1. Mr Telehus is found guilty of 27 charges of professional misconduct.
2. By 4.00 pm on 20 December 2013, Mr Telehus is to file with the Principal Registrar of the Tribunal and serve on the Legal Services Commissioner, any written submission and any evidence he wishes to put before the Tribunal as to the sanctions which should be imposed as a result of these findings, or alternatively, to advise the Tribunal that he seeks an oral hearing in relation to that matter.
3. Liberty to apply.

1. In this proceeding the applicant (LSC) has brought a smorgasbord of charges against Mr Nicholas Telehus, a solicitor, relating to the conduct of his practice, LaTrobe Legal in Morwell, from 2003. Although he ceased to hold a practising certificate on 1 June 2008, the charges also relate to conduct after that date.
2. There are 29 charges of professional misconduct under the Legal Profession Act 2004 (the Act). In summary, they allege:
   • Failure to pass on $34,765.40 received on behalf of a client, and instead, taking that money for his own purposes.
   • Failure to provide a bill to that client, or to explain the basis on which he claimed $18.274.70 in fees.
   • Failure to pass on $1,447 to another client, causing a trust account deficiency, and failing to take action required in the interests of that client.
   • Claiming at a meeting of the Walhalla Goldfields Railway Board of Management in 2011 that he was entitled to practise as a lawyer, when not so entitled.
   • Tax offences, including failure to lodge income tax and GST returns, and failing to comply with subsequent court orders to do so.
   • Failing to notify the Legal Services Board of court findings of guilt against him in relation to those tax offences.
   • Making false statutory declarations in three separate applications for practising certificates, between 2007 and 2011, by failing to disclose that he had been found guilty of tax offences, or understating the extent of those findings.
   • Failing to respond to statutory requests by the LSC for information about a number of the above matters.
3. Despite being served personally with notification of the hearing, Mr Telehus chose not to attend. On 27 August 2013, he was personally served at his home in Newborough, with:
   1. A copy of the LSC's application to VCAT for orders to be made against him dated 12 April 2013.
   2. A copy of an order made by VCAT on 26 July 2013, setting the matter down for a hearing on 24 September 2013.
   3. A letter from the LSC dated 20 August 2013. This recited various notifications sent by the LSC to Mr Telehus in relation to steps in the VCAT proceeding. It also stated that if he did not attend the VCAT hearing on 24 September 2013 and he had not contacted VCAT or the LSC before that date, the matter would be heard in his absence. It stated that should the LSC succeed in proving the charges brought against him, it would submit that VCAT should make an order that the matter be referred to the Supreme Court for his name to be removed from the roll of legal practitioners.
4. On 13 September 2013, Mr Telehus was personally served with 11 witness statements relied on by the LSC in this proceeding.
5. In light of the proof of personal service of these documents on Mr Telehus, I made a ruling that this hearing proceed in Mr Telehus' absence, even though the allegations against him are extremely serious.
6. The LSC led evidence in order to prove each charge brought, which I deal with below.
7. Mr Telehus held a principal practising certificate from 1 August 2003 to 1 June 2008. From 8 December 2003 to 1 June 2008, he was authorised to receive trust money.
8. Insofar as the charges against Mr Telehus relate to the period after 1 June 2008, Mr Telehus remains liable for his conduct, the LSC retains power to investigate and bring the charges, and VCAT retains the jurisdiction to determine them, under s 4.1.2 and s 4.1.3 of the Act.
9. The charges brought allege professional misconduct under s 4.4.3 of the Act. The charges are in three categories:
   • Substantial failure to reach or maintain a reasonable standard of competence and diligence.
   • Conduct indicating the practitioner is not a fit and proper person to engage in legal practice.
   • Misconduct at common law.
10. Misconduct at common law remains as a basis on which charges may be brought because 'professional misconduct' is defined inclusively in s 4.4.3. It is well accepted that professional misconduct at common law is constituted by conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable[1].
11. Sections 4.4.2 and 4.4.3 of the Act state:

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.

(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.

Section 4.4.4 specifies conduct that is capable of constituting professional misconduct and section 4.4.6 specifies conduct that constitutes professional misconduct.

(2) For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.

1. Two of the charges under s 4.4.3(1)(a) allege breaches of s 4.4.11. That is the provision empowering the LSC to require a practitioner who is subject to an investigation to provide information to the LSC.
2. Nine of the 29 charges are alternative charges. The following charges are alternatives to each other: charges 1 and 2, 3 and 4, 11 and 12, 16 and 17, 18 and 19, 20 and 21, 24 and 25, 26 and 27 and finally, 28 and 29. Mr Matthews, for the LSC, sought that a finding be made in relation to all of the charges, so that in the event any particular charge is overturned on appeal, the finding on the alternative charge may apply. Otherwise, if the charges are proved, the practitioner should only receive a penalty or sanction for one of the alternative charges in relation to each of those nine pairs of changes.
3. During the course of the hearing, the LSC sought to amend a number of the charges, and to delete charge 10. These requests arose as a result of discussion and during the hearing as to the application of the proofs to some of the charges. In some instances, the LSC sought to narrow down the scope of matters alleged in order to simplify the case against Mr Telehus. Also, a date was amended in charge 9. I agreed to these amendments on the basis that they merely narrowed the allegations against Mr Telehus; nothing new was alleged.

