Legal Services Commissioner v Telehus (Legal Practice) [2008] VCAT 844

1. This order, and the reasons which follow, relate to applications J067/2008 and J068/2008.
2. The Tribunal finds the respondent guilty of two counts of professional misconduct as defined by s.4.4.4(f) of the Legal Profession Act 2004, in that he failed to comply with two orders made by the Tribunal pursuant to the Act on 26 October 2007.
3. The local practising certificate held by the respondent is cancelled as from 1 June 2008.
4. Subject to paragraph five of this order, no practising certificate for the financial year 2008-2009 is to be issued to the respondent prior to 1 January 2009.
5. If, by 31 May 2008, the respondent:
   • (a) complies with paragraph four of the order made by the Tribunal on 26 October 2007 in application J196/2007; and
   • (b) complies with paragraph three of the order made by the Tribunal on 26 October 2007 in application J197/2007;

a practising certificate may be issued to the respondent on or after 1 September 2008.

1. If a dispute arises as to whether the respondent has complied by 31 May 2008, the applicant or the respondent may apply in writing to the Tribunal requesting that the Tribunal reconvene and make a determination as to compliance.
2. The respondent is to pay to the Legal Services Commissioner by 31 May 2008 her costs of applications J067/2008 and J068/2008, fixed by the Tribunal at a total of $2,214.60.

There was no appearance by or on behalf of the respondent.

CHARGES BROUGHT BY THE LEGAL SERVICES COMMISSIONER:

1. Nicholas Telehus is a legal practitioner who practises at Morwell under the business name Latrobe Legal.
2. The Legal Services Commissioner has charged Mr. Telehus with professional misconduct. There are two charges, one arising out of a complaint made to the Commissioner by Mr. Sam Prestipino (VCAT application J067/2008) and the other arising out of a complaint made to the Commissioner by Mr. Dean Mackay (VCAT application J068/2008). Both Mr. Prestipino and Mr. Mackay are former clients of Mr. Telehus.
3. The two charges are the same, namely that Mr. Telehus is guilty of professional misconduct in that he failed to comply with an order made by the Tribunal on 26 October 2007. Two similar orders were made on that date, one in Mr. Prestipino's matter and the other in Mr. Mackay's matter.
4. Failure by an Australian legal practitioner to comply with an order made by the Tribunal under the Legal Profession Act 2004 is capable of constituting unsatisfactory professional conduct or professional misconduct: s.4.4.4(f) of the Act.

1. Mr. Telehus did not attend this hearing. At the appointed time of 10.00 am, and again at 10.10 am, his name was called outside the hearing room, and enquiry was made of all persons in the vicinity of the hearing room, but he could not be found.
2. VCAT records show that two notices of today's hearing, one for each application and thus for each charge, were sent to Mr. Telehus by VCAT on 10 April 2008.
3. Evidence was given by Ms Angela Barac, an articled clerk employed at the office of the Commissioner. Ms Barac said that she telephoned Mr. Telehus on 28 April 2008, two days ago, both on his mobile telephone number and his office telephone number. She did not speak to him personally. She said that she left a voice message on his mobile telephone, and a message on his office telephone answering machine, informing him of today's hearing and asking whether he would be in attendance, and whether he would brief counsel.
4. Ms Barac said that she telephoned Mr. Telehus' office number on 29 April 2008, that is yesterday, and left a similar voice message. Also yesterday, she sent a letter by facsimile to the facsimile telephone number for Mr. Telehus, and by email to the email address of Mr. Telehus, informing him of today's hearing and attaching a copy of the notice of hearing. The letter was tendered in evidence.
5. Ms Barac said that Mr. Telehus did not respond to her enquiries in any way.
6. I was satisfied that Mr. Telehus would be aware of today's hearing, so I proceeded in his absence.

