1. On each charge Daniel Oldham is reprimanded pursuant to s 4.4.19(k) of the Act.

1. On the basis that all charges have been found proven, pursuant to s 4.4.19(g) of the Act, Daniel Oldham is to practice only in the areas of building law, construction law, property law and owners corporation law for a period of two years from this date.

1. Daniel Oldham is to pay the costs of the Legal Services Commissioner of this proceeding fixed in the sum of $30,000.

1. I shall hear submissions as to any stay in relation to the payment of the legal costs and as to any proposed arrangements for the payment of same.

1. The decision of the Law Institute of Victoria Limited to refuse Daniel Oldham's application for renewal of a practising certificate on the basis that he is no longer a fit and proper person is set aside.

1. These matters come before me pursuant to the provisions of the Legal Profession Act 2004 ('the Act'). Essentially, each involves the same set of facts. The matters were heard together, and it was made clear that the matter of the Legal Services Commissioner v Oldham was the 'lead' proceeding and that the Law Institute of Victoria ('the LIV') would abide by any ruling which I made in the case brought by the Legal Services Commissioner ('the LSC'), and particularly in any ruling in relation to the Practising Certificate of Mr Daniel Oldham ('Oldham'). This is appropriate, bearing in mind the orders made by Senior Member Smithers on 8 March 2012 that the separate applications be heard and determined together and that the evidence in each proceeding shall stand as evidence in the other proceeding.
2. Mr D Star of counsel with Ms E Bennett of counsel appeared on behalf of the LSC and the LIV. Mr T Margetts SC with Mr R Andrew of counsel appeared on behalf of Oldham. It was indicated that Oldham was pleading guilty to five charges relating to professional misconduct and which shall be described shortly. A large amount of documentary material was tendered, including character references, and oral evidence was adduced from the following witnesses: Oldham, who gave substantial evidence and was cross-examined at length; Mr T P Tobin SC, whose evidence could be described as being in part relating to character but also to the substance of the charges; Dr Damien Cremean, a barrister and lecturer at Monash University who has also been a Deputy President and Senior Member of this Tribunal and before whom Oldham has appeared on numerous occasions; Mr Angelo Simonetto, who is the legal manager and solicitor for the Master Builders Association of Victoria, an entity whose members provide considerable legal work for Oldham; Mr James Nixon of counsel, who has been briefed by Oldham in a number of building cases; Ms Renishka Naidoo, a partner of Oldham in the firm Oldham Naidoo and a person who had considerable contact with at least one of the relevant files; Mr John Butler, who has been Deputy Victorian Government Solicitor and Acting Victorian Government Solicitor as well as holding the office of Crown Counsel (Advisings) and who is a family friend of Oldham; and Mr Brian McCullagh of counsel, who has been briefed by Oldham in a number of matters, including some concerning owners corporation law and other property proceedings.

1. Oldham pleaded 'guilty' to the following five charges, another six charges, which were in fact alternate charges being withdrawn. The charges to which Oldham pleaded guilty are as follows:

"CHARGE 1 - misconduct at common law by issuing and maintaining proceeding 10544 of 2008

The Respondent is guilty of "professional misconduct" at common law and within the meaning of section 4.4.3(1) of the Act by:

(a) Oldham Naidoo issuing proceeding 10544 of 2008 in Dr Cohen's name on 24 December 2008 without any or any proper instructions from Dr Cohen to do so; and

(b) Oldham Naido maintaining proceeding 10544 of 2008 in Dr Cohen's name from 24 December 2008 until 26 November 2010 without any or any proper instructions from Dr Cohen to do so,

in circumstances where the Respondent from 24 December 2008 until 26 November 2010:

(c) had knowledge of the matters in (a) and (b) above, alternatively should have known the matters in (a) and (b) above; and/or

(d) was the legal practitioner from Oldham Naidoo responsible for issuing and maintaining the proceeding and/or

(e) failed to supervise other persons from Oldham Naidoo (in particular, Ms Jordana Dymond) in relation to the issuing and maintaining of the proceeding.