1. In late 2005, Ms Gillian Godfrey retained Mr Telehus to act for her in relation to the administration of the estate of her mother, Julie Godfrey. Ms Godfrey produced a witness statement, and gave oral evidence. Ms Godfrey said Mr Telehus did not provide her with, or ask her to sign, a costs disclosure statement in relation to her mother's estate. Nor did she receive any update as to costs from him, nor any updated costs disclosure.
2. In May 2006, Mr Telehus advised Ms Godfrey that her mother's house had been sold.
3. The next relevant event which occurred was in March 2009. From 1 June 2008, Mr Telehus had ceased to hold a practising certificate.
4. On or about 10 March 2009, Ms Godfrey received a second letter signed by Mr Telehus, on LaTrobe Legal letterhead. This letter was dated 1 December 2008. Ms Godfrey believed she received it from a source other than Mr Telehus, perhaps from Mr Kevin Jennings, an inspector from the Professional Standards Division of the Law Institute of Victoria, who by this stage had become involved in investigating Mr Telehus' practice. Ms Godfrey said the letter dated 1 December 2008 was the closest thing she received to a bill for the work done on her mother's estate. It comprised what appeared to be a trust account statement indicating that the sum of $87,805.50 had been received as the balance of the proceeds of the estate realisation, and that this had been disbursed as follows:

LaTrobe legal - professional fees (March 2006 to 30 June 2008)

Pamela Godfrey (To Rickards lawyers as per Garnishee order)[2]

1. At about the same time, Ms Godfrey received a cheque from Mr Jennings dated 26 September 2008 in the sum of $34,765.40 from LaTrobe Legal solicitors payable to Rickards Lawyers. In a covering letter dated 10 March 2009 Mr Jennings advised Ms Godfrey that cheque had been mailed to him by Mr Telehus in error, and because of the difficulty in contacting Mr Telehus, Mr Jennings was forwarding it to Ms Godfrey. He requested that as executor, she deal with the cheque.
2. Ms Godfrey said shortly that after she forwarded the cheque to Rickards Legal, who she understood were solicitors for a creditor of her sister, Pamela Godfrey. With it she also forwarded a letter dated 25 February 2009 on LaTrobe Legal letterhead addressed to Rickards Legal. It appears this had been drafted by Mr Telehus with the intention of sending it to Rickards Legal with the cheque, however, as events transpired, letter was sent to Rickards Legal, together with the cheque, by Ms Godfrey instead. The letter stated that the cheque for $34,765.40 was enclosed and that particulars of the sale of Ms Godfrey's mother's house and the legal fees of the solicitors who had acted in that sale would be provided to Rickards Legal as soon as the balance of the file was retrieved from storage. It expressed regret at the delay in finalising the file.
3. Ms Godfrey said that while she passed on the cheque for $34,765.40 for her sister's share, she never received her own payment of $34,765.40 from Mr Telehus.
4. On 26 May 2009 Ms Godfrey lodged a complaint with the LSC.
5. Four years later, on 11 April 2013, apparently out of the blue, Ms Godfrey received an Australia Post express post envelope addressed to her. Inside was an ANZ Bank Moe Branch bank cheque for $16,000.00 an undated handwritten letter which she believes was from Mr Telehus. This stated:

I sincerely regret the delay in forwarding you this repayment.

The balance with interest will be sent on or before 31 July 2013.

1. Ms Godfrey said in her oral evidence that she has not received any further payment. She said she had subsequently made a claim on the fidelity fund and had received the balance of her money, but no interest.
2. She said she had never given Mr Telehus any authority to take or borrow her money. She said that her failure to receive the money due to her from the estate had contributed to her depression.
3. The LSC also relied on statements from several other witnesses in relation to the Godfrey matter. It produced a statement from Mario Merlo, a solicitor and formerly the principal of a legal practice 'MMR Legal'. MMR Legal acted for LaTrobe Capital Mortgage Corporation Limited in respect of a debt owed by the estate of Julie Godfrey to that corporation. Mr Merlo confirmed that on 17 September 2008, he forwarded a cheque in the sum of $87,805.50 to Mr Telehus at LaTrobe Legal Lawyers, being the balance of funds from the sale of Julie Godfrey's property after the debt to the corporation and associated fees had been paid.
4. The LSC also produced a statement from Selvije Lika, a business analyst of the ANZ bank. This attached copies of bank statements from two accounts held relating to Mr Telehus:
   • ANZ account no. 108 505 561 in the name of Nicholas Telehus trading as LaTrobe Legal - from 1 September 2008 to 18 January 2010. Nicholas Telehus was the only signatory to this account. Described in the statements as a 'business classic' account, this was the practice's office account.
   • Statements for ANZ account no. 107 822 864 in the name of Nicholas Telehus trading as LaTrobe Legal Solicitors - from 1 September 2008 to 31 December 2009. Nicholas Telehus was the only signatory to this account. The bank statements described this as a 'statutory trust account'. They indicate only three transactions on this account during that period: a debit of $105,333.97 on 1 September 2008 and then two debits totalling $110 on 31 December 2008. These three debits left this account with a zero balance. The statements show this zero balance remaining, and no activity on this account through to 31 December 2009.
5. The office account statements record receipt of the sum of $87,805.50 (bringing the balance of this account to $88,065.16) on 26 September 2008 and a debit of $34,765.40 on 15 April 2009, which presumably relates to the presentation of the cheque sent to Rickards Legal for Ms Pamela Godfrey's share of the estate.
6. Other than that, the office account statements record what appear to be withdrawals for business or personal expenses. Over the period 26 September 2008 to 18 January 2010 there were numerous withdrawals by way of electronic transfers, ATM withdrawls and what appear to be payments for groceries, hardware, petrol, computer services and other things. Money was deposited into the account on only five occasions (with the total amount deposited being $18.881.93). By 18 January 2010, the balance had been whittled down to $472.80.
7. The LSC also produced a witness statement by Christine Bell of the Legal Services Board (LSB) relating to the records held about the practising history of Mr Telehus. These confirmed that he has held practising certificates of various types from 16 June 2003 to 1 June 2008. From 1 August 2003 to 1 June 2008, he was a sole practitioner practising under the name of LaTrobe Legal. The trust account for that firm was ANZ account no. 107 822 864. This account was open from 5 December 2003 to 19 August 2010.
8. Finally, the LSC relied upon a witness statement of Maria-Pina Smith, an LSC investigations officer. She stated that the LSC had sent letters to Mr Telehus seeking a written explanation of his conduct in relation to the Godfrey matter under s 4.4.11(a) and (b) of the Act on the following dates:
   • 15 July 2009 (personally served on Mr Telehus)
   • 6 June 2011 (sent by registered mail with confirmation of receipt received by the LSC)
   • 15 August 2011 (sent by registered mail with confirmation of receipt received by the LSC)
   • 6 October 2011 (sent by Mr Telehus' email and mail with electronic confirmation of delivery of the email address being provided)
9. Ms Smith said no written response was received from Mr Telehus to any these letters.
10. The LSC brought six charges against Mr Telehus arising out of the Godfrey complaint:

Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act in that between 26 September 2008 and 22 May 2009 the Respondent, without reasonable excuse, caused a failure to pay or deliver to Ms Gillian Godfrey the sum of $34,765.54.

