrister.

Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act for engaging in conduct that justifies a finding that the Respondent is not a fit and proper person to engage in legal practice namely his conduct in falsely and misleadingly stating to the Victorian Bar Inc in the context of disclosing a show cause event that he had diligently attended to lodgement of returns since 2005 when in fact he knew, and it was the case, that:

(a) he had failed to lodge BAS returns on time for the quarters 30 June 2006, 30 September 2006, 31 December 2006 and 31 March 2007; and

(b) the Australian Taxation Office had issued him with penalty notices for his late lodgement of BAS for each of these quarters.

Further and alternative to charge 3, professional misconduct as defined at common law for engaging in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable namely his conduct in falsely and misleadingly stating to the Victorian Bar Inc in the context of disclosing a show cause event that he had diligently attended to lodgement of returns since 2005 when in fact he knew, and it was the case, that:

(a) he had failed to lodge BAS returns on time for the quarters 30 June 2006, 30 September 2006, 31 December 2006 and 31 March 2007; and

(b) the Australian Taxation Office had issued him with penalty notices for his late lodgement of BAS for each of these quarters.

1. At the commencement of the Hearing, Applicant's Counsel indicated that the Application now proceeded on the basis that the Respondent pleads guilty to charge 1 of the Application. In so doing, he admits that he has engaged in professional misconduct within the meaning of s 4.4.3(1)(b) of the Act for engaging in conduct that justifies a finding that he was not a fit and proper person to engage in legal practice being his conduct, the particulars of which are set out in charge 1 above.
2. The Respondent further admits, and the Applicant accepts, that his conduct, the subject of charge 3, constitutes unsatisfactory professional conduct. Despite paragraph 5 of his Notice of Admissions filed 15 August 2011, by his admission the Respondent must be taken to now admit that he falsely and misleadingly stated to the Victorian Bar Inc, in the context of disclosing a show cause event, that he had diligently attended to lodgement of returns since 2005 when in fact he knew, and it was the case, that:
   • (a) he had failed to lodge business activity statement returns ('BAS') on time for the quarters 30 June 2006, 30 September 2006, 31 December 2006 and 31 March 2007; and
   • (b) the Australian Taxation Office ('ATO') had issued him with penalty notices for his late lodgement of BAS for each of these quarters.
3. The Applicant accepts that this conduct may be properly characterised as unsatisfactory professional conduct rather than professional misconduct, because the letter which contained the statement also included the Notices of Penalty for late lodgement which showed that the statement was false and misleading.
4. In light of these guilty pleas, the Applicant withdrew the remaining [alternative] charges 2 and 4.
5. Accordingly, the sole issue for the Tribunal to determine is what orders should be made.

1. The Respondent has been admitted as a barrister and solicitor of the Supreme Court of Victoria since 3 June 1991. Since 28 November 1991, he practised solely as a barrister and earned and received income from such practice.
2. The Respondent is and was at all relevant times on and after 12 December 2005 an Australian legal practitioner within the meaning of s 1.2.3(a) of the Legal Profession Act 2004 (Vic) ('the Act').
3. For each of the financial years 1 July 1996 to 30 June 2005, the Respondent was legally obliged to lodge on time with the ATO, income tax returns that disclosed income he had earned for legal services he had provided in professional practice as a barrister.[4]
4. In each of the quarters from 1 July 2000, the Respondent was legally obliged to lodge with the ATO, BAS that disclosed payments he had received.
5. The Respondent did not discharge until, at the earliest, June 2005 his legal obligations to lodge on time income tax returns with the ATO, which disclosed the income he earned in the financial years 1 July 1996 to 30 June 2004.
6. The Respondent did not discharge his legal obligations to lodge on time BAS for each of the quarters from 1 July 2000 to 30 June 2005, which if lodged would have disclosed the income he earned.
7. On 7 September 2004 the Respondent was convicted of an offence pursuant to s 8C(1)(a) of the Tax Administration Act 1953 (Cth) for failing to lodge by 1 April 2003 an income tax return for the financial year ending 30 June 2001. The offence:
   • (a) is a tax offence within the meaning of s 1.2.1. of the Act; and
   • (b) arose from the Respondent's failure to discharge his legal obligation to lodge with the ATO his income tax return for the financial year ending 30 June 2001 on time.
8. Upon the Respondent lodging income tax returns, the ATO assessed that he owed the following amounts of income and provisional tax:

1. The Respondent made no or no adequate provision for payment of income tax on income he earned for the financial years 1 July 1996 to 30 June 2005; and had not, as at 28 August 2006, discharged his legal obligations to pay income tax owing on income that he earned for the financial years 1 July 1996 to 30 June 2005.
2. Since 28 August 2006, the Respondent has partly but not fully discharged his legal obligations to pay income tax and associated interest, costs and penalties on income that he earned for the financial years 1 July 1996 to 30 June 2005.
3. The Respondent made no or no adequate provision for payment of his provisional tax liability in respect of the financial years 1 July 1998 to 30 June 2000; and had not, as at 28 August 2006, discharged his legal obligations to pay his provisional tax liability for the financial years 1 July 1998 to 30 June 2000.
4. Since 28 August 2006, the Respondent has partly but not fully discharged his legal obligations to pay his provisional tax liability - and associated interest, costs and penalties - for the financial years 1 July 1998 to 30 June 2000.
5. The Respondent made no or no adequate provision for payment of the goods and services tax ('GST') on payments he had received in each of the quarters from 1 July 2000 to 30 June 2005.
6. The Respondent had not, as at 28 August 2006, discharged his legal obligations to pay amounts which the ATO has assessed as GST owing for the quarters from 1 July 2000 to 30 June 2005 on payments he received.
7. Since 28 August 2006, the Respondent has partly but not fully discharged his legal obligations to pay GST owing for the quarters from 1 July 2000 to 30 June 2005 and associated costs and penalties on income that he earned for the quarters from 1 July 2000 to 30 June 2005.
8. On 20 October 2005, the Deputy Commissioner of Taxation ('DCT') commenced a proceeding in the Supreme Court of Victoria against the Respondent which sought to recover from him $518,155.26 plus interest and costs consisting of money for the following:
   • (a) income tax that he owed for the financial years 1 July 1996 to 30 June 2004;
   • (b) provisional tax liability in respect of the financial years 1 July 1998 to 30 June 2000;
   • (c) GST that he owed for consecutive quarters after 1 July 2000;
   • (d) interest on outstanding income tax, provisional tax and GST; and
   • (e) penalties imposed by the ATO.
9. The debts to the DCT referred to above, solely or predominantly resulted from the Respondent's failure:
   • (a) to disclose on time, to make provision for and to pay income tax on income he earned for the financial years 1 July 1996 to 30 June 2004;
   • (b) to make provision for and to pay provisional tax in respect of the financial years 1 July 1998 to 30 June 2000; and
   • (c) to disclose on time, to make provision for and to pay GST on payments he received for consecutive quarters from 1 July 2000 in his practice as a barrister.
10. On 4 April 2006, default judgment was entered in the Supreme Court of Victoria proceeding against the Respondent with an order that the Respondent pay the DCT $488,155.18 plus interest of $22,053.68 and $1,043.10 costs.[5]
11. On or about 15 August 2006, the Respondent entered into an arrangement for payment by instalments of his debt to the DCT. However, the Respondent did not comply with this arrangement and it was terminated.
12. On 4 March 2008, the Respondent made a Statement of Affairs[6] in which he declared that:
    • (a) he was insolvent;
    • (b) he owed his creditors about $743,812 with $713,812 owed to the ATO; and
    • (c) he believed the main cause of his insolvency was 'gambling, speculation and extravagance in living'.
13. On about 4 March 2008, the Respondent signed a declaration pursuant to s 188 of the Bankruptcy Act 1966 (Cth) which, as of 5 March 2008, appointed Mr David James Lofthouse as his Controlling Trustee.[7]
14. The sole or predominant cause of the Respondent becoming an insolvent under administration was his conduct in failing:
    • (a) to disclose on time income he earned in professional practice as a barrister for the financial years 1 July 1996 to 30 June 2004;
    • (b) to make provision for and to pay income tax on income he earned in professional practice as a barrister for the financial years 1 July 1996 to 30 June 2005;
    • (c) to make provision for and to pay provisional tax in respect of the financial years 1 July 1998 to 30 June 2000; and
      • (d) to disclose on time, to make provision for and to pay GST on payments he received for the quarters from 1 July 2000 to 30 June 2005 in professional practice as a barrister.
15. The Respondent was required by Rule 197 of the Practice Rules (Rules of Conduct) of the Victorian Bar Inc to inform the Ethics Committee of the Victorian Bar Inc ('the Ethics Committee') that he had entered into an insolvency agreement pursuant to Part X of the Bankruptcy Act and to make the disclosure required by Rule 197(b).
16. By letter dated 11 March 2008, the Respondent disclosed to the Ethics Committee the fact that he had become an insolvent under administration.[8]
17. By letter dated 20 March 2008, the Ethics Committee requested further information from the Respondent including a full explanation about the circumstances leading to the subject matter of his disclosure; further details about his debt to the DCT; and to make a statement on whether he was suitable to engage in legal practice.[9]
    1. By letter dated 10 April 2008, Mr Rod Randall, a barrister who was acting for the Respondent, forwarded to the Victorian Bar Inc a disclosure pursuant to Rule 197(b) made by the Respondent and dated 10 April 2008. In the disclosure, the Respondent set out the circumstances which led to him becoming an insolvent under administration.[10]
    2. The disclosure by the Respondent included the claim that he had:

...diligently attended to the lodgement of returns since 2005.[11]

1. The Respondent's claim in his disclosure, that he had diligently attended to the lodgement of returns since 2005, was false and misleading by reason that when he made the disclosure he knew, and it was the case, that:
   • (a) he had been obliged to lodge his BAS for the quarter ending 30 June 2006 on 25 August 2006 but he had not lodged it until 10 October 2006 and, consequently, the ATO had issued him a penalty notice dated 17 October 2006 for his failure to lodge his BAS on time and fined him $220;[12]
   • (b) he had been obliged to lodge his BAS for the quarter ending 30 September 2006 on 13 November 2006 but he did not lodge it until 28 March 2007 and, consequently, the ATO had issued him a penalty notice dated 12 April 2007 for his failure to lodge his BAS on time and fined him $550;[13]
   • (c) he had been obliged to lodge his BAS for the quarter ending 31 December 2006 on 28 February 2007 but he did not lodge it until 28 March 2007 and, consequently, the ATO had issued him a penalty notice dated 13 April 2007 for his failure to lodge his BAS on time and fined him $110;[14] and
   • (d) he had been obliged to lodge his BAS for the quarter ending 31 March 2007 on 14 May 2007 but he did not lodge it until 29 June 2007 and, consequently, the ATO had issued him a penalty notice dated 9 July 2007 for his failure to lodge his BAS on time and fined him $220.[15]
2. On 2 May 2008, the Respondent entered into a personal insolvency agreement pursuant to Part X of the Bankruptcy Act 1966 (Cth) and became an insolvent under administration ('PIA1').[16]
3. On 30 September 2008, the PIA1 was terminated as the Respondent had not complied with the scheduled payments.
4. On 2 September 2009, the Respondent entered into a further personal insolvency agreement pursuant to Part X of the Bankruptcy Act 1966 (Cth) ('PIA2').
5. The Respondent, by letter dated 9 September 2009, notified the Victorian Bar Inc that he had entered into the PIA2 pursuant to Part X of the Bankruptcy Act 1966 (Cth).[17]

