This is a written version of oral reasons delivered at the conclusion of the hearing on 27 June 2013.

1. The respondent Mr Thalakada, faces two charges brought by the Legal Services Commissioner and the third charge, in the alternative.
2. Charge 1 alleges that the respondent is guilty of professional misconduct within the meaning of section 4.4.3(1) of the Legal Profession Act 2004, namely misconduct at common law in that his conduct on 24 February 2011 of making a statement within the answering notice to the Registrar (of Titles) which the respondent knew or ought to have known was false was conduct which would reasonably be regarded by legal practitioners of good repute and competency as dishonourable and disgraceful.
3. The circumstances surrounding this part of the allegations made against Mr Thalakada are that he was acting on behalf of a client which had instituted legal proceedings. As part of the strategy of acting on behalf of this client, Mr Thalakada issued a caveat which was lodged against a Certificate of Title of one of the persons associated with the other party to the litigation. The caveat claimed an estate in fee simple and stated the grounds of the claim as being pursuant to a constructive trust arising under section 53(1) and (2) (It does not state which enactment those sections and sub-sections refer to) arising from purchase and/or maintenance of the land by a registered proprietor with misappropriated funds of the caveator. It sought an extent of prohibition as being absolute. The caveat is signed by the respondent.
4. Representatives of the registered proprietor challenged the caveat and it was necessary to answer the challenge. The response filed with the Warrants Officer of the Land Registration Service, Department of Sustainability and Environment refers to the caveat and provides the following notice:
   1. Proceedings are on foot.
   2. In the Supreme Court of Victoria
   3. Aforesaid proceedings substantiate caveator's claim in relation to the land and estate of interest of which above application has been made.
   4. The Court reference is (and it gives the Court reference).

1. The question of whether that notice was correct or not is answered by the admission by Mr Thalakada that he accepted that what he wrote in the Answering Notice was not true. The question is whether at the time he knew or ought to have know that it was false. The background is that there was clearly advice given by counsel that the statement of claim which had been issued on behalf of the caveator did not entitle the caveator to an interest in the land and that amendment of the Statement of Claim was necessary.
2. Mr Thalakada says that he took the statement that proceedings are on foot to mean proceedings that substantiate the claim. However, he was at that stage under no illusions that the Statement of Claim did not support the interest claim or did not claim sufficient interest to substantiate the lodging of a caveat. He went on to say that his belief was that the proceedings were substantiated because he, Mr Thalakada had instructed counsel to amend the Statement of Claim.
3. As has been pointed out by Counsel on behalf of Mr Thalakada, the Briginshaw test[1] applies to these proceedings and not only do I have to be satisfied on the balance of probabilities that a charge is made out but I have to have a degree of comfort to that effect having regard to the seriousness of the charge and its possible consequences. Certainly a charge of professional misconduct is sufficiently serious, not only to invoke the Briginshaw test which is a test that is always used but also, to turn the Tribunal's mind to the question of the degree of comfort that is required to find on the balance of probabilities that charges were made out. Mr Thalakada is an experienced lawyer, although it has to be said not experienced in matters of property law. However he has at each step availed himself, quite wisely, of the assistance of counsel who are knowledgeable in this particular area. However, in relation to the first charge, it is quite clear that counsel gave the advice that the Statement of Claim in the Supreme Court proceedings did not substantiate the lodging of a caveat. Bearing in mind that the purpose of a caveat is to protect an interest or a potential interest in land but it must be based upon a genuine claim to an interest in that land. At that time the Statement of Claim did not disclose such an interest.
4. As I have said, Mr Thalakada is an experienced practitioner and even if one is not experienced in property law, the assertion that instructions given to counsel to amend a statement of claim, constitute proceedings which substantiate the claim is not only wrong, it is incredible that a legal practitioner would think that that was the case. As to Mr Thalakada's evidence, I find that not only has he given me that piece of evidence which I find incredible but in general terms he has been a vague and evasive witness who has failed to impress. It is quite clear that at the time that the response notice was given to the Land Registration Service that not only did the Supreme Court Statement of Claim not substantiate the stated claim, but that there was no amendment to the Statement of Claim at that stage which would have; or could have, substantiated the claim. I find it incredible that a lawyer of Mr Thalakada's years of practice, could have any belief that the giving of instructions to counsel to amend a statement of claim which may or may not have been ultimately accepted by the Court, constituted an Amended Statement of Claim. I am satisfied that not only was the Notice in response to the challenge to the caveat incorrect as was admitted but that Mr Thalakada knew that it was false. Therefore Charge 1 is made out.
5. Charge 2 relates to a letter which was sent by Mr Thalakada to the solicitors acting on behalf of the other party to the Supreme Court litigation. The context is that there had been some correspondence between Mr Thalakada and the solicitor for the other parties concerning the removal of the caveat. The solicitors for the other parties had made it known to Mr Thalakada that if it was not made known to them that the caveat would be removed by a certain date, they would take action in the Supreme Court to have the caveat removed and specifically there was a letter dated 8 May 2011 from the solicitors, Alliance Legal, part of which reads:

Unless we receive a response for you [should be 'from' you] by no later than close of business Friday 20 May we are instructed to make application to the judge in the Practice Court seeking orders that the caveat your client has lodged be removed.

1. Mr Thalakada wrote to Alliance Legal on 20 May 2011 saying

I am seeking instructions from my client. I would appreciate an extension to say 25th of May to respond'.

That was an indulgence which was granted and on 25 May 2011, Mr Thalakada wrote to Alliance Legal stating :

I have still not received instructions from my client regarding the withdrawal of the caveat. Please grant us time until the end of the week to respond.