Further and alternatively to charge 1, professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that the Respondent engaged in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable namely his conduct between 26 September 2008 and 22 May 2009 in causing a failure to pay or deliver to Ms Gillian Godfrey the sum of $34,765.54.

Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act in that between 26 September 2008 and 31 December 2009 the Respondent caused the disbursement of $34,765.54, which sum should have been paid or delivered to Ms Gillian Godfrey, where Ms Gillian Godfrey had not authorised any disbursement of these monies.

Further and alternatively to charge 3, professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that the Respondent engaged in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable namely his conduct in causing between 26 September 2008 and 31 December 2009 the disbursement of $34,765.54, which sum should have been paid or delivered to Ms Gillian Godfrey, where Ms Gillian Godfrey had not authorised any disbursement of these monies.

Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that from on about 1 December 2008 to the present the Respondent has not explained adequately or at all to Ms Gillian Godfrey the basis for charging $18,274.70 legal costs.

Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that between 15 July 2009 and the present the Respondent has failed to provide the Applicant with documents, records and an explanation relevant to the investigation into a complaint made against the Respondent by Ms Gillian Godfrey, contrary to sections 4.4.11(1)(a) and (b) of the Act.

1. Charges 1 and 2 allege that Mr Telehus caused a failure to pay Ms Godfrey the sum of $34,765.54 from her mother's estate. The period specified is from 26 September 2008 (the day the money was received) to 22 May 2009 (being on or about the day when Ms Godfrey lodged her complaint with the LSC). I accept Ms Godfrey's evidence to the effect that she did not receive this payment. The bank records produced are consistent with this. I also accept that the payment of $16,000.00 to Ms Godfrey and the covering note on 11 April 2013 can be regarded as an admission by Mr Telehus that this money was not paid, and was owing to Ms Godfrey. Accordingly I find the facts in charges 1 and 2 proved: Mr Telehus did cause a failure to pay or deliver to Ms Godfrey the sum of $34,765.54.
2. Charges 3 and 4 allege the disbursement of the sum of $34,765.54 by Mr Telehus without Ms Godfrey's authorisation. In the light of the bank records produced, I find that Mr Telehus did so disperse those monies.
3. In Legal Services Board v McGrath[3], Warren CJ referred with approval to a formulation which requires that to be a fit and proper person, a practitioner must be possessed of sufficient moral integrity and rectitude of character to be accredited to the public, without further inquiry, to be entrusted with the sort of work which the licence entails. In the oft quoted High Court decision of Hughes and Vale Pty Ltd v New South Wales[4] honesty is the first of the three requirements specified for a person to be 'fit and proper'.
4. Taking a client's funds is self-evidently a fundamental breach of a solicitor's professional responsibilities. I conclude from the evidence that Mr Telehus consciously decided to take his client's money, despite the fact he held it on trust for her. Trust accounts are sacrosanct. In the circumstances, this renders him not a fit and proper person. There is no basis on which it can be suggested that this does not remain the case today.
5. For the same reasons, I find that Mr Telehus' conduct constitutes misconduct at common law. Taking clients' money is self-evidently disgraceful and dishonourable conduct.
6. Accordingly, I find charges 1,2,3 and 4 proved.
7. Charge 5 alleges that Mr Telehus did not explain to Ms Godfrey the basis on which he charged her $18,274.70 legal costs. This allegation is clearly made out on the basis of Ms Godfrey's evidence, the only information she received was the simple statement that this sum had been taken, referred to above.
8. Given that Mr Telehus did not hold a practising certificate after 1 June 2008, the LSC did not allege a breach of any of the provisions of parts 3.3 and 3.4 of the Act, which set out requirements practitioners must comply with relating to billing, and taking clients' money from trust to pay fees. The LSC simply put the case on the basis that Mr Telehus' failure to explain to Ms Godfrey the basis for taking the $18,274.70 constituted unsatisfactory professional conduct, which involves a substantial failure to reach a reasonable standard of competence and diligence (this being a part of Chapter 4 of the Act, which continues to apply to Australian lawyers, even where they no longer hold a practising certificate, by virtue of section 4.1.3 of the Act). The 'substantial' element takes it from being just unsatisfactory professional conduct, and makes it professional misconduct.
9. Given the absence of a costs agreement, and the fact that Mr Telehus held Ms Godfrey's money on trust, it was a substantial failure to reach a reasonable standard of competence and diligence for him simply to take the money, without further explanation, in the circumstances here. It was only after five months had elapsed from when Mr Telehus received the money that the client was told he had taken it. Even then, this information only came to the client through the agency of a third party. Accordingly, I find charge 5 proved.
10. In relation to charge 6, I accept the evidence of Ms Smith, that Mr Telehus was required on four occasions to produce information to the LSC under s 4.4.11 of the Act, but has failed to respond to any of these letters. The LSC was required to make additional steps to ensure it could be satisfied Mr Telehus had received its requests, due to his non-responsiveness. It is important that practitioners (and former practitioners) comply with requests made under s 4.4.11 for information in response to complaints or investigations, so it is able to carry out its function of protecting the public. A failure to respond has frequently been found to comprise professional misconduct. It may only be unsatisfactory professional conduct in some circumstances,[5] but here, given the seriousness of the matters being investigated, and Mr Telehus' failure to respond to multiple requests over a prolonged period, here it is professional misconduct. I find charge 6 proved.