1. In about August 2008, the Applicant commenced an investigation of the Respondent pursuant to s 4.4.8 of the Act in respect of his conduct:
   • (a) that led to his conviction on 7 September 2004 of a tax offence for failing to lodge an income tax return for the financial year ended 30 June 2001; and
   • (b) which had led to him becoming an insolvent under administration pursuant to an insolvency agreement under Part X of the Bankruptcy Act 1966 (Cth).
2. By letter dated 6 August 2008, to the Respondent,[18] the Applicant, pursuant to s 4.4.11(1) of the Act, requested that the Respondent provide a full written explanation of his conduct within 16 days.[19]
3. By 3 September 2008 the Respondent had not responded to the Applicant's letter dated 6 August 2008.
4. By letter dated 3 September 2008, to the Respondent, the Applicant expressed concern that no reply had been received in response to the letter dated 6 August 2008 and restated the request for a full written explanation of the Respondent's conduct within 16 days.[20]
5. By 15 October 2008, the Respondent had not responded to the Applicant's letters dated 6 August 2008 and 3 September 2008.
6. By letter dated 15 October 2008, the Applicant offered the Respondent the opportunity to make, within 16 days, any further submission he wished before a decision was made under s 4.4.13 of the Act.[21]
7. By 23 December 2008, the Respondent had not responded to the Applicant's letters dated 6 August 2008, 3 September 2008 and 15 October 2008.
8. The Applicant sent the Respondent a letter dated 23 December 2008, which enclosed a further copy of the Applicant's letter dated 15 October 2008 and afforded the Respondent the opportunity to make a submission by 26 January 2009.[22]
9. By 28 August 2009, the Respondent had not replied to the Applicant's letters dated 6 August 2008, 3 September 2008, 15 October 2008 and 23 December 2008.
10. By letter dated 28 August 2009,[23] the Applicant made a further request for five categories of information and documents from the Respondent pursuant to s 4.4.11(1)(b) of the Act, which included:
    • (a) category 1: a request for information on the apparent inconsistency between his claim in paragraph 29(n) of his disclosure to the Victorian Bar Inc of 10 April 2008 that he had 'diligently attended to the lodgement of returns since 2005' and the fact that the ATO had issued him penalty notices dated 17 October 2006, 12 April 2007, 13 April 2007 and 9 July 2007 for failing to lodge BAS on time;
    • (b) category 2: a request for information as to what quarters he had had a GST liability but had failed to lodge a BAS on time or to make any provision for payment of GST; and
    • (c) category 3: a request for information about each quarter in which he had failed to lodge a BAS on time, as to what his assessed GST was for that quarter and what penalties and interest were imposed for the failure.
11. On 17 November 2009, Martin Watts, an employee solicitor at the office of the Applicant, spoke by telephone with the Respondent and asked when he would respond to the Applicant's letter dated 28 August 2009. The Respondent said that he would look at the letter overnight and provide something in response the next day.
12. By 20 November 2009, the Respondent had not responded to the Applicant's letter dated 28 August 2009.
13. The Applicant, by letter dated 20 November 2009, sent the Respondent a further copy of his letter dated 28 August 2009 and provided him with a further 16 days to provide the information and documents requested by his letter dated 28 August 2009.[24]
14. By 13 January 2010, the Respondent had not replied to the Applicant's letters dated 28 August 2009 and 20 November 2009.
15. By letter dated 13 January 2010, the Applicant sent the Respondent further copies of his letters dated 28 August 2009 and 20 November 2009 and advised him that unless he provided the information and documents requested by his letter dated 28 August 2009 that an application would be made to the Tribunal.[25]
16. By letter dated 19 January 2009,[26] but received by the Applicant on 19 January 2010, the Respondent replied in part to the requests made by the Applicant in his letter dated 28 August 2009 including:
    • (a) in respect of categories 1 and 2: his claim that he had diligently attended to the filing of returns since 2005, did not mean that he had lodged each BAS on time, as he had in fact lodged his BAS for the quarters ending June 2006, September 2006, December 2006 and March 2007 late; and
    • (b) he would provide the information relating to categories 2 and 3 in the Applicant's letter dated 28 August 2009, by 4 February 2010.
17. By 28 May 2010, the Respondent had not provided the information relating to categories 2 and 3 as requested by the Applicant's letter dated 28 August 2009.
18. By letter dated 28 May 2010,[27] the Applicant made a further request of the Respondent for documents and information pursuant to s 4.4.11(1)(b) of the Act to be provided within 16 days of the date of the letter including for:
    • (a) the information requested in items 2 and 3 of the Applicant's letter dated 28 August 2009, which had still not been provided;
    • (b) whether the Respondent had lodged on time his BAS for the quarters from June 2007 to March 2010 and if not how late they had been lodged;
    • (c) copies of any penalty notices issued by the ATO to him since 9 July 2007 for failing to lodge his BAS on time;
    • (d) his disclosures to the Legal Services Board in 2008 and 2009;
    • (e) his BAS lodged with the ATO for the quarters from June 2007 to March 2010;
    • (f) his income tax returns for the financial years ending 30 June 2008 and 30 June 2009;
    • (g) any correspondence between the ATO and him or any person acting on his behalf since March 2007; and
    • (h) any penalty notices issued by the ATO to him since 9 July 2007 other than for failing to lodge his BAS on time.
19. On 16 June 2010, Martin Watts spoke by telephone with the Respondent including about the following:
    • (a) Mr Watts asked the Respondent where his reply was to the Applicant's letter dated 28 May 2010, part of which related to requests first made by letter dated 28 August 2009;
    • (b) the Respondent said that he had only received the Applicant's letter dated 28 May 2010, about two weeks ago and that he was seeking help with a reply;
    • (c) the Respondent said that he was aiming to reply to the Applicant's letter dated 28 May 2010, by 21 June 2010.
20. By 6 July 2010, the Respondent had not provided a further reply to the Applicant's letter dated 28 August 2009, nor any reply to the Applicant's letter dated 28 May 2010.
21. By letter dated 6 July 2010, the Applicant sought from the Respondent by 5 pm on 8 July 2010, the outstanding information and documentation he had requested by letter dated 28 August 2009 and by letter dated 28 May 2010.[28]
22. The Respondent sent the Applicant a letter dated 8 July 2010,[29] in which it was stated that:
    • (a) he had failed to lodge BAS on time for the quarters ending 31 March 2005, 30 June 2005, 30 June 2006, 30 September 2006, 31 December 2006 and 31 March 2007 and that the ATO had imposed penalties on him for his failure to lodge each of these BAS on time; and
    • (b) he refused to provide the information and documents requested by the Applicant in paragraphs 2(a) and (b), 3(b), (c) and (d), and 4 of his letter dated 28 May 2010.
23. By letter dated 22 July 2010, the Applicant sought a further response from the Respondent to his letters dated 28 August 2009, 20 November 2009, 13 January 2010, 4 February 2010, 28 May 2010 and 6 July 2010.[30]
24. The Respondent had not, as at the date of filing the Application with the Tribunal, replied to the Applicant's letter dated 22 July 2010; and therefore the requests made by the Applicant by letters dated 28 August 2009, and 28 May 2010 remain outstanding.
25. On about 18 August 2010, the Applicant received from the Victorian Bar Inc a copy of the disclosure made by the Respondent to the Victorian Bar Inc by letter dated 9 September 2009.[31]
26. On 20 December 2010, the Applicant delivered to the Respondent's clerk a letter dated 20 December 2010 offering him the opportunity to provide any further submission he wished, about the conduct the subject of investigation, by 24 January 2011 before a decision was made under s 4.4.13 of the Act.[32]
27. By 27 January 2011, the Respondent had not replied to the Applicant's letter dated 20 December 2010.
28. On 27 January 2011, Shelley Lipe, an employee solicitor at the office of the Applicant, telephoned the Respondent. She left a message on his mobile telephone service that if he did not reply to the Applicant's letter of 20 December 2010, the Applicant would proceed to the next step (referring to the making of a decision under s 4.4.13 of the Act).
29. On Friday 28 January 2011, the Respondent left a telephone message for Shelley Lipe in which he said he had been away and had not seen the Applicant's letter of 20 December 2010 until 15 or 16 January 2011; that he wanted to respond but needed time to instruct solicitors or counsel; and that he would telephone again.
30. By 1 February 2011, the Applicant had not received any telephone call from the Respondent.
31. On 1 February 2011, Martin Watts telephoned the Respondent and left a message on his mobile telephone service in which Mr Watts said that the time for him to respond to the Applicant's letter of 20 December 2010 had been extended until 9 February 2011.
32. By letter dated 3 February 2011, the Applicant confirmed that the time for the Respondent to reply to his letter of 20 December 2010 had been extended to 9 February 2011.[33]
33. As at the date of filing the Application with the Tribunal, the Applicant had not received any response by the Respondent to the Applicant's letter dated 20 December 2010.

1. By Notice to Admit Facts and Authenticity of Documents dated 5 July 2011, the Applicant sought admissions from the Respondent in relation to the facts and documents referred to in the Application.
2. By Notice of Admissions dated 15 August 2011, the Respondent admitted all paragraphs in the Application, save for the following provisos and denials:
   • (a) In relation to paragraphs 12 to 20:

the Respondent has made substantial payments toward the discharge of outstanding income tax, provisional tax, GST, interest, costs and penalties pursuant to the Personal Insolvency Agreements entered into on 2 May 2008 and 2 September 2009...

the Respondent made disclosure of his failure to lodge Business Activity Statements by providing copies of [the ATO's Notices of Penalty dated 17 October 2006; 12 April 2007; 13 April 2007; and 9 July 2007;] with his disclosure forwarded to the Victorian Bar Inc on 10 April 2008...

The Respondent denies paragraph 62 and says that the Business Activity Statements referred to in paragraphs 43, 48, 53, and 58 were disclosed and produced to the Victorian Bar Inc with the Respondent's letter dated 10 April 2008.

The Respondent admits that on 30 September 2008 The Personal Insolvency Agreement referred to in paragraph 31 was terminated but otherwise does not admit paragraph 63.

1. Amended charge 3 is defined in s 4.4.2 of the Act as follows:

4.4.2 Unsatisfactory professional conduct[34]

unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

1. Charge 1 is defined in s 4.4.3(1) of the Act as follows:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

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

1. Since the definition is inclusive, it does not supersede the common law definition of professional misconduct.[35]
   1. In Myers v Elman[36] Viscount Maugham affirmed that a solicitor could be struck off the rolls or suspended on the ground of 'professional misconduct', words which he found:

...have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency [emphasis added].[37]

1. The approach taken in Myers v Elman has been followed in Victoria.[38]
2. In Re a Solicitor[39] Dean J held that 'misconduct' 'in a professional capacity' under s 15 of the Legal Profession Practice Act 1958 (Vic) bore the same meaning as described by the House of Lords in Myers v Elman in respect of 'professional misconduct'.
3. A further version of the test was enunciated by Mandie J in Campbell v The Dental Board of Victoria[40] who followed the formulation of the Queensland Full Court in Adamson v Queensland Law Society Inc:[41]

The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.

1. Professional misconduct as defined by sub-section (b) incorporates the concept of a practitioner being fit and proper to practise. Under the Act, fitness to practise is a pre-requisite for admission to legal practice[42] and for the grant of a practising certificate.[43] It is also a precondition of continued legal practice, so that its absence can lead to a refusal to renew a practising certificate[44] or the cancellation, amendment or suspension of a practising certificate.[45] Further, the Supreme Court of Victoria has inherent jurisdiction to remove a practitioner's name from the roll of persons admitted to practice for a lack of a fitness to practise.
2. Whether conduct constitutes professional misconduct within the meaning of sub-section (b), should be determined by looking at whether at the time of the conduct the legal practitioner was a fit and proper person to practise, without regard to any subsequent reformative or rehabilitative conduct. Any such subsequent conduct should be taken into account only on the question of penalty.[46]

Failure to meet taxation obligations can be professional misconduct

1. The recent decisions in LSC v Moore[48] and LSC v Long,[49] appear to be the first authorities in Victoria which specifically address when a failure to comply with taxation obligations will constitute professional misconduct. There are many authorities in other jurisdictions, most notably NSW, which have considered when failure to comply with taxation obligations may constitute professional misconduct; and whether the appropriate sanction was cancellation or suspension of practising certificate. The Tribunal recognises that these cases are directly relevant so far as they are based on common law definitions of professional misconduct and the inherent jurisdiction of superior courts to remove legal practitioners from the roll.[50]
2. The most extensive line of authority is a series of cases in the NSW Court of Appeal and NSW Administrative Tribunal in recent years. In most of those cases, at least in the Court of Appeal, the primary inquiry was whether the failure to meet taxation obligations justified removal of a legal practitioner's name from the roll of legal practitioners.
3. In New South Wales Bar Association v Hamman,[51] the respondent barrister had been convicted of indictable offences of imposition on the Commonwealth and sentenced to 14 months imprisonment to be served by periodic detention. By a majority judgment the NSW Court of Appeal struck the barrister's name from the roll.[52] He had admitted professional misconduct in dishonestly understating his taxable income over 3 years.
4. While it is not alleged that the Respondent understated his income in the current case, the decision is instructive in its analysis of the relevance of taxation offences to fitness to practise. Mason P stated:

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[53]

1. His Honour cited Sheller JA in the barrister's prior appeal on sentence who had held:

[t]he Australian system of tax collection depends upon the honesty of taxpayers and, in particular, upon their fully declaring in each year of income what their gross income is. In a free society, such as Australia, the tax collector cannot check that every taxpayer has done so.