1. What subsequently occurred was that the caveat was removed and replaced by another caveat. The solicitors for the other party were quite angry about that.
2. Prior to the sending of that letter on 25 May 2011, Mr Thalakada and a representative of his client attended a conference on 23 May 2011 with Mr Rimmer of counsel. Mr Rimmer has given evidence today and in doing so has given his credentials as an expert property lawyer and there is no doubt that Mr Rimer is a lawyer well experienced and expert in property law. In that conference on 23 May 2011 it was the advice of Mr Rimmer that the caveat should be removed and replaced. Mr Rimmer qualified the advice by saying, that he needed to have a think about the order in which this is done. On the 24th, the next day, he sent an email but not to Mr Thalakada but to his client. That confirmed the advice and set out the order.
3. The question is whether on 25 May 2011 when Mr Thalakada sent that letter to Alliance Legal, he had instructions concerning the withdrawal of the caveat. The answer to that question is clearly 'yes'. There was some question about the order of lodging another caveat and the strategy involved in that but there is no question that on 23 May 2011 when the conference between Mr Thalakada, his client and Mr Rimmer took place, that the instructions were given that that caveat was to be removed. The surrounding strategy was nothing to do with the advice which was to be given to the other solicitor as to whether instructions and been received to withdraw that caveat. All Mr Thalakada had to do on the 25 \May 2011 was say that had instructions to withdraw the caveat. He would not have had to have said any more than that to satisfy the other solicitors. The other strategy could have been put in place and we would not have been here today discussing this charge but he wrote that he did not have instructions concerning the withdrawal of the caveat and I do not accept that. He clearly did have those instructions. The details were to be worked out but the instructions were that the caveat was to be withdrawn. By saying that he did not have instructions, Mr Thalakada deceived the other solicitor.
4. Accordingly Charge 2 is made out. I hasten to add that in both cases in saying that the charges are made out, I am satisfied that both of those actions would be regarded by legal practitioners of good repute and competency as dishonourable and disgraceful.
5. In relation to Charge 1, it is quite clear that the caveat process is one which is one of the integral components of the Torrens system, it allows someone who does not have a registered interest in a title but may have another interest to protect that interest or give them the opportunity to protect that interest.
6. In submissions Mr Snow on behalf of the Commissioner referred me to the case of Goldstraw v Goldstraw and the Registrar of Titles[2], particularly to paragraphs [38] to [40] of the decision of Her Honour Justice Dodds-Streeton.
7. Paragraph [38] onwards:

[38] In my opinion, the only proper purposes for lodging a caveat against a registered proprietor's title under s.89(1) of the Act [the Transfer of Land Act] are to protect the estate or interest claimed by the operation of the statutory injunction against the registration of subsequent dealings and to provide notice of the existence of the estate or interest to those who consult the Register. A caveat has a significant potential to obstruct the rights, and to damage the interests, of the registered proprietor and other parties.

[39] Of particular relevance in the present case is the potential deterrence of purchasers. Given the potential for damage to a variety of parties, in my opinion the lodgement of a caveat for an ulterior or collateral purpose constitutes a serious misuse of the relevant statutory provisions.

[40] That is fortified by s.118 of the Act, which provides that any person lodging a caveat without reasonable cause shall be liable to compensate any person who sustains damage thereby, as the court deems just.

1. It is quite clear that at the time of the lodgement of the reply notice, the purpose of attempting to maintain the caveat was ulterior or collateral, that is, to stop the disposal of the property effectively until the Court makes its decision. However it was made at a time when the Statement of Claim was unable to sustain any interest in the land and therefore it constitutes a misuse of the caveat provision. Practitioners of good repute and competency would regard that as dishonourable and disgraceful.
2. As to the misleading of a fellow practitioner, I have no hesitation in finding that practitioners of good repute and competency would regard that as dishonourable and disgraceful. To engage with another legal practitioner in robust competition is part of the raison d'être of the legal profession. However to mislead another legal practitioner is, in my view dishonourable and disgraceful and I am satisfied that legal practitioners of good repute and competency would agree with me.
3. In relation to the disposition, the Commissioner seeks an order that Mr Thalakada not apply for a Local Practising Certificate for three months. The Commissioner also seeks a fine in the range of $5,000.00 to $10,000.00 and costs of $6,579.00.
4. As to the request that an order be made effectively banning Mr Thalakada from practice for three months, I am not satisfied that any practical purpose would be served given that Mr Thalakada is now effectively retired and spends his time, according to the references, providing pro bono work to members of the Buddhist community of Melbourne. It has been submitted that the prohibition on practice would impair the work. However I do note that for the last year Mr Thalakada has not been the holder of a practising certificate. That calls into question the need for one. There is no suggestion that Mr Thalakada is practising without a practising certificate. However, having regard to Mr Thalakada's present circumstances, effectively that he has retired from public practice save for pro bono work, I am not satisfied that it is appropriate to order that he not apply for a Local Practising Certificate for any period of time.
5. As to the question of a fine, I wish to make it clear that the charges of misconduct are serious and these ones are, within the spectrum of misconduct, not at the bottom of the spectrum. However, in fixing the fine I take note of Mr Thalakada's age, his apparent lack of financial resources and the fact that he has, but for one minor matter which is now 10 years ago, a clean record, since his commencement of practice in Victoria. I have no information about his practice prior to coming to this State, however, nothing has been put before me.
6. I consider it appropriate that a fine of $5,000.00 be paid by Mr Thalakada to the Legal Services Board.
7. In relation to the costs there has been a request for the payment of the Commissioner's costs in the sum of $6,574.00. This has been agreed to and I make the observation that in my experience that this is a relatively modest amount. The order is that the applicant's costs fixed by the Tribunal in the sum of $6,574.00 to be paid by the respondent.

[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

[2] [2002] VSC 491