1. The LSC filed a witness statement by Mr Gregory Stewart. Mr Stewart also gave oral evidence. In late 2004 or early 2005 Mr Stewart engaged Mr Telehus to act for him in relation to a claim against the then bankrupt estate of a Mr Ian Duncan. Mr Stewart said he had been the partner of Mr Duncan in relation to a used car sales business. The business ceased to operate on 31 January 2002. Mr Stewart sought his share of the proceeds of the business. He said he gave Mr Telehus instructions to make a claim against the bankrupt estate of Mr Duncan in the amount of $313,500 on his behalf. He said he paid Mr Telehus' fees, including fees for a barrister, in advance. He said he never received an account or tax invoice from Mr Telehus.
2. Mr Stewart said he terminated Mr Telehus' retainer and picked up his paperwork from Mr Telehus in November 2008. This was because nothing was happening on his file and he kept having to chase up Mr Telehus. At one point, Mr Telehus told him that his case had been adjourned for six months. Mr Stewart said that towards the end, he was just getting the answering machine. He couldn't find Mr Telehus. At one stage he left a letter at Mr Telehus' office. He noted that the mail was piling up at the office. He said in his last conversation with Mr Telehus he was told he had won his case. However, he did not receive any money.
3. Mr Stewart said in that in November 2008 he received a letter dated 26 November 2008 from Mr White of HLB Mann Judd Accountants, the trustee of Mr Duncans' bankrupt estate (Trustee). From the evidence of Mr Stewart, and from the witness statement of Mr Steven Michell (a partner of the firm formerly known as HLB Mann Judd) it is apparent that the following events had occurred:
   • On 8 December 2004, Mr Telehus sent a proof of debt form on behalf of Mr Stewart making a claim of $313,500.
   • On 22 December 2004 the Trustee issued a 'Notice that further evidence is required in respect of the proof of debt'. This was sent to Mr Telehus. It required a response by no later than 24 January 2005.
   • On 19 January 2005 Mr Telehus was telephoned by Mr Claude Trimboli of the Trustee. A message was left.
   • On 21 January 2005, Mr Trimboli again telephoned Mr Telehus, who advised that he would reply to the Trustee's letter of 22 December 2004 by 24 January 2005.
   • The Trustee did not receive any further information from Mr Telehus.
   • Mr Telehus did not communicate with Mr Stewart about these matters.
   • On 16 February 2005, the Trustee issued a notice stating that Mr Stewart's claim had been largely rejected. It was admitted only to the extent of $1,447. This letter was sent to LaTrobe Legal by registered post.
   • On 10 June 2005 the Trustee paid the first and final dividend to creditors of Mr Duncans' bankrupt estate and a bank cheque in the amount of $1,447 in favour of Mr Stewart was posted to LaTrobe Legal.
4. The bank statement of Mr Telehus' office account shows a deposit in the sum of $1,447 over four months later, on 31 October 2005.
5. Mr Stewart said Mr Telehus had not told him that he had received the cheque for $1,447, nor did he seek any further instructions from Mr Stewart. Mr Stewart stated he has never received that money.
6. The evidence of Ms Smith was that letters were sent, or attempted to be sent to Mr Telehus requiring a provision of information under s 4.4.11 of the Act in relation to the Stewart complaint as follows:
   • 20 March 2009 - returned, marked 'returned to sender'
   • 1 May 2009 - sent by registered mail to three separate addresses, two of which were returned marked 'returned to sender'
   • 17 December 2009 - attempts were made to serve Mr Telehus personally but all attempts were unsuccessful
   • 6 June 2011 - letter sent by registered mail - confirmation of delivery received
   • 15 August 2011 - letter sent by registered mail - confirmation of delivery received
   • 6 August 2011 - letter emailed and mailed to Mr Telehus - electronic confirmation of delivery to Mr Telehus' email addressed provided.
7. The LSC brought seven charges against Mr Telehus in relation to the Stewart complaint:

Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that between 22 December 2004 and 24 January 2005 the Respondent failed to respond on behalf of his client Mr Gregory Stewart to a request for information by HLB Mann Judd, this response being a necessary step in carrying out Mr Stewart's instructions in a matter involving HLB Mann Judd in which the Respondent was acting for Mr Stewart.

Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that on or about 30 June 2005 the Respondent failed to pay trust money into a general trust account of his practice as soon as practicable after receiving this trust money, contrary to section 3.3.13(1) of the Act.

Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that on or about 30 June 2005 the Respondent caused a deficiency in a general trust account of his practice without reasonable excuse contrary to section 3.3.21(1)(a) of the Act.

Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act in that between 10 June 2005 and 1 June 2008 the Respondent, without reasonable excuse, caused a failure to pay or deliver trust money to Mr Gregory Stewart contrary to section 3.3.21 (1)(b) of the Act.

Further and alternatively to charge 11, professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that between 10 June 2005 and 1 June 2008 the Respondent engaged in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable namely his conduct in causing a failure to pay or deliver trust money to Mr Gregory Stewart without reasonable excuse contrary to section 3.3.21(1)(b) of the Act.

Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that between 10 June 2005 and 1 June 2008 the Respondent failed to furnish a trust account statement to his client Mr Gregory Stewart as required by Regulation 3.3.28(1) of the Legal Profession Regulations 2005.

Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that between 20 March 2009 and the present the Respondent has failed to provide to the Applicant a full written explanation of his conduct relevant to the investigation into a complaint made against the Respondent by Mr Gregory Stewart, contrary to section 4.4.11(1)(a) of the Act.