...the proven misconduct and conviction establish unfitness to practice. There was significant and prolonged dishonesty for personal gain.[54]

1. At the same time the court acknowledged that the barrister, who also gave evidence:

...response to detection, conviction and sentence has been creditable and it demonstrates genuine contrition.[55]

1. In addressing the issue of whether strike off or suspension was warranted in Hamman's case, Mason P endorsed the remarks of King CJ In Re a Practitioner:[56]

The proper use of suspension is....for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner.[57]

1. In the Tribunal's view, Hamman's case reinforces the primary obligation which is embodied in paragraph (b) of the statutory definition, which extends beyond the requisite level of competence and diligence expected in the performance of the practitioner's legal practice. The collection of tax revenue is ultimately for the benefit of the public. High standards are expected of a practitioner in complying with the law generally, but particularly where, as in the case of obligations under taxation law, compliance and enforcement depends upon the honesty and integrity of the taxpayer.
2. In New South Wales Bar Association v Cummins,[58] the barrister in fact consented to have his name removed from the Bar Roll and the only issues before the court were the appropriate declarations. The court declared that he was guilty of professional misconduct and not a fit and proper person to be on the Roll of Legal Practitioners.
3. Cummins had failed to lodge a tax return during his 38 year practice as a barrister at the New South Wales Bar. Although this period of non-compliance is clearly much longer than the present case, Spigelman CJ, identified the relevant public interest factors:[59]

There are four interrelating interests involved. Clients must feel secure in confiding their secrets and in trusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and 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. The Court further held that a failure to lodge taxation returns which should have disclosed income earned in professional practice was:

...an inexcusable pattern of illegal conduct in complete defiance of his civic responsibilities. Mr. Cummins put no evidence before the Court which could explain, let alone excuse, this conduct. 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.[60]

...the conduct of a barrister, particularly a barrister who has received the distinction of a Commission as one of Her Majesty's Counsel, who has behaved in such complete disregard of his legal and civic obligations, was necessarily such as to bring the entire legal profession into disrepute.[61]

1. In the Tribunal's view, the Respondent's conduct has clearly undermined 'the interest of the public in having confidence in the legal profession by reason of the central role the profession plays in the administration of justice.' The comments quoted above in the Cummins case have equal application in this case.
2. The Court in Cummins case also had to consider whether a failure to comply with taxation obligations could constitute professional misconduct, as opposed to personal misconduct, although the filing of tax returns did not directly relate to professional practice. It held that conduct not directly related to practice could constitute professional misconduct in two ways:

First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, 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'.[62]

The preparation and filing of tax returns is closely related to the earning of income, including professional income. The link is 'sufficiently close' to justify a finding of professional misconduct on the basis of Mr Cummins' failure to lodge returns for thirty-eight years.

Similarly, and alternatively, the extent of Mr Cummins' failure to observe his legal obligations and civic responsibilities by such a systematic course of improper conduct over such a long period of time is of such gravity as to constitute professional misconduct, for the reasons I have mentioned above in relation to fitness.

1. The impropriety in failing to lodge tax returns is that it conceals the barrister's existence and income from taxation authorities. Thus it can represent more serious professional misconduct than lodging tax returns but not paying tax owing.[64]
2. The principles identified in Cummins' case have been held to be applicable to a legal practitioner who has not met their taxation obligations for lesser periods. For example:
3. In NSW Bar Association v Somosi,[65] the barrister failed to lodge income tax returns or pay tax for 17 years. The NSW Court of Appeal accepted that he would have been unable to fulfil his taxation obligations at times because of personal and emotional upheaval and poor health, but held this could not explain his failure to fulfil his taxation obligations over such a long period, nor displace the natural inference that he had deliberately and intentionally avoided tax.[66]
4. The Tribunal notes that in the present case, there was no evidence that the Respondent suffered any personal or emotional upheaval or poor health during the relevant period of non-compliance.
5. Somosi did not oppose the court making a declaration that he was not a fit and proper person to remain on the Bar Roll. The court also declared that he was guilty of professional misconduct, rejecting the argument that the scope of professional misconduct should be confined to conduct in the course of practice.
6. Echoing the holding in Cummins' case,[67] the Court described the barrister's failure as follows:

Mr. Somosi acted in complete disregard of his legal and civic obligations. He took full advantage of public services made available by taxation, not least the provision of the court system in which he earned his income. He left the burden of all this to his fellow citizens. Furthermore, for a period of almost two decades he engaged in...the hypocrisy of putting himself in a position, as a legal practitioner, in which he advocated that other people should perform their legal obligations, whilst systemically failing to perform his own.[68]

1. In Somosi's case, the court also indentified three areas of that barrister's conduct which have a parallel in the current case:
   • (a) First, the court noted that in his affidavits read in the proceeding, Somosi failed to explain why he had failed to comply with his obligations as a citizen to file income tax returns; and also failed to explain why he continued not to do so in subsequent years.[69]
   • (b) Secondly, the court noted that:

Mr Somosi'd efforts to regularise his affairs with the ATO were not pursued with any degree of diligence on his part and his side arrangement was only performed after considerable delay.[70]

(c) Thirdly, the court clarified the purpose of these kinds of proceedings:

These proceedings are not concerned to protect the revenue. These proceedings are concerned with what Mr Somosi's default reveals about his character and fitness...the jurisdiction which this court is exercising is a protective jurisdiction. It is not directed at punishment. It is not concerned with revenue collection...[71]

...in this case it is the conduct itself that is entitled to such weight, not the fact that in an indirect manner that conduct has manifested itself in a particular conviction with a particular penalty.[72]

1. In the Tribunal's view, the conduct of the Respondent in this case, subsequent to his failure to comply with his taxation obligations, was more reprehensible than the corresponding conduct described in Somosi's case. In particular:
   • (a) The Respondent failed to respond to any of the written requests from the DCT seeking information from August 2008 until 8 July 2010, a period of nearly 2 years;
   • (b) In his e-mail response dated 8 July 2010, the Respondent provided limited information and disputed the right of the Applicant to seek other information requested;
   • (c) The objection raised by the Respondent to supplying further information was clearly wrong and despite further written and telephone requests, the Respondent had still failed to provide any further information to the date when the Application with the Tribunal was filed on 21 March 2011;
   • (d) The Respondent placed no direct evidence before the Tribunal, electing not to give evidence himself and therefore avoiding cross-examination upon many areas about which there is little or no information;
   • (e) The DCT obtained default judgment in the Supreme Court on 4 April 2006 for the outstanding tax debt, referable to the Respondent's tax liability which arose during the period 1996 to 2005. However, on the information provided to the Tribunal, repayments in satisfaction of this debt appear to have totalled $120,000 for the 2006-2007 calendar years, and payments under the PIA1 did not commence until July 2008;[73]
   • (f) The Respondent failed to comply with the terms of the PIA1 [as he had evidently failed to comply with an earlier arrangement with the DCT to repay instalments]; and did not enter into a further PIA2 until September 2009;
   • (g) While the Respondent is now making repayments in accordance with the PIA2, he has accumulated a current unpaid tax liability of about $288,000; and a current unpaid GST liability of about $90,000; and
   • (h) No explanation was forthcoming from the Respondent as to his inability to maintain payments for his current tax and GST obligations or as to what arrangements if any he has made to meet these obligations.
2. In New South Wales Bar Association v Stevens[74] the barrister had not filed tax returns for nearly twenty years. Stevens consented to the court's declarations of professional misconduct and not being a fit and proper person; and was struck off the roll. In his affidavits before the court, Stevens outlined how he had voluntarily engaged accountants to get his tax affairs in order but failed to follow this through. He was also 'seeking to avoid bankruptcy and pay my tax obligations'.[75]
3. In relation to his personal referees the court noted that four practising barristers:

... speak in unqualified terms of [Stevens] generosity in helping others and his participation in the activities of the New South Wales Bar Association. They also speak of his competence and capacity as a barrister...[He] is held in high regard by these deponents and no doubt by many others... However as pointed out by Meagher JA in Young's case, such evidence is of small assistance when the Court is dealing with a history of default, such as the present, in [Stevens's] obligations to lodge income tax returns and pay taxation.[76]

1. The Tribunal acknowledges, and it was not contended otherwise by the Applicant, that the Respondent presented impressive personal references as to his capacity for hard work, his competence and dedication in his professional capacity as a barrister. Written references were tendered by two current County Court judges,[77] five current practising senior barristers[78] and his clerk at the Bar.[79] In addition, His Honour Judge O'Neill; Dr Lyon SC; Mr Digby QC; and Mr O'Callaghan QC all gave oral evidence on his behalf. His Honour Judge O'Neill and Dr Lyon also spoke of their respective personal friendship with the Respondent and the high regard in which he is held by them and his colleagues.
2. The Tribunal notes that the Respondent was previously charged by the Victorian Bar Inc pursuant to s 151(2) and s 151(3) of the Legal Practice Act 1996 in relation to a complaint dated 18 October 2001. On 1 August 2002 the Respondent was found guilty of unsatisfactory conduct[80] by the Legal Profession Tribunal in relation to two separate contraventions of the Rules of Practice of the Victorian Bar[81] and was ordered to pay an aggregate fine of $1,500 plus costs. No further explanation of this conduct was given to the Tribunal and no reference to such breaches of Rules of Practice was made by any of the referees.
3. In the Tribunal's view, it is appropriate to have regard to such testimonials in the same way as the Court treated similar glowing testimonials in the cases of both Stevens and Young, namely:

Such evidence ...is of small assistance when the Court is dealing with a history of default, such as the present, in [Stevens's] obligations to lodge income tax returns and pay taxation.[82]

1. In the Tribunal's view, the relevance of the personal testimonials weighs more heavily in the context of the capacity of the Respondent to ultimately rehabilitate himself. In particular, in the context of an appropriate sanction, such testimonials weigh in favour of a suspension of the Respondent's license to practice rather than a cancellation of such license and removal of his name from the Bar roll.
2. In NSW Bar Association v Young,[83] the barrister failed to lodge tax returns for 16 years and to pay income tax for 20 years. Meagher JA described his conduct as demonstrating a lack of the integrity that the public has the right to expect from a barrister, even by a practitioner who had otherwise rendered good service. The court accepted that Young was highly regarded by his professional peers, seven of whom provided glowing references. The court acknowledged that the barrister's personal life was marred by two failed marriages and the tragic death of his child. The court also accepted a number of factors in his favour, including: that he displayed generosity and altruism to others; he often provided his services free of charge; he did not indulge in a lavish lifestyle; and did not accumulate assets. The Court declared that he is not a fit and proper person and struck him off the roll.
3. The Tribunal notes that in Young's case the court appeared to give some credit to the fact that the barrister in that case displayed generosity and altruism to others in his professional dealings; did not indulge in a lavish lifestyle; and did not accumulate assets. There were also extenuating circumstances cited in his personal life. By contrast, although virtually no detail was given directly by the Respondent, during the relevant period of non-compliance, he appears to have squandered his earnings, 'living like a millionaire' as he told Ms Matthews, without regard to paying his debts. The Respondent has not otherwise given any account of his conduct during the relevant period of non-compliance.
4. In Davison v Council of NSW Bar Association[84] the barrister failed to lodge tax returns and pay tax for 16 years, having lived an extravagant lifestyle. He had endured marital problems, suicide of a son and failed business ventures. In striking his name off the roll, the NSW Court of Appeal held[85] that those events did not significantly detract from the seriousness of his conduct, with a finding that he had employed a deliberate strategy of avoiding his civic obligations.
5. In Legal Services Commissioner v Hewlett,[86] the solicitor had failed to lodge income tax returns for 11 years [from 1991 to 2001] with substantial tax debts accruing in the last 5 years; he did not pay the debts and this led to him declaring bankruptcy in 2006. The Tribunal noted that while his conduct could be contrasted with the NSW cases, where the period of default was shorter, a failure to lodge tax returns for 11 years was significant. In 2003, he had voluntarily disclosed his failure to lodge returns to the ATO and then lodged the requisite returns. The ATO calculated a total tax liability including penalties and interest of about $620,000. When he failed to negotiate a compromise with the ATO he petitioned for his own bankruptcy. He has complied with these obligations since then and produced good character references showing him to be a good practitioner. He admitted that he had engaged in professional misconduct. The Tribunal[87] ordered that his name be removed from the Roll. It was concerned, as the courts had been in Cummins and Somosi, with the inconsistency and hypocrisy of his conduct in contrast to his obligations as a legal practitioner:

One of the substantial obligations of a legal practitioner is to uphold the law, and to ensure the due application of the law in furthering his or her clients' affairs. The practitioner's capacity and commitment in those regards will be thrown into question where the practitioner is himself or herself guilty of a substantial contravention of the law, knowingly and deliberately, and for his or her own financial advancement.[88]

1. In Legal Services Commissioner v Cain,[89] the legal practitioner had not filed tax returns on time for five years and a BAS for one quarter. As a consequence of this failure, he had been convicted of 6 tax offences. Before the charges had been heard, he had filed the outstanding tax returns and BAS and he undertook to execute a mortgage on his home to pay the outstanding tax of $70,000. He also admitted that his conduct constituted professional misconduct and expressed remorse for his conduct. The Tribunal reprimanded him, restricting his right to practise for 3 years and imposing conditions that he have mentoring and undertake a psychological treatment plan.
2. In the Tribunal's view, Cain's case is instructive as to the degree of diligence undertaken by the barrister in that case to address his non-compliance in a relatively timely manner, filing all outstanding returns and securing his capacity to repay his tax debt. This response stands in marked contrast to the corresponding response of the Respondent in this case.
3. In Legal Services Commissioner v Moore,[90] the barrister had not lodged tax returns, made provision for or paid income tax and had not lodged BAS for over 17 financial years or paid GST for almost 7 years. The barrister admitted this conduct was professional misconduct. The Tribunal noted[91] that normally this conduct would support a finding being made at the date of the hearing that the barrister remained not a fit and proper person for legal practice and this would be likely to continue indefinitely. However, having regard to the material before the Tribunal as to his current personal circumstances, the Tribunal determined that he was now a fit and proper person to engage in legal practice. The Tribunal reprimanded him and fined him the maximum penalty of $50,000.
4. The matters to which the Tribunal had regard included:[92]
   • (a) the fact that Moore had acknowledged the wrongfulness of his conduct since it came to light;
   • (b) he had sought and obtained treatment for his addictions to alcohol and gambling, which are now in remission;
   • (c) the 'great significance' of him having increased his earnings during bankruptcy to maximise the return to his creditors - his conduct having been described by his trustee in bankruptcy as exemplary;
   • (d) his behaviour since being charged with tax offences satisfied the Tribunal that he had acknowledged the importance of meeting his taxation obligations;
   • (e) he had been candid in his dealings with the Victorian Bar and the Legal Services Commissioner; and
   • (f) the numerous character references.
5. In the Tribunal's view, the circumstances described in Moore's case again provide important points of distinction to the conduct of the Respondent in the current case.
6. In Legal Practitioner Complaints Committee v Pillay,[93] the barrister admitted that his failure to lodge income tax returns for 6 years and to pay income tax for about 8 years was unprofessional conduct. In determining penalty, the WA State Administration Tribunal accepted that the barrister had suffered, at least initially, from chronic post-traumatic stress following the death of his child soon after birth. While this provided a partial explanation as to why the initial default had occurred, it did not explain and there was no excuse for the practitioner's continuing default.[94] The Tribunal accepted that the barrister had complied with his tax obligations for an extended period before the death of his son; had not led a lavish lifestyle; and had not deliberately set out to avoid his taxation obligations. Nevertheless, the Tribunal suspended the barrister's practising certificate for one year, stating that it was a penalty justified by reference to the need to maintain professional standards and to protect the public.

Not to suspend the practitioner ... would not be an outcome that would give the public the confidence they are entitled to have, that lawyers they consult scrupulously obeyed the requirements of taxation law in relation to professional income. It would also run the serious risk of watering down professional standards. A reprimand and fine would also be an inadequate outcome.[95]

1. In Long's case,[96] the barrister had failed to lodge tax returns or pay income tax for just over 13 years, and he had not disclosed or paid GST for just over 6 years. At first instance, the Tribunal suspended him for 4 months. The Commissioner applied for a re-hearing of the application, arguing that the penalty was manifestly inadequate. At the re-hearing the Tribunal, his Honour Justice Ross presiding, affirmed the initial decision. His Honour found that there were powerful mitigatory factors which reduced his moral culpability for his offending conduct and justified a lesser period of suspension, namely Long's mental condition and the delay in bringing the proceedings. However, the Tribunal expressly noted that:

...but for the powerful mitigatory factors in this case a disposition of the type sought by the Applicant [namely a 3 to 4 year suspension] would be entirely appropriate.[97]

1. The Tribunal accepted that the circumstances of Long were distinguishable from many cases in that he did not flout the law in the context of a high earning, high living lifestyle.[98] Rather, he suffered depression, did not earn a great deal of money and allowed himself, through disorganisation and lack of foresight, into a spiral of default.[99]
2. Psychological assessment identified an episode of major depression in the early 1990s following which his personal life became somewhat shambolic. Since being declared bankrupt, he has attended to his taxation matters and presents with favourable rehabilitation prospects in the context of developing insight into the need for professional assistance in managing his depressive illness, problems with alcohol and chronically low self-esteem.
3. On the basis of the material before it, the Tribunal found that Long was suffering a mental condition at the time of his defaulting conduct; that there is a causal relationship between his failure to disclose income and lodge tax returns and his ongoing undiagnosed and untreated depression; and that he is remorseful for what he has done and highly unlikely to commit similar acts in future.
4. The Tribunal also found delay to be a significant mitigatory factor. In November 2007 Long informed the Victorian Bar that he was insolvent under administration and the circumstances which gave rise to that situation. The Commissioner began investigating the matter in July 2008 and charges were filed with the Tribunal in December 2010, some 2 ½ years later. The hearing and re-hearing before the tribunal took another 12 months, so that in all, about three years and nine months have elapsed since the Applicant began its investigation until the determination of the re-hearing. While some delay could be attributed to the investigatory process, a significant proportion of that delay was found to be caused by both the Applicant and the Tribunal.
5. In the Tribunal's view, there have been no mitigatory circumstances relied upon in this case, such as a major depressive illness or other psychological disturbance or social disruption, which could in any way have explained or contributed to the Respondent's inability to comply with his tax obligations. Furthermore, for reasons addressed in more detail below, the delay between the commencement of the Applicant's investigation in this case and the ultimate hearing before this Tribunal, occurred in wholly different circumstances to that described in Long's case.
6. In addition, in Long's case, the Tribunal noted:
   • (a) The report of Long's accountant confirming that he has been Long's registered tax agent since 2007 and that since that time Long has complied with his reporting and payment obligations and was not in default in any respect;
   • (b) Long had not been charged with any taxation or other offences arising from his failure to declare income and has now been discharged from his bankruptcy having complied with all of his obligations as a bankrupt;
   • (c) Long had admitted all relevant facts at an early stage and has been candid in his dealings with the Victorian Bar and the Commissioner; and
   • (d) Character references from three Magistrates; two officers of the Department of Human Services and a practising solicitor.
7. Again, the Tribunal notes that in marked contrast to Long's case, the Respondent here, subsequent to the relevant period of non-compliance, has not consistently filed income tax returns or BAS in a timely manner; has not paid his income tax or GST in a timely manner; has been charged and convicted of a taxation offence; did not admit all relevant facts at an early stage; and has not been candid in his dealings with the Victorian Bar, and particularly with the Applicant.
8. The Tribunal accepts the submission of Applicant's Counsel that, in the NSW cases, little or no weight has been placed on whether the legal practitioner has or has not been found guilty of an offence or been made a bankrupt because of the conduct. The significant matter is the conduct itself rather than the fact of conviction or the making of a bankruptcy order.[100] This is consistent with s 4.4.4(d) of the Act which is concerned with the conduct of an Australian legal practitioner as or in becoming an insolvent under administration rather than the fact of bankruptcy.[101]
9. In Wardell v NSW Bar Association[102] the Court considered the situation of a barrister who had become bankrupt on the petition of the ATO, being unable to pay his tax. The barrister had failed to pay tax over approximately 11 years although he had regularly lodged tax returns, albeit some late. He had not committed any offence in relation to the lodgement of tax returns. It was also accepted that he was otherwise a highly respected, successful and competent barrister. Cripps AJ characterised the barrister as:

...a person who was able to pay his debts but who elected instead to spend money, over a long period of time, on what has been described as 'discretionary lifestyle pursuits instead of paying tax'.

1. Cripps AJ accepted the barrister's evidence that he had not made a conscious decision never to pay tax, but held that the barrister had shown such a reckless disregard for his taxation obligation by spending money, knowing that if he did so he would not be able to meet his tax obligations, so as to amount to an intention to avoid them.[103] An intention to evade tax is less likely to be inferred where a barrister has not enjoyed an excessive lifestyle, has used the money to support his children, demonstrated an inability to properly manage his affairs and has breached his tax obligations for a relatively short period.[104] The barrister's practising certificate was cancelled.
2. In the Tribunal's view, the circumstances of the Respondent's non-compliance, over a comparable period, is more grave than that described in Wardell's case. The Respondent in this case also failed to lodge tax returns, thus concealing his existence and income from taxation authorities, and as already acknowledged:

Thus it can represent more serious professional misconduct than lodging tax returns but not paying tax owing.[105]

1. The Respondent's circumstance were otherwise consistent with Wardell's conduct: the Respondent did not point to any legitimate object for his expenditure; the period over which he failed to lodge returns could not be described as 'a relatively short period'; and he gave no evidence about his inability to manage his financial affairs during the relevant period.
2. Personal circumstances which give rise to an intermittent inability to meet taxation obligations are unlikely to excuse fully a prolonged period of not lodging tax returns.[106] However, if the failure to pay tax can be attributed to an event fully or partially beyond the control of the legal practitioner, such as being found liable for huge and wholly unforeseeable debt to some third party, then this may explain and excuse, at least partially, the conduct.[107]
3. The Tribunal notes that no such extenuating circumstances have been placed before the Tribunal in this case.

1. It is evident from the above cases that the failure to file income tax returns and pay tax for an extended period:
   • (a) demonstrates a lack of integrity that the public has a right to expect from a barrister;
   • (b) reflects hypocrisy and inconsistency in purporting to practice in and uphold the law, while at the same time committing serious breaches of the taxation law;
   • (c) constitutes complete defiance of his civic responsibilities, while taking 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;
   • (d) places a taxation burden upon his fellow citizens while he earned a high income;
   • (e) must be evaluated in the context of the underlying reason or motivation for the offending conduct; and
   • (f) is more serious conduct than failing to pay tax when assessed.

1. After hearing an application, if the Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, it may[108] make any orders it thinks fit including, for the purpose of this application, those specified in s 4.4.17 and s 4.4.19.
2. It is recognised that the Tribunal's powers to make any order are primarily protective, although they also serve a punitive function.[109]

1. The Tribunal accepts the submission of Applicant's Counsel that the Respondent's failure to meet his civic and legal tax obligations, while having resources to meet those obligations, shows he was not a fit and proper person for legal practice while he engaged in that conduct. He has admitted this by pleading guilty to charge 1. Accordingly, the focus in this case was upon whether the Respondent, as at the date of the Hearing, had shown that he was now a fit and proper person, notwithstanding his past conduct.
2. In Johns v Law Society of New South Wales,[110] Moffitt P[111] explained how past misconduct showing unfitness to practice relates to the issue of whether a legal practitioner is currently fit for legal practice:

Where there is misconduct prima facie requiring at that time a striking off order on the basis of then unfitness, the substance of the question whether when the matter comes for decision some years later is not dissimilar to the question arising upon an application for re-admission, namely whether it appears that there is material before the court to lead it to conclude that the past proved unfitness has been changed to fitness. The ultimate onus is on the Law Society, but where there is admitted professional misconduct and a claim of rehabilitation or of fitness replacing unfitness, the court will look to what evidence there is to establish this change and will expect he who claims there is such a change to point to the evidence that there is.[112]

1. Johns' case is in keeping with the role and obligation on respondents in disciplinary proceedings more generally.
2. The New South Wales Court of Appeal in Re Veron: Ex parte Law Society of New South Wales[113] considered an application brought pursuant to the jurisdiction of the Court to find the solicitor guilty of professional misconduct and strike him from the roll. The Court was critical of the solicitor's decision not to give evidence to the Court noting:

This course [where the practitioner does not give evidence] ...was irregular. The respondent is an officer of the Court...disciplinary proceedings in this jurisdiction in the state have always been conducted upon affidavit evidence and not otherwise. They are not conducted as if the Law Society ... was a prosecutor in a criminal cause or as if we were engaged upon a trial of civil issue at nisi prius. The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument.[114]

1. The court went on to identify the several ways in which a practitioner may be called upon to show cause, of particular relevance in that case being to meet the situation by a denial or explanation on oath of the truth or the significance of the facts deposed to.