1. On 26 October 2007, the Tribunal made an order in the matter involving Mr. Prestipino: see Legal Services Commissioner v Telehus [2007] VCAT 1987 (being VCAT application J196/2007).
2. The Tribunal found Mr. Telehus guilty of three counts of professional misconduct. In relation to the "first charge", Mr. Telehus was ordered to produce his file to the Commissioner by 16 November 2007. In relation to the "second charge", Mr. Telehus was ordered to provide to the Commissioner by 16 November 2007 a full explanation of his conduct in relation to the subject matter of the complaint. In relation to the "third charge", Mr. Telehus was ordered to produce a different file to the Commissioner by 16 November 2007.
3. Mr. Telehus also was ordered to pay a fine of $3,000.00 to the Legal Services Board by 30 November 2007, and to pay $2,488.50 to the Commissioner by 30 November 2007 as her costs of the proceedings.
4. On the same date, 26 October 2007, the Tribunal made an order in the matter involving Mr. Mackay: see Legal Services Commissioner v Telehus [2007] VCAT 1982 (being VCAT application J197/2007).
5. The Tribunal found Mr. Telehus guilty of two counts of professional misconduct. In relation to the "first charge", Mr. Telehus was ordered to provide to the Commissioner by 16 November 2007 a full explanation of his conduct in relation to the subject matter of the complaint. In relation to the "second charge", Mr. Telehus was ordered to produce his file and trust account ledgers to the Commissioner by 16 November 2007.
6. Mr. Telehus also was ordered to pay a fine of $2,000.00 to the Legal Services Board by 30 November 2007, and to pay $2,194.50 to the Commissioner by 30 November 2007 as her costs of the proceedings.
7. In the present proceedings, it is alleged that Mr. Telehus failed in every respect to comply with the orders made on 26 October 2007, either by the dates specified or subsequently.

1. VCAT records show that a copy of the order made on 26 October 2007 in Mr. Prestipino's matter was posted to Mr. Telehus by VCAT on 1 November 2007. VCAT records show that a copy of the order made on 26 October 2007 in Mr. Mackay's matter was posted to Mr. Telehus by VCAT on 31 October 2007.
2. Ms Barac continued her evidence this morning by dealing with the matter involving Mr. Prestipino. She said that on 20 November 2007 she made telephone calls to the office and mobile telephone numbers for Mr. Telehus. She did not speak to Mr. Telehus, but she left messages in which she referred to the orders made on 26 October 2007 and the need to comply by 16 November 2007. She also asked Mr. Telehus to contact the office of the Commissioner, and informed him of two telephone numbers to which he could return her call. A file note made by Ms Barac in respect of these telephone calls is in evidence. Ms Barac said that Mr. Telehus did not call back.
3. Ms Barac said that on 21 November 2007 she sent a letter to Mr. Telehus by facsimile. The letter is in evidence. It is largely a repetition of the telephone messages left by Ms Barac on 20 November 2007 but, significantly, it attached a copy of the order made on 26 October 2007. A transmission report showing that the facsimile was successfully transmitted to the facsimile number for Mr. Telehus is in evidence.
4. Ms Barac said that on 21 January 2008 she sent another letter to Mr. Telehus by facsimile. This letter also is in evidence. The letter referred to the order made on 26 October 2007, and pointed out that copies of the order had been sent to Mr. Telehus by VCAT and by the Commissioner. It also pointed out that there had been no compliance. The letter then set out the steps that needed to be taken by Mr. Telehus in order to comply with the order. Finally, the letter stated that failure to comply with the order "may constitute professional misconduct in accordance with section 4.4.4(f) of the Legal Profession Act 2004", and that "Failure to comply ..... will leave me no alternative but to consider bringing a further charge of professional misconduct against you". A transmission report showing that the facsimile was successfully transmitted to the facsimile number for Mr. Telehus is in evidence.
5. Ms Barac referred to a letter from the Legal Services Board to the Legal Services Commissioner dated 20 March 2008, which stated that Mr. Telehus had not paid the fine of $3,000.00 imposed in Mr. Prestipino's matter. The letter is an annexure to the present charge in that matter.
6. Ms Barac then gave evidence about the matter involving Mr. Mackay. Her evidence was virtually identical to her evidence about Mr. Prestipino's matter, save that she dealt with the slightly different orders made in Mr. Mackay's matter. The telephone messages that she left on 20 November 2007 also dealt with Mr. Mackay's matter. She sent separate letters by facsimile to Mr. Telehus on 21 November 2007 and 21 January 2008 concerning Mr. Mackay's matter, but in substance the letters raised the same issues of non-compliance that she raised in the letters sent in Mr. Prestipino's matter. Again, transmission reports showing that the facsimiles were successfully transmitted to the facsimile number for Mr. Telehus came into evidence
7. Ms Barac referred to a separate letter from the Legal Services Board to the Legal Services Commissioner dated 20 March 2008, which stated that Mr. Telehus had not paid the fine of $2,000.00 imposed in Mr. Mackay's matter. That letter is an annexure to the present charge in Mr. Mackay's matter.
8. At the conclusion of her evidence, I asked Ms Barac whether she was aware of any compliance by Mr. Telehus with the orders made by the Tribunal on 26 October 2007, to which she replied "No".
9. Evidence also was given by Ms Penny Antonov, a solicitor at the office of the Legal Services Commissioner. Ms Antonov said that she spoke with Mr. Telehus by telephone on 19 March 2008. She said that Mr. Telehus stated that sometimes he had trouble receiving mail, but that he would have received anything sent to him by facsimile.