1. In relation to charge 7, I find that Mr Telehus failed to respond to the request by the Trustee. It is clear from Mr Trimboli's note that Mr Telehus was aware of the request. The importance of compliance would have been apparent to Mr Telehus in terms of protecting the interests of his client. It is not clear the extent to which his client was disadvantaged from Mr Telehus' inaction, and I make no assumptions about this. Regardless of this, in the circumstances, it is clear that his failure to respond, having been instructed to do so by Mr Stewart, comprised a substantial failure to reach or maintain a reasonable standard of competence and diligence.
2. Charge 8 alleges that Mr Telehus failed to pay the sum of $1,447 into his trust account as soon as practicable after receiving this trust money. The evidence was that the cheque for $1,447 was sent to Mr Telehus on 10 June 2005. Charge 8 allows several weeks for him to deposit the cheque in his trust account. The LSC produced the records of Mr Telehus' trust account no. 107 822 864 for the period 10 June 2005 to 29 December 2005. These were attached to a witness statement by Harsha Maligaspe, Business Analyst, of the Australian and New Zealand Banking Group Ltd. They disclosed the sum of $1,447 was not deposited in the trust account during that period.
3. There is a record of a deposit four months later in Mr Telehus' 'business classic' account of $1,447. I was told by Mr Matthews that the LSC's enquiries indicated this was not in the form of a single bank cheque, but rather a number of cheques plus cash. The LSC had not been able to track down any connection between the deposit into the office account and the receipt of the bank cheque for $1,447. In any event if that payment of 31 October 2005 into the office account does relate to the $1,447 paid by the trustee to Mr Telehus on 10 June 2005, that is inconsistent with the money being paid into his trust account.
4. On the basis of the trust account bank statements, I find charge 8 proved. This is a breach of section 3.3.13(1) of that provision creates an offence with a penalty of 120 penalty units. Accordingly, Mr Telehus' failure to pay $1,447 into his trust account clearly involves a substantial failure to reach or maintain a reasonable standard of competence and diligence.
5. Charge 9 alleges that Mr Telehus caused a deficiency in his general trust account without a reasonable excuse by failing to pay the $1,447 into his trust account. The LSC sought to amend this charge so that it alleged that the trust account deficiency occurred on or about 30 June 2005. In its original form, it alleged this occurred on or about 31 October 2005. This amendment arose out of the uncertainty in relation to what happened to the $1,447 bank cheque which was sent to Mr Telehus on 10 June 2005, referred to in relation to charge 8.
6. I allowed the LSC to amend charge 9 in that way, because in my view the change is minor and did not prejudice Mr Telehus. It is clear on the evidence that having received the sum of $1,447 on trust, and not crediting it to his trust account, Mr Telehus caused a deficiency under section 3.3.21(1)(a) of the Act. While the deficiency still existed on 31 October 2005, it is more correct to say that it occurred from on or about 30 June 2005.
7. I find charge 9 proved. Having a deficiency in a trust account is a serious offence under section 3.3.21 of the Act, attracting a maximum penalty of 15 years imprisonment. Mr Telehus' breach clearly constitutes a substantial failure to reach a reasonable standard of competence and diligence.
8. Charge 10 was withdrawn by the LSC. It alleged the mixing of trust monies with other money. It was withdrawn because the LSC's further investigations into the payment of the sum of $1,447 into the office accountant on 31 October 2005 did not reveal any connection with the receipt by Mr Telehus of that sum from the Trustee on 10 June 2005, in the circumstances described above.
9. Charge 11 alleges that over the three year period from June 2005 to June 2008, the respondent failed to deliver the $1,447 trust monies to Mr Stewart. The evidence of Mr Mitchell shows that the money was sent. The evidence of Mr Stewart shows that it was not received during that period. In fact it has never been received. No reasonable excuse was proffered. Hence, I find the facts constituting charge 11 proved. The same applies to the alternative charge, charge 12.
10. For the same reasons as apply to charges 1-4, I find the elements of not fit and proper, and misconduct at common law, are satisfied here. Accordingly, I find charges 11 and 12 proved.
11. Charge 13 alleges that Mr Telehus failed to provide Mr Stewart with a trust account statement. I accept Mr Stewart's evidence that no statement was provided. This is a breach of regulation 3.3.28(1). Any breach of statutory requirements relating to the handling of clients' trust monies is regarded as a serious matter, due to the high level of responsibility which goes with the handling clients' monies held on trust. This breach comprises a substantial failure to reach or maintain a reasonable standard of competence and diligence by Mr Telehus. Charge 13 is proved.
12. Charge 14 alleges that Mr Telehus failed to provide a full written explanation of his conduct regarding the Stewart matter, despite six requests being made under section 4.4.3.11 that he do so. Ms Smith's witness statement confirms the dispatch of those requests and the fact that no written response was received. My comments in relation to charge 6 apply equally here: Mr Telehus' non-response constitutes professional misconduct. I find charge 14 proved.

1. The LSC also makes the allegation that over three years after he had ceased to hold a practising certificate, Mr Telehus falsely stated that he was entitled to engage in legal practice.

Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that on 19 October 2011 the Respondent represented to persons attending a meeting of the Walhalla Goldfields Railway Board of Management that he was entitled to engage in legal practice and at the time he was not an Australian legal practitioner, contrary to section 2.2.3(1) of the Act.

1. The LSC relied on the written and oral evidence of Mr Phillip Kamay. He is the Vice-president of the Walhalla Goldfields Railway (WGR). He said that at the AGM of WGR on 24 September 2011, a successful motion was moved to expel Mr Telehus and two others as members of the organisation. Those three were invited to attend the next meeting of the Board of the WGR to explain why they should not be expelled.
2. The next board meeting of the WGR was on 19 October 2011. Mr Kamay chaired the meeting. Also, a recording of what occurred at the meeting was made. Mr Telehus attended the meeting, together with the other two members in fancy dress: he as a long haired hippy, and the others as a witch and a court jester.
3. Mr Kamay stated that during the meeting Mr Telehus on three occasions made statements to the effect that he was a legal practitioner with a current practising certificate. In response to each of the following three questions put to him at different times during the meeting, Mr Telehus answered 'yes':
   • You are a legal practitioner aren't you?
   • You are currently a licensed certified practitioner?
   • I understand that you have clarified for the Board that you are a certified, practising, licensed legal opractitioner as we stand here and speak today?
4. The evidence given by Mr Kamay relating to the conduct of the meeting was corroborated by the affidavit of Suzanne Campbell, who was the treasurer of the WGR during the period 2008 to April 2013.
5. In relation to charge 15, Ms Smith's evidence was that the LSC had sent letters to Mr Telehus requiring a written explanation of his alleged conduct, on 4 October 2012 and 26 November 2012. No response was received to either.
6. Section 2.2.3(1) states:

(1) A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner.

1. In s 1.2.3, Australian Legal Practitioner is relevantly defined as an Australian lawyer who holds a current local practising certificate.
2. I accept Mr Kamay's evidence of the statements made by Mr Telehus at the meeting. In the light of this, and Ms Smith's evidence (that he had not held a practicing certificate since 1 June 2008) I find that Mr Telehus breached s 2.2.3 of the Act by making those statements. I further find that in light of the penalty applicable this is a serious matter and does indeed involve a substantial failure to reach or maintain a reasonable standard of competency and diligence. I find charge 15 proved.

Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act in that on 1 September 2006 the Respondent failed to comply with requirements of the Deputy Commissioner of Taxation that he furnish income tax returns for the financial years ending 30 June 1997 to 30 June 2005 inclusive.