... No denial or explanation was forthcoming, the respondent having sought refuge was available in argument from the Bar table.[115]

1. Equally, in the present case, the Respondent, elected not to give evidence personally. In addition, unlike Veron, he did not resort to argument from the Bar table. Instead, although present in the Tribunal, and taking an active part in the conduct of the proceedings, he has sought to put forward his position indirectly via witnesses called as to character. As outlined above, the Tribunal accepts that the character witnesses gave impressive and consistent evidence as to their personal and professional dealings with the Respondent and his professional capacity.
2. However, certain witnesses also purported to give evidence as to the Respondent's shame and remorse, on the basis of conversations they had had with him. Applicant's Counsel submits and the Tribunal accepts that it was entitled to expect such evidence to come from the Respondent directly, and to be tested by cross-examination. This expectation is all the more reasonable in this case where the current tax affairs of the Respondent, as pieced together by Mr Ferella, is incomplete; and where the Respondent has persisted in his course of failing to lodge information with the ATO as required by law.
3. The issue of a barrister not giving evidence at a disciplinary hearing in a Tribunal was also considered on appeal by the New South Wales Court of Appeal in NSW Bar Association v Meakes.[116] Tobias JA[117] stated:

It is true that in professional disciplinary proceedings the onus of proving misconduct lies with the party bringing the charges and, it should be noted, a practitioner is not required to give evidence. However, as this court observed in Coe v NSW Bar Association [2000] NSWCA 13, there is an expectation that legal practitioners will mount the witness box to provide some explanation as to the conduct, rather than simply relying upon evidence from the Bar Table.[118]

1. On being asked to draw inferences from matters on which the respondent had not given evidence, Tobias JA held that:

Yet these were the very matters which were wholly within the knowledge of the respondent and which he was [sic] did not offer to answer in the witness box. On the contrary, he chose the safety of the well of the Tribunal. Notwithstanding the advice of his then senior counsel, the respondent's refusal to enter the witness box and provide evidence with respect to the matters referred to should have been the subject of harsh criticism by the Tribunal. Moreover, if that evidence had otherwise been relevant to the issue, his refusal to provide it would have significantly detracted from the weight to be attached to the tendered character references. In these circumstances, the only inferences one can draw from the respondent's refusal to sworn testimony in this matter was that his evidence would not have assisted his case in resisting a finding of professional misconduct.[119]

...the failure of the respondent to give sworn evidence was inexcusable.[120]

1. The Tribunal accepts the submission of Applicant's Counsel that the evidence of the Respondent's rehabilitation would be expected to include direct evidence about his remorse; steps he had taken to make restoration for his past conduct; and importantly, evidence that he was no longer engaging in conduct of the kind that is the subject of the charges. In short, in assessing whether the Respondent has undergone a significant change in his lifestyle as alleged, and whether such change is meaningful in the context of his current compliance with his obligations under tax law, the Tribunal was entitled to expect to hear evidence from the Respondent, to the effect that he no longer fails to file income tax returns and BAS in a timely manner; and that he pays his assessed income tax and GST liabilities in a timely manner.
2. In contrast to what would be expected, the Respondent's approach in this case, was not to give evidence to assist the Tribunal in determining whether he is in fact rehabilitated. Instead, he has put forward and relied on others to speak about his rehabilitation.

1. Respondent's Counsel submitted that the character references and oral evidence of certain referees, in summary, indicate that:
   • (a) The Respondent is an excellent and hard-working barrister, one who is well-regarded by his colleagues and the courts;
   • (b) He is ashamed of and genuinely remorseful for the behaviour that led to the charges;
   • (c) He has matured markedly since the offending;
   • (d) He is now married and has two young children. He is devoted to his family and is their sole breadwinner. He relishes the joys and responsibilities of family life;
   • (e) He has worked exceptionally hard to pay off the tax debt the subject of the charges;
   • (f) Despite the nature of the offending, he is a fit and proper person to hold a practising certificate; and
   • (g) If allowed to do so, he will continue to serve the community and the law with the utmost propriety and professionalism.
2. In the Tribunal's view, the personal referees did not and would not be expected to address the criteria for a fit and proper person for the purposes of the Act. Furthermore, as indicated elsewhere, the competence and dedication of the Respondent, as a practising barrister, is not in dispute. As also indicated elsewhere, while the glowing testimonials are relevant to the Respondent's capacity to perform his professional duties in future, they have little bearing upon the assessment of his current fitness, having regard to his past serious breaches of his taxation obligations and his subsequent conduct in relation to such obligations.

1. Mr Dario Ferella, Accountant provided two witness statements and also gave oral evidence. He was first contacted by the Respondent in about 2004 and has been his accountant since about June 2005, although he has not been instructed to lodge all BAS returns.
2. In giving his evidence he referred to a Schedule of Tax Payments[121] which he had prepared, mainly from secondary sources. He did not hold any records of the Respondent prior to 2008.
3. The table prepared by Mr Ferella, and the evidence which he gave about it, confirmed that the Respondent has not complied with his recent taxation obligations in at least the following respects:
   • (a) A print out from the ATO tax agent portal dated 1 March 2012 headed Activity Statement List,[122] shows that the Respondent has filed most of his recent BAS statements late;
   • (b) The BAS for the quarter July to September 2011 was due in late October or mid-November 2011 (depending on whether the accountant or the Respondent filed it) but was filed on 29 February 2012;
     • (i) the BAS statement for the quarter April to June 2011 was due in late July or mid-August 2011 but was filed on 25 August 2011;
     • (ii) the BAS statement for the quarter January to March 2011 was due in late May or mid-June 2011 but was filed on 25 August 2011;
     • (iii) the BAS statement for the quarter October to December 2010 was due in late February or mid-March 2011 but was filed on 1 September 2011;
     • (iv) the BAS statement for the quarter July to September 2010 was due in late October or mid-November 2010 but was filed on 11 October 2011;
   • (c) Further to (a), this means that for the 6 most recent BAS, only 1 of them was filed on time and the other 5 were filed late with greatest delay being about 11 months;
   • (d) Further to (a) and (b), Mr Ferella could provide no explanation for why they were filed late save that any delay was caused by the Respondent and not his office;
   • (e) Mr Ferella could only produce 3 BAS for quarters in the financial year ending 30 June 2010.[123] For each statement produced the PAYG was stated as $0, although the Respondent had gross earnings of about $600,000 and $453,000 net for the financial year ending 30 June 2009; $579,000 gross and $433,000 net for the financial year ending 30 June 2010; and $623,000 gross and $447,000 for the financial year ending 30 June 2011. Mr Ferella could provide no explanation for why the PAYG was $0 given that he would expect PAYG of about $40,000 to $50,000 a quarter given the income received in prior years;
   • (f) Mr Ferella gave evidence that the lodgement records for BAS are readily available from the ATO portal from at least July 2001. Thus the Respondent could, had he chosen to, easily have answered the Applicant's letter of 28 May 2010;[124]
   • (g) The schedule prepared by Mr Ferella headed 'Matthew Stirling: Schedule of Tax Payments'[125] shows in the top section, payments made by the Respondent from January 2006 to August 2011 outside his PIAs. He said that other than the payments of $30,000, $15,000 and $75,000, the remaining payments were for GST. Thus, for the 22 complete quarters covered by the period in the top section there were 12 separate payments made for GST, with no explanation as to why there were not 22 payments;
   • (h) In respect of the 3 BAS referred to in (d), payments had been made by the Respondent in respect of only 2 of those statements with no explanation given for why no payment had been made for one;
   • (i) In his statement dated 6 March 2012, Mr Frella included a table detailing when income tax returns had been filed. For the tax returns which are not the subject of the charges - income tax returns for the financial year 30 June 2005 and subsequent years - the tax returns for 2005, 2006, 2007 and 2011 had been filed within time and the tax returns for 2008, 2009 and 2010 had been filed late, with the delay ranging from about 2 days to up to about 10 months. Mr Ferella could provide no explanation for why they were filed late, save that any delay was caused by the Respondent and not his office;
   • (j) Mr Ferella gave evidence that the Respondent had an outstanding debt to the ATO of about $288,000 for income tax attributable to the financial years ending 30 June 2010 and 2011, and about $90,000 for GST. This debt was separate from what he owed under PIA2, which covered only his tax debts up to the date that the PIA2 was signed; and
   • (k) Mr Ferella was unable to assist as to whether the ATO have issued any notifications of default in relation to late filing, as provided by cl 2.3 of both Personal Insolvency Agreements. He was also unable to assist as to whether any further penalties have been issued for late filing of BAS.
4. The Tribunal acknowledges that the evidence of Mr Ferella, relating to the continuing failure of the Respondent to file returns or pay assessed tax and GST in a timely manner, also needs to be assessed in light of the following information:
   • (a) The Respondent, by his letter to the Applicant dated 8 July 2010,[126] stated that the ATO has penalised him for failing to lodge 6 BAS returns on time. They were in respect of quarters January to March 2005; April to June 2005; April to June 2006; July to September 2006; October to December 2006; and January to March 2007. These are different quarters from those set out in under (b) of the preceding paragraph; and
   • (b) The Respondent refused, by his letter dated 8 July 2010, to provide information about whether he had lodged his BAS on time for the period June 2007 to March 2010 or whether the ATO had issued him any penalty notices for this period. Mr Ferella could not give evidence about this period. Hence, there is no evidence about whether the Respondent has complied with his obligation to lodge BAS in a timely manner for this period.
5. The Respondent has sought to show that he is rehabilitated by calling eminent people to speak on his behalf. Evidence was given to the effect that the Respondent was working very hard to repay his tax debt. However, no evidence was given, either directly by the Respondent or indirectly by anyone else, as to why the Respondent has failed to lodge all returns on time; and remains in arrears for payment of his liability for income tax and GST accrued since the liabilities encompassed by PIA2. To this end, none of the referees addressed why the Respondent appears to continue to engage in the same type of conduct that is the subject of charge 1.
6. It is clear that the authorities have distinguished between two types of tax obligations:
   • (a) First, the obligation to prepare and lodge income tax and BAS on time;
   • (b) Secondly, the obligation to pay tax and GST when assessed.
7. The Tribunal accepts the submission of Applicant's Counsel that during the Hearing, the Respondent focused wholly upon the second obligation and then only with respect to those liabilities encompassed under the PIA2.

1. The Tribunal accepts the submission of Applicant's Counsel that at no time has the Respondent, either during the investigation or before the Tribunal, put forward a clear and coherent explanation of his compliance with his taxation obligations for the financial years 30 June 2005 and onwards. This is evident in:
   • (a) his refusal to answer legitimate inquiries during the investigation;[127]
   • (b) his reliance upon an incomplete picture of his taxation payments, as given in the evidence of Mr Ferella and the Schedule of Tax Payments produced on the first day of the Hearing;
   • (c) his failure to explain why, notwithstanding a significant disposable income,[128] his outstanding liability for tax and GST, accrued since the PIA2, exceeds $378,000;
   • (d) his failure to obtain any current advice from the Controlling Trustee or confirmation from the ATO as to any outstanding notices of default or further penalties; and
   • (e) his approach in this Tribunal in relying upon others to give evidence as to: his current fitness to practise; and the extent to which he has been rehabilitated.
2. Where a respondent in a disciplinary proceeding seeks to show rehabilitation and to claim future fitness to practice, it is incumbent upon that respondent to present cogent evidence to that effect.[129] In this case, the evidence led by the Respondent raises many questions which have not been answered and which the Respondent could have answered:
   • (a) Why is his PAYG listed as $0 on three of recent BAS, given his high level of taxable income in 2010 and 2011?
   • (b) What is the situation with respect to the BAS in the period June 2007 to March 2010?
   • (c) Why has he filed some income tax returns late?
   • (d) Why has he filed some BAS late?
   • (e) Why has he not paid income tax for 2010 and 2011?
   • (f) Why has he not paid some GST owing?
   • (g) How is the claim of rehabilitation consistent with his response to the regulator?
   • (h) How is the claim of rehabilitation consistent with his known failure to comply with recent taxation obligations?
   • (i) Is his failure to meet his recent taxation obligations greater than what is shown from the material filed? and
   • (j) Why is there no statement from the Controlling Trustee confirming that no notices or penalties have been issued by the ATO?