1. I find that Mr. Telehus received copies of the orders made by the Tribunal on 26 October 2007.
2. I find that Mr. Telehus has not complied with the orders in any respect.
3. Failure to comply with an order is capable of constituting unsatisfactory professional conduct or professional misconduct: s.4.4.4(f) Legal Profession Act 2004.
4. I have said in other matters that all relevant factors should be taken into account in determining whether conduct amounts to unsatisfactory professional conduct or professional misconduct. Ultimately, a consideration of those factors leads to a determination as to whether the conduct is of such a degree of seriousness that it amounts to misconduct rather than unsatisfactory conduct.
5. Mr. Telehus did not bring any relevant factor to the attention of the Tribunal. He did not attend this hearing, and he was not represented. The Tribunal did not receive any written submission from him.
6. Ms Antonov did mention that, when she spoke with Mr. Telehus on 19 March 2008, he stated that he has the full time care of his elderly mother. Furthermore, it is possible that Mr. Telehus does not have sufficient funds to pay the fines and the costs that he was ordered to pay by 30 November 2007. I have taken these possible factors into account, but they do not excuse Mr. Telehus for his failure to provide explanations of his conduct, and to provide files and trust account ledgers, by 16 November 2007 or subsequently.
7. I find that the continuing failure to comply with the orders requiring the provision of explanations and documents, quite apart from the failure to pay fines and costs, is of such a degree of seriousness as to amount to professional misconduct. The delay in compliance, which continues, is far too long. Furthermore, there is nothing which indicates that compliance might be difficult.
8. I find Mr. Telehus guilty of two counts of professional misconduct as defined by s.4.4.4(f) of the Legal Profession Act 2004, in that he failed to comply with two orders made by the Tribunal on 26 October 2007.

1. A person who lodges a complaint about a legal practitioner is entitled to a prompt response. The Legal Services Commissioner is unlikely to have knowledge of the subject matter of the complaint, other than the information set out in the complaint. The Act therefore empowers the Commissioner to seek an explanation of the practitioner's conduct, and to seek information or documents from the practitioner: see s. 4.4.11 of the Act. These powers have been entrusted to the Commissioner and her predecessors for many years, and almost all practitioners are well aware of their existence.
2. Furthermore it would be unfair, and a denial of procedural fairness, if the Commissioner took action against a practitioner without giving the practitioner an opportunity to explain. A failure to provide an explanation, as in the present cases, hinders an investigation and causes delay in dealing with a complaint. A failure to provide documents, as in these cases, has the same effect.
3. Mr. Prestipino lodged his complaint on 23 December 2005. Mr. Mackay lodged his complaint on 3 May 2007. The Commissioner made several requests for explanations and documents prior to 26 October 2007, to no avail. In fairness to Mr. Telehus, I must add that there do appear to have been periods of delay in the office of the Commissioner. However, the point is that Mr. Telehus was aware of the requirements of the Commissioner well before orders were made on 26 October 2007 imposing the same requirements. His failure to comply with the orders for a further six months is virtually inexcusable.
4. Compliance with the law relating to legal practitioners, including compliance with orders made by the Tribunal under the Legal Practice Act, is part of legal practice. The non-compliance of Mr. Telehus in these matters is conduct that warrants an order depriving Mr. Telehus of his right to practise, and I intend to make such an order. However, the main aim of proceedings of the present kind is to obtain explanations, or information, or documents, not to impose fines or deprive practitioners of their right to practise. With that in mind, I intend to give Mr. Telehus some incentive to comply with the orders made on 26 October 2007.
5. I will make orders that have the effect of depriving Mr. Telehus of any form of practising certificate for a period of seven months. That period will run from 1 June 2008 to 31 December 2008 (both dates inclusive). However, if Mr. Telehus complies by 31 May 2008 with paragraph four of the order made in Mr. Prestipino's matter and paragraph three of the order made in Mr. Mackay's matter (being those parts of the orders made on 26 October 2007 which require Mr. Telehus to provide explanations and documents to the Commissioner) a practising certificate may be issued to Mr. Telehus on or after 1 September 2008.
6. If a dispute arises as to whether Mr. Telehus has complied by 31 May 2008, the Commissioner or Mr. Telehus may apply in writing to the Tribunal requesting that the Tribunal reconvene and make a determination as to compliance.
7. Mr. Telehus is to pay to the Legal Services Commissioner by 31 May 2008 her costs of applications J067/2008 and J068/2008, fixed by the Tribunal at a total of $2,214.60.