Further and alternatively to charge 16, professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that the Respondent engaged in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable namely his conduct in failing to comply with requirements of the Deputy Commissioner of Taxation that he furnish income tax returns for the financial years ending 30 June 1997 to 30 June 2005 inclusive.

1. In support of its allegation that Mr Telehus did not furnish income tax returns for those nine years, the LSC provided charge sheets dated 8 February 2007 relating to nine alleged breaches of s 8C(1)(a) of the Taxation Administration Act 1953 (Cth). These alleged, in relation to each of the years ending 30 June 1997 to 30 June 2005, that Mr Telehus had failed to file tax returns, contrary to notices in writing issued by the Deputy Commissioner of Taxation on 7 July 2006. The LSC provided certified extracts dated 4 September 2007 relating to findings of guilt on those nine charges. It also provided a copy of part of the Order made on 4 September 2007 by the LaTrobe Valley Magistrates' Court under s 19B of the Crimes Act 1914 (Cth) imposing a 12 month good behaviour bond. This recited that the charges were found proved. It also ordered that those tax returns be lodged within 56 days.
2. In addition, I note that Mr Telehus admitted in his application for a practising certificate dated 28 February 2011, that he failed to lodge his tax return in 2005 (see below).
3. In the light of the court findings, I find the facts of charges 16 and 17 proved.

Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act in that between 12 December 2005 and 29 July 2006 the Respondent failed to lodge GST returns for the tax quarters ending 31 December 2003, 31 March 2004, 30 June 2004, 30 September 2004, 31 December 2004, 31 March 2005, 30 June 2005, 30 September 2005, 31 December 2005, 31 March 2006 and 30 June 2006 when and as required by section 31-5 of the A New Tax System (Goods and Services Tax) Act 1999.

Further and alternatively to charge 18, professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that the Respondent engaged in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable namely his conduct in failing between 12 December 2005 and 29 July 2006 to lodge GST returns for the tax quarters ending 31 December 2003, 31 March 2004, 30 June 2004, 30 September 2004, 31 December 2004, 31 March 2005 30 June 2005, 30 September 2005, 31 December 2005, 31 March 2006 and 30 June 2006 when and as required by section 31-5 of the A New Tax System (Goods and Services Tax) Act 1999.

1. These two charges as originally put by the LSC specified an earlier commencement period for the conduct: 29 January 2004. Mr Mathews sought to amend them so that they refer to conduct commencing on 12 December 2005 instead, being the date on which the Act came into operation. He said this was to avoid any of the complexities associated with the operation of the transitional provisions, dealt with in Legal Services Commissioner v Booth[6]. I allowed that amendment to be made to charges 18 and 19. The duty to file GST returns is ongoing - it continued after the point at which the new Act came into force. Thus the conduct of the subject of these two charges is not altered, the charge simply specifies a later starting point for that ongoing conduct.
2. In support of its allegation that Mr Telehus did not furnish GST returns for those 11 quarters, the LSC provided charge sheets dated 8 February 2007 relating to 11 alleged breaches of s 8C(1)(a) of the Taxation Administration Act 1953 (Cth). It provided certified extracts dated 4 September 2007 relating to findings of guilt on those 11 charges. Again, the LSC also provided a copy of part of the Order made on 4 September 2007 by the LaTrobe Valley Magistrates' Court under s 19B of the Crimes Act 1914 (Cth) imposing a 12 month good behaviour bond. This recited that the charges were found proved. It also ordered that those tax returns be lodged within 56 days.
3. In the light of the court findings, I find the facts of charges 18 and 19 proved.

Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act in that on 31 October 2007 the Respondent failed to comply with orders made by the Magistrates' Court at the Latrobe Valley on 4 September 2007 requiring that he furnish income tax returns for the financial years ending 30 June 1997 to 30 June 2005 inclusive.

Further and alternatively to charge 20, professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that the Respondent engaged in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable namely his conduct on 31 October 2007 to comply with orders made by the Magistrates' Court at the Latrobe Valley on 4 September 2007 requiring that he furnish income tax returns for the financial years ending 30 June 1997 to 30 June 2005 inclusive.

1. Charges 20 and 21 relate to Mr Telehus' failure to comply with s 8H of the Taxation Administration Act 1953, in that he failed to comply with an order made under s 8G(1) of that Act. That was an order made on 4 September 2007 directing that he furnish income taxation returns for each of those nine financial years.
2. On 9 December 2008, Mr Telehus pleaded guilty and was convicted of nine charges of failing to comply with s 8H of that Act. Certified extracts to that effect were provided.
3. Also on 9 December 2008, Mr Telehus was convicted of 8 equivalent offences relating to failing to lodge GST returns after having been ordered to do so. Apparently due to an oversight, charges 20 and 21 do not allege this. They only relate to income tax returns, not GST returns. So I take no account of those eight convictions, even though there was an aggregate penalty order made covering all 17 convictions.
4. I accept the production of the copy of the certified extract as proof that Mr Telehus was convicted of the nine offences relating to non-filing of income tax returns on 9 December 2008. I therefore find the facts alleged in charges 20 and 21 proved.

1. In the case of Legal Services Commissioner v Booth[7] I recently surveyed the authorities relating to tax offences by lawyers. At paragraph [30], I said:

The leading case is the 2001 decision of the New South Wales Court of Appeal in New South Wales Bar Association v Cummins.[8] The Court struck a barrister's name from the roll after finding him not to be a fit and proper person. It also found him guilty of professional misconduct at common law. In considering the question of whether a practitioner who has not complied with his taxation obligations is fit and proper to practise, Spigelman CJ, with whom Mason P and Handley JA agreed, identified the relevant public interest factors as follows:

There are four interrelated 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 he 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.[9]

1. After reviewing the relevant authorities I said in Booth at paragraph [33]:

These cases have generally applied the principles set out in Cummins to the individual circumstances of each matter. They are consistent in finding that breaches of taxation obligations, especially over an extended period, are very serious matters which, in the absence of powerful countervailing mitigating factors, will lead to the conclusion that a practitioner is not a fit and proper person to practise. Even though none deal with such an extended period of non-compliance as Cummins (38 years) it is clear that those principles apply to much shorter periods. A number also found that such conduct constituted professional misconduct at common law.