1. There are certain fundamental principles which apply to the penalty powers in a disciplinary proceeding:
   • (a) The primary aim of an order is to protect the public and to protect the reputation of the profession itself;[130]
   • (b) Sentencing principles apply to achieve such aim, particularly the objectives of specific and general deterrence; as well as denunciation of the conduct;
   • (c) The available sanctions and the objectives of specific and general deterrence, depend upon the sanctions having punitive effect;[131]and
   • (d) It follows as a necessary corollary that it is not an objective of an order to seek to maximise recovery by the ATO. Otherwise all legal practitioners who have incurred debts by wrongful conduct could argue against an order that their practising certificate should be suspended or cancelled because to do so would affect their capacity to repay the debts.
2. The Tribunal accepts that, specific deterrence remains a relevant objective in determining any sanction by reason of the Respondent's:
   • (a) relative lack of cooperation with his regulatory authorities, but particularly the Applicant during its investigation; and
   • (b) without explanation, his apparent continuing failure to lodge returns or pay tax in a timely manner.
3. The Tribunal also accepts that while an order should reflect to some extent his personal circumstances, general deterrence is a particularly important objective because it is vital that the standard of a barrister's conduct, with respect to their civic obligations, is seen to be upheld. The public must have confidence in the integrity of barristers.
4. As his Honour Judge Ross (as he then was) observed in Legal Services Commissioner v Brott:[132]

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. The Tribunal also accepts that denunciation is particularly relevant in the circumstances where the conduct was not excusable on any ground of the Respondent's personal circumstances at the time it occurred. There was no mental impairment (unlike Moore); nor was there personal tragedy (unlike Cain); nor other circumstances which made it difficult for the Respondent to comply with his obligations. Furthermore, there appears to be continuing non-complying conduct.
2. The Tribunal accepts that the Respondent engaged in a repetitive failure of his legal and civic obligations. The failure consisted of two distinct parts. First, he did not lodge timely income tax or BAS. Secondly, he did not make provision for or pay income tax and GST assessed as owing. The first part was arguably the more serious,[133] although the Respondent's position in the proceedings has focused entirely on the second.
3. While the period of his failure is less than in cases such as Cummins, a failure to meet tax obligations for similar periods has been held to be so serious as to:
   • (a) Show probable permanent unfitness for legal practice justifying striking off the roll of legal practitioners: for example, Hewlett where a failure to lodge tax returns for 11 consecutive years was characterised as a default of 'substantial proportion'; or
   • (b) Justify a suspension of a practising certificate for a period, for example, Pillay where a failure to lodge tax returns for 6 years and to make provision for 8 years led to a suspension of his practising certificate for a year.[134]

1. Applicant's Counsel submitted and the Tribunal accepts that there are a number of aggravating features in the Respondent's conduct.

1. During the period that the Respondent was not disclosing his income or paying tax he was living a lavish lifestyle. In his disclosure to the Victorian Bar dated 10 April 2008[135] he explained that:

Up until 2005 when I met my fiancée, I lived an indulgent lifestyle. I spent earnings on holidays, dining out, gambling and seeking to gain social attention rather than living within my means and properly budgeting.

1. In his Statement of Affairs,[136] he said that the main cause of his financial difficulties was 'gambling, speculation and extravagance in living'. He also told Ms Matthews, the psychologist who examined him, that he 'lived like a millionaire'.
2. The Respondent's conduct was deliberate in that he was aware of the need to lodge tax returns but did not. He preferred to spend money on himself rather than meet his taxation obligations. He did not voluntarily disclose his non-compliance with the ATO but waited for the ATO to chase him for his outstanding returns. Even when prosecuted for failing to file tax returns, he delayed taking steps to put his past affairs in order or to put his future affairs in order.
3. The Respondent's disclosure of his conduct to the Victorian Bar Inc, was not voluntary in the sense that it was made to satisfy a requirement in the Conduct Rules of the Victorian Bar Inc. Further, it took place after the ATO had already prosecuted him. The disclosure also contained a false and misleading statement which is the subject of charge 3.

1. The Tribunal also accepts that the Respondent has demonstrated a lack of candour in dealing with his regulators, reflecting a lack of integrity, which constitutes another aggravating factor.[137] This lack of candour is reflected in:
   • (a) The conduct the subject of charge 3;
   • (b) The Respondent's failure or refusal to respond at all for a lengthy period to the Applicant's request for information during the investigation;[138] and
   • (c) The Respondent's refusal to answer legitimate requests even where further explanation was given of the basis for the requests.[139]
2. The Tribunal accepts the Applicant's submission that, in light of the apparent lateness of filing some income tax returns and BAS, without any explanation offered, it is reasonable for the Tribunal to infer that his refusal to answer requests was prompted by a desire to not to reveal that he was continuing not to comply with his obligations to file tax documents on time.
3. The Respondent has elected not to give evidence. He was perfectly entitled to take that course. However, the Tribunal has been deprived of a satisfactory explanation in relation to matters outlined under 'Deficiencies in Evidence' above.

1. The evidence, such as it is, demonstrates that the Respondent has not complied with his taxation obligations since the conduct the subject of charge 1. It shows that he has not filed some income tax and many BAS on time and he is not paying his tax obligations when they fall due. The Tribunal accepts the submission of Applicant's Counsel that this circumstance goes to the very heart of this matter. If the Respondent was in fact rehabilitated, then he should at the very least be filing his income tax and BAS on time.
2. In his disclosure to the Victorian Bar dated 10 April 2008,[140] the Respondent stated that he had engaged accountants to assist him with his tax obligations and had assistance from his personal assistant to complete material required for his returns. Furthermore, according to Ms Matthews,[141] the Respondent 'appears to have thought through organisational arrangements with his clerk and through the employment of secretarial support that better support the financial management of his practice and his obligations to the ATO'. However, notwithstanding these changes, without explanation to the Tribunal, the Respondent appears to be continuing to engage in conduct of a kind encompassed by Charge 1.

1. Respondent's Counsel submitted that there has been a substantial delay between the behaviour giving rise to the charges and the hearing and determination of those charges, which constitutes a significant mitigating factor.
2. In the field of criminal law, the authorities make clear that, when a person has used a period of delay wisely and/or has suffered the strain of delay, such delay, however caused, is a powerful mitigating factor. In R v Merrett & Ors,[142] Maxwell P discussed the authorities and, summarised the matter in this way:

... On a proper analysis, however, the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. ...

The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes 'a powerful mitigating factor'. In particular, it focuses attention on issues of rehabilitation and fairness.[143]

1. It has also been acknowledged that the same principles are applicable in disciplinary proceedings in this Tribunal.[144]
2. Applicant's Counsel properly concedes, and the Tribunal accepts, that there has been delay. However, it is necessary to assess the effect of the delay upon the Respondent. Accordingly, a closer analysis of the nature of the delay and the Respondent's response to it at various stages, is warranted. To this end it is appropriate to briefly set out the timeframe for relevant events.
   • (a) The Respondent failed to:

(i) file income tax returns over 8 financial years, commencing 1 July 1996;

(ii) pay income tax over 9 financial years, commencing 1 July 1996;

(iii) pay provisional tax between 1 June 1998 and 30 June 2000; or

(iv) file BAS or pay GST over 5 financial years commencing 1 July 2000;

(b) On 7 September 2004, the Respondent was convicted of an offence under the Tax Administration Act;

(c) On 4 April 2006, the DCT obtained a default judgement in the Supreme Court for outstanding tax debts plus interest and costs;

(d) On 15 August 2006, the Respondent entered into an arrangement with the DCT for the payment of the judgement debt, which arrangement was terminated owing to the Respondent's failure to comply;

(e) On 4 March 2008, the Respondent made a statement of affairs in which he declared he was insolvent with accumulated debts of $743,812, including $713,812 owed to the ATO;

(f) On 11 March 2008, the Respondent notified the Ethics Committee, who then sought further information on 20 March 2008;

(g) On 10 April 2008, the Respondent provided a response to the Ethics Committee which contains the false and misleading statement which is the subject of amended charge 3;

(h) On 2 May 2008, the Respondent entered into PIA1, which was terminated on 30 September 2008 by reason of his failure to comply;

(i) On 2 September 2009, the Respondent entered into PIA2 being 16 months after the first PIA;

(j) In August 2008, the Applicant commenced its investigation into the conduct of the Respondent and first wrote to him on 6 August 2008 requesting a full explanation of his conduct. No reply was received to this letter or to any of the subsequent letters dated: 3 September 2008; 15 October 2008; 23 December 2008; 28 August 2009; or 20 November 2009. That is, to this point the Applicant had failed for over 15 months to make any response to the Applicant's request for information;

(k) On 13 January 2010, the Applicant wrote a further letter to which the Respondent replied on 19 January 2010. This in fact was only a partial response which promised a further reply by 4 February 2010. No further reply had been received by 28 May 2010, when the Applicant sent a further letter detailing information sought from the Respondent;

(l) In a telephone conversation on 16 June 2010, the Respondent said he was aiming to reply by 21 June 2010, but failed to do so;

(m) The Applicant sent a further letter dated 6 July 2010 to which the Respondent replied by letter dated 8 July 2010 in which he acknowledged failure to lodge BAS on time for six quarters for which the ATO had imposed penalties, and otherwise refused to provide further information sought;

(n) By letter dated 22 July 2010, the Applicant again sought a response to its earlier correspondence, to which no reply had been received to the date of filing the Application with the Tribunal on 21 March 2011;

(o) On 18 August 2010, the Applicant received a copy of the Respondent's disclosure to the Ethics Committee dated 9 September 2009;

(p) By letter dated 20 December 2010, the Applicant offered the Respondent the opportunity to provide a further submission by 24 January 2011 before it made a decision under s 4.4.13 of the Act. No reply was received to this letter. Telephone messages were left for the Respondent on 28 January 2011 and 1 February 2011 [confirmed by letter dated 3 February 2011] extending the time in which the Respondent could make submissions to 9 February 2011. The Respondent failed to make any reply as at the date of the filing of the Application with the Tribunal;

(q) By letter dated 18 March 2011, the Applicant advised the Respondent that a decision had been made that there is a reasonable likelihood that the Tribunal would find him guilty of professional misconduct; and

(r) On 21 March 2011, an Application for orders was filed at the Tribunal.

186 The behaviour giving rise to the charges, judgment debt and investigation, extended over a period from 1996 to 2005. According to Exhibit 2, which was compiled by Mr Ferella from secondary sources, the earliest payment on account of unpaid tax for the relevant period was not made until January 2006. The investigation by the Applicant, commenced during the currency of the PIA1 and prior to its termination in September 2008.

1. Until the Respondent was alerted to the fact that the Applicant was undertaking an investigation into his conduct, there was no necessary expectation that such investigation would take place. Indeed, between 1 July 2005 and May 2008, when PIA1 was entered into, the Respondent theoretically could have extinguished his liabilities or otherwise complied with an early arrangement with the ATO for repayment by instalments.
2. Once the Respondent was notified of the commencement of the investigation, there was a prolonged period during which the Respondent failed even to acknowledge, let alone reply to, the Applicant's requests. It could be argued that the Applicant could have acted more precipitously, made a determination and brought the matter to the Tribunal at an earlier stage. However, there is no question that the Respondent was given every opportunity to give an explanation for his conduct and provide answers to specific questions. On a number of occasions he stated that information was forthcoming and then failed to deliver. Ultimately, he provided limited information only. In the Tribunal's view, it is very difficult to discern from this pattern of conduct, the kind of positive rehabilitation and change of attitude otherwise claimed on behalf of the Respondent.
3. The delay clearly not attributable to any act or default by the Respondent is the period between the filing of the Application on 21 March 2011 and the determination of the Tribunal Hearing namely in March 2012. During this period there were also adjournments at the request of the Respondent.
4. Respondent's Counsel relies upon the opinion of Ms Matthews as indicative of the 'considerable strain suffered by the Respondent in having this matter hanging over his head for several years'.
5. In the Tribunal's view, there is little in Ms Matthews two reports which justifies the quoted statement above. After conducting a psycho metric assessment, Ms Matthews reported:

... Mr Stirling is someone whom is likely to be an extroverted personality, whom might take risks that others would avoid.[145]

1. Ms Matthews otherwise confirms that the Respondent does not present with any significant mood disturbance, mental disturbance or personality disorder; and appeared to be suffering only from 'mild situational depression.' It is noted that Ms Matthews' first report was written in April 2008, being prior to the commencement of an investigation by the Applicant.
2. In her second report dated 28 February 2012, Ms Matthews refers to the Respondent suffering 'mild low-level situational depression' but otherwise makes no reference to any emotional or psychological disturbance referable to the original charges, judgment debt or investigation by the Applicant.
3. The major part of Ms Matthews' reports address the Respondent's changed social circumstances since 2005: he has obviously grown older; he now has a wife and two young children; he reports that he no longer socialises outside the family; he has made changes to the management of his practice; he has brought his gambling under control; and all discretionary income is now applied to his family and repayment of tax debts.
4. While the Tribunal accepts these matters at face value, as indicated elsewhere in these reasons, the Respondent has failed to put before the Tribunal additional relevant information which would have significantly assisted the Tribunal in assessing the extent to which he has undergone a significant rehabilitation, as alleged.
5. Delay has significance as a mitigating factor in criminal matters where a person has, because of delay, undergone a significant period of rehabilitation and had the burden of unresolved charges for an extended period.[146]
6. In this case, the delay has enabled the Respondent to take a significant rehabilitative step: it has given him the opportunity to repay a large portion of his tax debt. It also gave him a period in which he could demonstrate an ability to comply with his taxation obligations with respect to filing his returns and paying current liabilities for tax and GST. However, the material filed by the Respondent, does not show an unblemished record, and the evidence from Mr Ferella seems to show a continuing pattern, either of neglect or defiance.
7. The mitigatory impact of delay can be weakened where the delay is attributable to the obstruction or lack of co-operation of a respondent.[147]
8. In R v Talia[148] the Court of Appeal noted, in the context of an appeal against sentence, where there had been inexplicable delays, none of which were attributable to the appellant's conduct:

The longer the period of delay the greater its likely weight as a mitigatory circumstance, particularly when the delay is not attributable to the conduct of the accused. Again whilst it is not necessary for delay to operate as a circumstance of mitigation, that it would be unexplained, the fact that it is not attributable to the conduct of the accused will likely make it of greater significance.[149]

1. The length of the investigation of the Respondent was greatly increased by the Respondent's repeated unexplained refusals to respond to legitimate letters and enquiries from the Applicant seeking information in the course of the investigation.[150]
2. Taking all of the circumstances into account the Tribunal accepts Applicant Counsel's submission that in this case, unlike in Long's case, delay is not a strong mitigating factor.

1. Respondent's Counsel submitted that if the Respondent's practising certificate were suspended for any substantial period, he would be unable to meet the balance of payments due under PIA2 or his ongoing tax liabilities. He would be compelled to declare bankruptcy. His family - for whom he is the sole breadwinner - would suffer. His staff (he has three part-time secretaries combining to the equivalent of one full-time secretary) would be out of work. He would be financially ruined. Counsel submitted that the Tribunal is entitled to take into account such factors in determining whether or not to suspend a practising certificate.[151]
2. As indicated above, it is not the objective of this kind of proceeding to ensure or facilitate payment of a respondent's tax liabilities.
3. The Tribunal further notes that the Respondent did not provide any information as to his current financial affairs;[152] his capacity to draw upon financial resources; the financial circumstances of his wife; or his capacity to derive income other than as a practising barrister. The only evidence in relation to any of these matters before the Tribunal was given by Dr Lyon, who postulated to the effect that he had no financial resources to fall back upon; and no ability to otherwise earn income. The Tribunal affords no weight to this evidence.
4. In relation to loss of employment, the Court of Appeal in R v Talia made the following distinction:

there seems to us to be a distinct difference between a disqualification resulting from criminal conduct in the course of employment from which the person is disqualified and criminal conduct remote from that employment but having that consequence... In the latter class of case there might be a considerably stronger argument in favour of the incidental loss of employment being treated as a circumstance of mitigation.[153]

1. In the Tribunal's view, the Respondent's conduct does not fit into the latter category as identified in Talia's case; and his loss of employment as a barrister, during any period of suspension, is a necessary consequence of an appropriate sanction.

1. Counsel for the Respondent submitted that his remorse is demonstrated in the following ways:
   • (a) His guilty pleas;
   • (b) The observations of others. For example:

(i) Dr Gregory Lyon SC, gave evidence that he has spoken to the Respondent about 'the ATO issues and these proceedings many, many times' and described the Respondent as... 'genuinely ashamed of his past omissions and the strain it now puts on his family'; adding that he... 'knows that [the Respondent's] remorse is genuine';[154]

(ii) Mr Michael Green, in his written testimonial says that:

In many discussions with me he has made no excuse for his conduct and, more than anyone, deplores what he has done. As Matthew has grown in responsibility and maturity, his regret for his earlier irresponsible behaviour has also grown...which regret [he] has expressed on many occasions by [his] words and actions.[155]

(iii) Mr Stephen Moloney, says that the Respondent is 'shamed' and 'is now humbled by his failings and, ironically, made the better for them'.[156]

1. The Tribunal accepts, consistent with sentencing principles generally, that a guilty plea of itself is usually evidence of some remorse and carries with it the added advantage of saving the Tribunal and the Applicant the expense of a contested hearing.
2. The Tribunal also accepts that the various referees have given an honest account of their personal interaction with the Respondent and assessment of his expressed shame and remorse.
3. However, the weight to which the Tribunal can give such expressions of remorse is diminished by reason of the Respondent's election not to give direct evidence to the Tribunal and thereby subject himself to cross-examination. This is particularly relevant in a context where the Respondent seeks to demonstrate to the Tribunal that he has undergone a significant rehabilitation.

Payment of tax, interest and costs instead of bankruptcy

1. Applicant's Counsel conceded and the Tribunal accepts, that it is a mitigating factor that the Respondent has now repaid most of his initial tax debt.[157] In the absence of such repayments, Applicant's Counsel indicated that a much longer period of suspension would have been sought.
2. However, the Tribunal also accepts that these repayments alone are not sufficient evidence of rehabilitation for two reasons:
   • (a) First, the repayments have occurred in the context of further and repeated failures to file income tax and BAS, in a timely manner and non-payment of recent tax debts; and
   • (b) Secondly and related, the Respondent's ability to repay his PIA2 debt arises, at least in part, from the fact that he is not paying more contemporary tax debts.
3. Respondent's Counsel submitted that it is significant that the Respondent elected to enter into a personal insolvency arrangement in order to pay his tax debt, plus interest and costs, instead of declaring bankruptcy. Counsel suggested that this was an exceptional course to take in the circumstances and demonstrates remorse, an acceptance of responsibility and decency. Counsel further suggested that:

...far easier and overwhelmingly more common course in situations of this nature is to declare bankruptcy, which in turn almost invariably means that the ATO receives only a very small proportion of the tax debt owed to it.

1. In the Tribunal's view, as indicated during the course of the Hearing, the decision whether to petition for one's own bankruptcy is far more complex and certainly not necessarily the 'easier' course which Counsel suggested. While bankruptcy is not an automatic disqualifying event for holding a practising certificate for a barrister, it is a 'show cause' event and in such a circumstance the practitioner would have to show, to the satisfaction of the Applicant, that they were still a fit and proper person to hold a practising certificate.
2. Furthermore, there are other consequences associated with bankruptcy which a party may seek to avoid, if they have the capacity to do so. In this case, the Respondent has clearly demonstrated a capacity to earn a very high income, which has progressively increased. There is no other evidence to indicate any lack of capacity at any relevant time, by reason of mental illness, personal or other social disruption, or unavoidable extraneous expenses.
3. Again, in seeking to rely upon this purported circumstance the Tribunal has not been afforded any direct evidence from the Respondent.
4. In the circumstances, the Tribunal gives no weight to this submission.

1. As indicated above, while there are numerous character references from witnesses of high repute to the effect that the Respondent has shown a high level of competence in professional practice, his professional misconduct has not arisen from a lack of competence in legal practice. Accordingly, such references provide little assistance to assessing his current fitness to practice in the context of his default.[158] Further, good character is not a question of the opinion others may have of the Respondent. It is to be judged by his actions and motivations.[159] Further, the character evidence is weakened by the Respondent's failure to give evidence.[160]
2. Nevertheless, the evidence of the Respondent's good character, in the context of his practise as a barrister, is a matter to be taken into account in his favour.

1. The Respondent has been seen four times by Ms Pamela Matthews, Forensic Psychologist, for the purpose of providing medico-legal reports to the Victorian Bar and this Tribunal. Ms Matthews opines that the Respondent has mild situational depression, that is, mild depression arising from the fact of these proceedings. He does not suffer from significant mood disturbance or a history of significant mental disturbance, nor does he suffer from any personality disorder. Ms Matthews does not state that he was suffering from any mental condition when he engaged in the conduct, the subject of the Application, or that any mental condition has caused or contributed to that conduct. However, she notes that his gambling behaviour during this period [about which no details have been given] may have met the diagnostic criteria for Pathological Gambling. Nothing in her reports suggests that at the time he engaged in the subject conduct, the Respondent suffered from any causative psychological condition.
2. The Tribunal notes that in his Disclosure to the Ethics Committee dated 10 April 2008, the Respondent stated that the purpose of consulting Ms Matthews:

... Has been partly to induce matters in support of my contention that I remain a person suitable to engage in legal practice but more importantly, to assist me in developing strategies with respect to financial management and ensuring that I allocate sufficient funds to meet my ongoing liabilities.[161]

1. The Tribunal accepts Applicant Counsel's submission that there is nothing in Ms Matthews reports which is directed to the above stated purpose.

1. Counsel for the Applicant acknowledged that the Respondent's conduct, the subject of charge 3, is less serious than his conduct, the subject of charge 1. Counsel submitted that charge 3 would normally lead to a reprimand and a fine. However, a global approach to penalty should be adopted in the circumstance where the amended charge 3 is related to the initial offending conduct. The Tribunal agrees.
2. Counsel submitted that an appropriate sanction in the circumstances of this case would be that the Respondent be reprimanded and his practising certificate suspended for a period of 3 to 4 years.
3. In addition, the Applicant seeks an order that while the Respondent continues to hold a practising certificate, pursuant to s 4.4.19 of the Act, the Respondent's legal practice is to be subject to the following condition, namely that: the Respondent is to inform the Commissioner in writing of any failure after today to comply with his taxation obligations within 7 days of any such failure. The Respondent did not resist this kind of condition.
4. Respondent's Counsel submitted that the Tribunal should impose a separate penalty appropriate to each charge; and that the appropriate sanction would be a reprimand and a substantial fine.
5. Counsel contended that a finding of professional misconduct in itself is a form of sanction and opprobrium for the Respondent. In the circumstances a reprimand and fine, without suspension, is an appropriate response to his conduct. Counsel further contended that, for a professional person, a reprimand has the potential for serious adverse implications.[162]
6. Respondent's Counsel submitted that suspension of the Respondent's practising certificate would be inappropriate and inconsistent with other determinations of the Tribunal, in similar cases. Referring to the cases of Moore[163] and Long, [164] already detailed above, Counsel submitted to the effect that the circumstances of the Respondent are distinguishable from these two cases in that:
   • (a) the Respondent's period of non-compliance, whilst substantial, was much shorter than theirs;
   • (b) the delay he has suffered in his matters being brought to finality is as long as or longer than theirs;
   • (c) the Respondent took the exceptional and responsible course of entering into a personal insolvency arrangement in order to pay his tax debt, as well as interest and costs, instead of going bankrupt; and
   • (d) suspension of the Respondent's right to practice will cause financial ruin and hardship to others.
7. For reasons already noted above, the Tribunal does not accept these submissions.
8. In relation to amended charge 3, Counsel conceded that the impugned statement was false and misleading; and the conduct careless and ill considered. However, all relevant information was otherwise disclosed with the statement. Accordingly, the Respondent's culpability should be regarded at the lower end, with an appropriate sanction being a reprimand or small fine. The Tribunal generally accepts this approach to charge 3.