1. While the information I have about the extent of unpaid tax is sparse, it contains hints that Mr Telehus may be at the opposite end of the spectrum to Mr Cummins, or other practitioners who had lived a 'lavish lifestyle'. In the only indication the LSC has received from Mr Telehus about his conduct or circumstances, he suggested that in relation to his 2005-7 tax return, there was in fact no tax to be paid, as there was a loss (see below). This does not of course absolve Mr Telehus of the obligation to file tax returns. Regardless of the amounts involved, it is a serious matter for legal practitioners, whose role of course is to assist clients with their legal obligations, themselves to fail to comply with their civic and legal duty to cooperate with the Commissioner of Taxation in relation to their own affairs. It is noted that a finding of guilt for a tax offence is specified as conduct which is capable of constituting unsatisfactory professional conduct, or professional misconduct in s 4.4.4(c)(ii)of the Act. Further, no information was provided to the Tribunal in relation to Mr Telehus' 1997-2004 income tax returns, or the 11 quarters for which GST returns were not filed.
2. In accordance with the authorities referred to in Booth, I find that Mr Telehus' non-compliance with his obligations in relation to taxation renders him not fit and proper to practise, and also constitutes misconduct at common law. So I find charges 16- 21 proved.

Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that on 11 September 2007 the Respondent failed to notify the Legal Services Board that he had been found guilty of tax offences by the Magistrates' Court at Latrobe Valley on 4 September 2007 as required by section 2.4.27(2) of the Act.

Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that on 2 October 2007 the Respondent failed to provide a written statement explaining why, despite being found guilty of tax offences by the Magistrates' Court at Latrobe Valley on 4 September 2007, he considered himself a fit and proper person to hold a local practicing certificate as required by section 2.4.27(2) of the Act.

1. Under s 1.2.1 of the Act, a 'show cause event' includes a practitioner being found guilty of a tax offence. A tax offence is relevantly defined in the same section as an offence under the Taxation Administration Act 1953 (Cth).
2. The allegations are that Mr Telehus was required under s 2.4.27(2) of the Act to provide the following to the Legal Services Board (LSB), but failed to do so:
   • Notification of the fact that he had been found guilty of tax offences (within seven days),
   • A written statement explaining why, despite the show cause event, he considered himself to be a fit and proper person to hold a practising certificate (within 28 days).
3. By way of proof of Mr Telehus' alleged non-compliance with these requirements, the LSC relied on a statutory declaration made by Mr Telehus on 27 September 2007 as part of an application to renew his practising certificate which falsely stated he had not been found guilty of a tax offence. That application was attached to the witness statement of Ms Helen Haratsus, Manager of Practising Certificates at the Law Institute of Victoria (LIV). Ms Haratsus' witness statement simply confirmed the receipt of that application for renewal (together with two other applications - see below). It did not, however, positively attest to the non-receipt by the LIV (as the delegate of the LSB) of the notification required to be given of a show cause even under s 2.4.27.
4. It was said that Mr Telehus' false statutory declaration that he had not been found guilty of a tax offence was sufficient to comprise a breach of s 2.4.27. In my view, however, these two charges require that the applicant prove that the respondent did not provide the two notifications required. While the false statutory declaration is the subject of separate charges (see below), it is not sufficient to prove charges 22 and 23.
5. Accordingly. I find charges 22 and 23 not proved.

Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act in that on or about 27 September 2007 the Respondent knowingly falsely declared in an application for renewal of his 2007/2008 practicing certificate that he had not been found guilty of a tax offence.

Further and alternatively to charge 24, professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that the Respondent engaged in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable namely his conduct in knowingly falsely declaring on or about 27 September 2007 in an application for renewal of his 2007 I 2008 practicing certificate that he had not been found guilty of a tax offence.

1. On 27 September 2007 Mr Telehus completed an application for renewal of his practising certificate. At the foot of the application to renew his practising certificate, Mr Telehus made a statutory declaration that the information provided is true and correct in every particular. Mr Telehus acknowledged that his declaration was true and correct and made in the belief that a person making a false declaration is liable to the penalties of perjury. The declaration was made before a police officer.
2. In that application, Mr Telehus ticked the 'no' box in response to the question:

Have you been found guilty of a serious offence or a tax offence which was committed either in or outside this jurisdiction?

This was a false statement because only three weeks before, Mr Telehus had been found guilty in the Magistrates' Court at Morwell of nine income tax offences and 11 GST offences, as described above.

1. The recognisance at the foot of the Magistrates' Court orders of 4 September 2007 bears Mr Telehus' signature, indicating his acceptance of terms of his good behaviour bond in relation to his income tax offences. The same applies in relation to the separate order and good behaviour bond relating to his GST offences.
2. Accordingly, I find the facts alleged in charges 24 and 24 proved: I find Mr Telehus knowingly made a false declaration on his application for renewal of his practising certificate on 27 September 2007.
3. Charges 26 and 27 allege:

Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act in that on or about 6 January 2009 the Respondent knowingly falsely declared in an application for a practicing certificate that he had not been found guilty of a tax offence.

Further and alternatively to charge 26, professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that the Respondent engaged in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable namely his conduct in knowingly falsely declaring on or about 6 January 2009 in an application for a practicing certificate that he had not been found guilty of a tax offence.

1. Mr Telehus did not hold a practising certificate from 1 June 2008. On 9 January 2009, he again lodged an application for a practising certificate. Once again he answered 'no' in response to the question whether he had been found guilty of a tax offence.
2. Once again this was a false statement, for the reasons set out above in relation to charges 24 and 25, given the findings of guilt made against him for tax offences on 4 September 2007.
3. However, by this time, Mr Telehus had also been found guilty, a month before, on 8 December 2008, of the 17 breaches of s 8H of the Taxation Administration Act 1953 referred to above.
4. Again, Mr Telehus completed the statutory declaration at the foot of his 6 January 2009 application, stating that the information he had provided was true and correct and acknowledging that a person making a false declaration is liable to the penalties of perjury. Again, the declaration was made before a police officer.
5. Hence I find the facts alleged in charges 26 and 27 proved.
6. Charges 28 and 29 allege:

Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act in that on or about 1 March 2011 the Respondent knowingly falsely declared in an application for a practising certificate that:

1. [deleted]
2. he had lodged relevant outstanding income tax returns at the time he pleaded guilty, on 4 September 2007 at the Magistrates' Court at LaTrobe Valley to failing to lodge those returns, when he had not in fact lodged those income tax returns at that time.

Further and alternatively to charge 28, professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct 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 knowingly falsely declaring on or about 1 March 2011 in an application for a practicing certificate that:

1. [deleted]
2. he had lodged relevant outstanding income tax returns at the time he pleaded guilty, on 4 September 2007 at the Magistrates' Court at LaTrobe Valley to failing to lodge those returns, when he had not in fact lodged those income tax returns at that time.

1. On 1 March 2011, Mr Telehus again applied for a practising certificate. This time, in answer to the question whether he had been found guilty of a tax offence, he answered 'yes'. He provided an explanation of this show cause event on a separate sheet attached to, and forming part of, his application. This stated:

I was charged with failing to lodge income tax returns 2005/6/7. At the time I pleaded guilty, I had lodged returns - all returns showed an operating loss. No financial gain was made. No dishonesty was involved in my failure to lodge i/t returns. My failure to lodge was a direct consequence of maintaining a full-time practice whilst being a full-time carer for my aged mother. [I was my mother's full time carer for 8 years] I should have sought assistance but failed to do so. I fully understand the need to ask for help. (My mother passed away 7/1/10)

I was advised that this is the only statement by Mr Telehus received by the LSC which provides any kind of response or explanation for his conduct.

1. Charges 28 and 29 were amended during the course of the hearing, with leave of the Tribunal. The amendments served only to narrow down the allegations put. As originally drafted, these two charges alleged a wider range of misleading statements. The amended charges no longer relied on any implied statement that the failure to lodge income tax returns in 2005-7 was Mr Telehus' only taxation non-compliance.
2. The result is that in their amended form, charges 28 and 29 only have application to Mr Telehus' 2005 tax return. They do not apply to his 2006 and 2007 tax returns because there was nothing produced to indicate that any of the charges or findings on 4 September 2007 related to his 2006 and 2007 income tax returns.
3. Charges 28 and 29 allege that the statement Mr Telehus made in his application of March 2011, that by the time he pleaded guilty to failing to lodge his income tax return for 2005 he had in fact lodged that return, was false.
4. It is clear from the evidence that this statement was indeed false. This is of course demonstrated by the fact that Mr Telehus was on 4 March 2007 ordered to file his 2005 income tax return (as well as returns for the eight years prior to that). In fact, Mr Telehus failed to comply with that order, which was the subject of a further charge, resulting in a conviction on 9 December 2008.
5. Once again, the contents of the March 2011 application (including the above explanation of the show cause events) were verified by Mr Telehus making a statutory declaration before a police officer that the information provided was true and correct, and acknowledging that the penalties for perjury apply.
6. I find that the statement that the 2005 tax return had been lodged by the time of the Magistrates' Court hearing on 4 December 2007 was false. Accordingly I find the facts alleged in charges 28 and 29 proved.

Characterisation of the conduct in making the false statutory declarations

1. The seriousness of Mr Telehus' conduct is magnified by the circumstances in which these false statements were made. Each was made not just in ordinary correspondence, but in a statutory declaration. This is of course a solemn document, in which the person making it expressly confirms that it is true, and that they are aware of the penalties of perjury which apply if it is not. Second, these false statements were made in support of an application for the issuing of a practising certificate, whereby a solicitor is granted the privileges and takes on special responsibilities to the courts, clients and the community generally.
2. Mr Telehus' dishonesty in making these false declarations demonstrates that he was not a fit and proper person to hold a practising certificate.[10] Again, there is no basis on which it can be suggested that this does not remain the case today.

Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that between 26 August 2011 and the present the Respondent has failed to provide the Applicant with documents, records and an explanation relevant to the investigation into the Respondent's conduct commenced by the Applicant pursuant to section 4.4.8 of the Act, contrary to section 4.4.11(1)(a) and 4.4.11(1)(b) of the Act.

1. Ms Smith's witness statement attached copies of letters sent to Mr Telehus dated 26 August 2011 and 24 January 2013 requiring a written explanation for his conduct under s 4.4.11 of the Act in relation to the show cause events comprised by the taxation offences. Ms Smith stated that no written response was received from Mr Telehus.
2. I accept the evidence of Ms Smith, and find that Mr Telehus' failure to respond constitutes a substantial failure to reach a reasonable standard of competence and diligence. Accordingly, I find charge 30 proved.

1. I have found Mr Telehus guilty of 27 of the 29 charges brought against him. Of the original 30 charges, charge 10 was withdrawn. Additionally, I have found charges 22 and 23 not proved.
2. The effect of these findings is that all of the allegations summarised in paragraph 2 above have been found against Mr Telehus, with the exception of failing to notify the LSC of court findings of guilt against him in relation to tax offences.
3. The LSC submitted that Mr Telehus' conduct indicated he was indefinitely unfit to practise. It sought the following sanctions be imposed:
   • Mr Telehus be disqualified for practising from seven years.
   • For a further three years after that, Mr Telehus not be able to act as a principal, or to hold trust monies.
   • In any event, a recommendation be made to the Supreme Court that Mr Telehus' name be removed from the role of practitioners.
   • Mr Telehus pay the LSC's costs of $11,481.11 (as at the date of the hearing) under clause 46D of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998. This provides where a finding of professional misconduct is made the practitioner is to pay the LSC's costs unless the Tribunal is satisfied that exceptional circumstances exist.
   • A compensation order under section 4.4.19 and 4.3.17(1)(a) of the Act that Mr Telehus pay Mr Stewart the sum of $1,447.
4. I will give Mr Telehus the opportunity to make any submissions and to lead any evidence he wishes before determining what sanctions should apply in the light of these findings. Mr Telehus is able to obtain a copy of the audio recording or written transcript of the Tribunal hearing through the process set out on the VCAT website, if he wishes. In the event no response is received from Mr Telehus, the Tribunal will proceed to make determinations on the question of the sanctions which should apply without further notice.

[1] Allinson v General Counsel of Medical Education and Registration [1984] 1 QB 750, 751; Re A solicitor [1960] VicRp 96; [1960] VR 617, 620 (per Dean J).