1. After taking all circumstances into account the Tribunal has concluded that a reprimand and substantial suspension of the Respondent's practising certificate is warranted, together with an additional condition, as recommended, attaching to his practising certificate. The period of suspension will be three years.
2. If there had been no appreciable delay or substantial repayment of the original tax debt, then the Respondent would almost certainly have been facing a very lengthy suspension or cancellation of his practising certificate and removal from the bar roll.
3. In reaching this determination, the Tribunal has had particular regard to:
   • (a) the serious nature of the charged conduct, but most particularly under charge 1;
   • (b) the length of the period over which such conduct continued;
   • (c) the total absence of any apparent extenuating circumstances;
   • (d) the Respondent's subsequent uncooperative and dilatory conduct in the context of the Applicant's investigation;
   • (e) the failure or refusal of the Respondent to provide answers to legitimate enquiries made by the Applicant;
   • (f) the Respondent's apparent continuing non-complying conduct;
   • (g) the Respondent's failure to provide direct relevant evidence before the Tribunal: and
   • (h) the significant objectives of general deterrence; and maintaining public confidence in the performance of legal obligations and civic responsibilities by professional people.

1. Clause 46D of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides that:

(2) The Tribunal must make an order requiring an Australian legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including the costs of the Commissioner and the complainant (if any)) unless the Tribunal is satisfied that exceptional circumstances exist.

1. The Tribunal will hear any submissions on costs, failing which it proposes to make an order that the Respondent pay the Applicant's costs on Scale D of the County Court Scale of Costs applicable up until 31 August 2011 and from 1 September 2011 on the current County Court Scale of Costs, to be taxed in default of agreement.

[1] The particulars relied upon are those set out below.

[2] The particulars relied upon are those set below.

[3] The following is taken from the Applicant's Application for Order filed with the Tribunal and dated 17/03/2011 ('the Application').

[4] All references hereafter to the Respondent's obligations to lodge income tax returns and BAS; and discharge his liability for payment of income tax or provisional tax; relate to legal services that he had provided in professional practice as a barrister.

[5] Annexure marked 'A' to the Application.

[6] Annexure marked 'B' to the Application.

[7] Annexure marked 'C' to the Application contains the Controlling Trustee Authority and Declaration, and a Certificate of Appointment dated 5 March 2008.

[8] Annexure marked 'E' to the Application contains the Respondent's letter dated 11 March 2008.

[9] Annexure marked 'F' to the Application contains the Ethics Committee letter dated 20 March 2008.

1. [10] Annexure marked 'G' to the Application contains the letter dated 10 April 2008 and the disclosure dated 10 April 2008 including attachments.

[11] At sub-paragraph 29(n) of the disclosure.

[12] Annexure marked 'H' to the Application contains the ATO's notice of penalty dated 17 October 2006.

[13] Annexure marked 'I' to the Application contains the ATO's notice of penalty dated 12 April 2007.

[14] Annexure marked 'J' to the Application contains the ATO's notice of penalty dated 13 April 2007.

[15] Annexure marked 'K' to the Application contains the ATO's notice of penalty dated 9 July 2007.

[16] Annexure marked 'D' to the Application contains the personal insolvency agreement.

[17] Annexure marked 'L' to the Application contains the Respondent's letter dated 9 September 2009.

[18] The letter also enclosed material that the Respondent had provided to the Ethics Committee.

[19] Annexure marked 'M' to the Application contains the Applicant's letter dated 6 August 2008.

[20] Annexure marked 'N' to the Application contains the Applicant's letter dated 3 September 2008.

[21] Annexure marked 'O' to the Application contains the Applicant's letter dated 15 October 2008.

[22] Annexure marked 'P' to the Application contains the Applicant's letter dated 23 December 2008.

[23] Annexure marked 'Q' to the Application contains the Applicant's letter dated 28 August 2009.

[24] Annexure marked 'R' to the Application contains the Applicant's letter dated 20 November 2009.

[25] Annexure marked 'S' to the Application contains the Applicant's letter dated 13 January 2010.

[26] Annexure marked 'T' to the Application contains the Respondent's letter dated 19 January 2009.

[27] Annexure marked 'U' to the Application contains the Applicant's letter dated 28 May 2010.

[28] Annexure marked 'V' to the Application contains the Applicant's letter dated 6 July 2010.

[29] Annexure marked 'W' to the Application contains the Respondent's letter dated 8 July 2010.

[30] Annexure marked 'X' to the Application contains the Applicant's letter dated 22 July 2010.

[31] Annexure marked 'Y' to the Application contains the of the Victorian Bar Inc's letter dated 18 August 2010.

[32] Annexure marked 'Z' to the Application contains the Applicant's letter dated 20 December 2010.

[33] Annexure marked 'AA' to the Application contains the Applicant's letter dated 3 February 2011.

1. [34] Section 4.4.4 specifies conduct that is capable of constituting unsatisfactory professional conduct and section 4.4.5 specifies conduct that constitutes unsatisfactory professional conduct.

[35] Legal Services Commissioner v Keough [2010] VCAT 108, [4].

1. [36] [1940] AC 282 at 288-289; see also New South Wales Bar Association v Murphy [2002] NSWCA 13 per Giles JA at [44].

[37] Citing Re a Solicitor; Ex parte Law Society [1912] 1 KB 302.

[38] Mullany v Psychologists Registration Board Unreported, Supreme Court of Victoria, 22 December 1997 at p 9 per Gillard J.

[39] [1960] VicRp 96; [1960] VR 617 at 622.

[40] [1999] VSC 113 at [23]- [24].

[41] [1990] 1 Qd R 498 at 507.

[46] See, for example, Legal Services Commissioner v Moore [2010] VCAT 742.

[47] The following synopsis draws upon the Applicant's written submissions.

[48] 2010] VCAT 742.

[49] [2011] VCAT 1164 and [2012] VCAT 193.

[50] The High Court has held that there is one common law throughout Australia which requires courts to follow decisions of intermediate appellate courts on questions arising from the common law unless persuaded that they are plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135].

[51] [1999] NSWCA 404; (1999) 217 ALR 553 New South Wales Court of Appeal.

[52] Mason P and Priestley JA (Davies AJA dissenting - recommended 3 year suspension).

[56] (1984) 36 SASR 590 at 593 (Zelling and Jacobs JJ agreeing).

[58] [2001] NSWCA 284; (2001) 52 NSWLR 279; unanimous decision of Spigelman CJ, Mason P and Handley JA.

[59] At [20] with whom Mason P and Handley JA agreed.

[64] Davison v Council of NSW Bar Association (2007) 69 ATR 402; [2007] NSWCA 227 at [110].

[65] (2001) 48 ATR 562; [2001] NSWCA 285.

[67] A decision handed down the same day.

[73] Exhibit 2. It is noted that the schedule prepared by the Applicant as Exhibit F, only shows payments of GST in 2007 and then not until 2009 and after.

[74] (2003) 54 ATR 25; [2003] NSWCA 261.

[78] Mr Peter O'Callaghan QC; Dr Gregory Lyon SC; Mr G. John Digby QC; Mr Stephen Maloney; Mr E.W Alstergren.

[80] Defined in s 137(b) of the Legal Practice Act 1996.

1. [82] New South Wales Bar Association v Stevens (2003) 54 ATR 25; [2003] NSWCA 261 At [57].

[83] [2003] NSWCA 228; (2003) 54 ATR 22; [2003] NSWCA.

[84] [2007] NSWCA 227; (2007) 69 ATR 402.

[87] The Legal Practice Tribunal Division of the Supreme Court of Queensland.

[90] [2010] VCAT 742.

[93] (2006) 46 SR (WA) 39; [2006] WASAT 309.

[96] LSC v Long [2012] VCAT 193.

[98] The Tribunal notes, in marked contrast to the circumstances of the current case.

[100] See NSW Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23 at [107]; see also Somosi (at [75]); Davison at [106].

[102] (2002) 50 ATR 302; [2002] NSWSC 548.

[104] New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23 at [162-172].

[105] Davison v Council of NSW Bar Association (2007) 69 ATR 402; [2007] NSWCA 227 at [110].

[108] In addition to the Tribunal's jurisdiction conferred under the Victorian Civil and Admission and Tribunal Act 1998.

[109] See Hanneberry v Legal Ombudsman [1998] VSCA 142.

[110] [1982] 2 NSW LR 1.

[111] At 9-10; with whose reasons Hopes JA agreed.

1. [112] The comments of Moffit P were cited with approval by Campbell JA (with whose reasons Hodgson JA and Handley AJA agreed) in Stanoevski v The Council of the Law Society of NSW [2008] NSWCA 93 at [60]; and by the Tribunal: .see, for example Moore's case at [40].

[113] (1966) 84 W.N. 136.

[116] [2006] NSWCA 340.

[117] At [70]; with whose reasons on this point Bryson and Basten JA agreed.

[122] Which is part of annexure DF1 to his statement dated 2 March 2012.

[127] See, for example, annexures U and W.

[128] According to Exhibit 2, for the years 2009, 2010 and 2011, the Respondent's taxable income exceeded payments made by about $672,000.

[129] Johns v Law Society of New South Wales [1982] 2 NSW LR 1.

[130] Ha v Pharmacy Board of Victoria [2002] VSC 322 at para 91 per Gillard J.

[131] Quinn v LIV [2007] VSCA 122 at [30]; see also [35].

[132] [2008] VCAT 2399 (24 November 2008).

[133] Davison v Council of NSW Bar Association (2007) 69 ATR 402; [2007] NSWCA 227 at [110].

[134] See also the observation of the Tribunal in LSC v Long [2012] VCAT 193 at [13]- [14].

[135] At [29(f)], which is annexure G to the Application.

[137] In Young's case Meagher AJ commented that the failure to lodge income tax returns demonstrated a lack of integrity that the public has a right to expect from a barrister.

[138] See generally Application [39] to [71]; and the chronology handed up by the Applicant.

[139] Correspondence at tabs W and X of the Application. In his oral evidence, Dr Lyons acknowledged to the effect that he counselled the Respondent against taking such a stance.

[140] Part of annexure G), at [29(h) and (i).

[141] In her report dated 28 February 2012.

[142] [2007] VSCA 1; (2007) 14 VR 392 at [32]- [39].

[144] See Legal Services Commissioner v Long (Legal Practice) [2012] VCAT 193 at [27]- [30].

[145] Report dated 10 April 2008, p 3.

[146] See, for example, R v ONA [2009] VSCA 146, [42]-[44]; and R v Talia [2009] VSCA 260, [22] and the cases at footnote 3.

[147] See R v Talia [2009] VSCA 260 [22].

[148] [2009] VSCA 260.

[150] See Application [39] to [71] and summarised in the Investigation Chronology.

[151] See, e.g. Ha v Pharmacy Board of Victoria [2002] VSC 322 at [120]; applied in Legal Services Commissioner v Hession (Legal Practice) [2010] VCAT 1687 at [17].

[152] The disclosure statement made to the Ethics Committee is dated 10 April 2008; and His Statement of Affairs for the ATO is dated 4 March 2008.

[153] [2009] VSCA 260 At [28].

[154] The Tribunal acknowledges that the evidence of other witnesses was consistent in this regard.

[155] Testimonial dated 22 February 2012.

[156] Testimonial dated 2 November 2011.

[157] The Respondent has now repaid all except about $69,000 of the original tax debt, including interest and costs; and is expected to repay the balance owing under PIA2 by April 2012.

[158] See Stevens case and Young's case - referred to above.

[159] See Legal Services Board v Forster [2011] VCAT 2216 at [294] citing Melbourne v The Queen (1999) 198 CLR 1, 25 at [66].

[160] See Meakes' case, referred to above.

[162] See, e.g., Legal Services Commissioner v Moore (Legal Practice) [2010] VCAT 742 at [44], citing Marks J in Peeke v The Medical Board of Victoria (unreported, Supreme Court of Victoria, 19 January 1994) at 6 and Medical Practitioners Board of Victoria v Swieca [2009] VCAT 419.

[163] [2010] VCAT 742.

[164] [2011] VCAT 1164.