CHARGE 4 - misconduct at common law by issuing and maintaining proceeding 4788 of 2009

The Respondent is guilty of "professional misconduct" at common law and within the meaning of section 4.4.3(1) of the Act by:

(a) Oldham Naidoo issuing proceeding 4788 of 2009 in Mr Leo Keane's name on 16 February 2009 without any or any proper instructions from Mr Keane to do so; and

(b) Oldham Naido maintaining proceeding 4788 of 2009 in Mr Keane's name from 16 February 2009 until 18 June 2010 without any or any proper instructions from Mr Keane to do so; and

(c) had knowledge of the matters in (a) and (b) above, alternatively should have known the matters in (a) and (b) above; and/or

(d) was the legal practitioner from Oldham Naidoo responsible for issuing the proceeding, and a legal practitioner responsible for maintaining the proceeding until at least 14 May 2009; and/or

(e) failed to adequately supervise other persons from Oldham Naidoo (in particular, Ms Jordana Dymond) in relation to the issuing of the proceeding and the maintaining of it until at least 14 May 2009.

CHARGE 7 - misconduct at common law by not immediately or expeditiously removing the named plaintiff in proceeding 4788 of 2009

The Respondent is guilty of "professional misconduct" at common law and within the meaning of section 4.4.3(1) of the Act by:

(a) Oldham Naidoo issuing proceeding 4788 of 2009 in Mr Leo Keane's name on 16 February 2009 without any or any proper instructions from Mr Keane to do so; and

(b) the Respondent having knowledge of the matters in (a), alternatively should have had knowledge of the matters in (a), from on or about 16 February 2009;

(c) the Respondent having knowledge from 18 February 2009 that Mr Keane wanted to be removed as the named plaintiff in the proceeding;

(d) the Respondent not taking active steps, nor causing active steps to be taken by others, to immediately or expeditiously remove Mr Keane as the representative plaintiff in the proceeding between 18 February 2009 and 14 May 2009; and

(e) Mr Keane not being removed as the representative plaintiff in the proceeding prior to 14 May 2009.

CHARGE 10 - professional misconduct within s 4.4.3(1)(a) of the Act by not knowing obligations on the claimants and the representative plaintiff under Part 4A of the Supreme Court Act 1986 for proceeding 10544 of 2008

The Respondent is guilty of "professional misconduct" within the meaning of section 4.4.3(1)(a) of the Act for unsatisfactory professional conduct, where that conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence, by;

(a) conducting, or being the person responsible for conducting, proceeding 10544 of 2008 on behalf of the representative plaintiff between 24 December 2008 and 26 November 2010,

(b) did not know all of the obligations on the representative plaintiff under Part 4A of the Supreme Court Act 1986 and, in particular, the potential application of section 33ZD to a representative plaintiff;

(c) failed to advise the representative plaintiff, Dr Cohen, as to his liability for costs or as to his obligations as representative plaintiff under the Supreme Court Act 1986; and

(d) failed to arrange for another legal practitioner or representative of Oldham Naidoo to advise the representative plaintiff, Dr Cohen, as to his liability for costs or as to his obligations as representative plaintiff under the Supreme Court Act 1986; and

(e) four costs orders were made against Dr Cohen as the plaintiff in proceeding 10544 of 2008 between 13 November 2009 and 25 January 2011: and

(f) none of the costs orders referred in (e) above were brought to Dr Cohen's attention by you or Oldham Naidoo at the time they were made.

CHARGE 11 - professional misconduct within s 4.4.3(1)(a) of the Act by not knowing obligations on the claimants and the representative plaintiff under Part 4A of the Supreme Court Act 1986 for proceeding 4788 of 2009

The Respondent is guilty of "professional misconduct" within the meaning of section 4.4.3(1)(a) of the Act for unsatisfactory professional conduct, where that conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence, by:

(a) conducting or being a person responsible for conducting, proceeding 4788 of 2009 on behalf of the representative plaintiff between 16 February 2009 and 14 May 2009,

(b) did not know all of the obligations on the representative plaintiff under Part 4A of the Supreme Court Act 1986 and, in particular, the potential application of section 33ZD to a representative plaintiff;

(c) failed to advise to representative plaintiff, Mr Keane, as to his liability for costs or as to his obligations as representative plaintiff under the Supreme Court Act 1986; and

(d) failed to arrange for another legal practitioner or representative of Oldham Naidoo to advise the representative plaintiff, Mr Keane, as to his liability for costs or as to his obligations as representative plaintiff under the Supreme Court Act 1986; and

(e) a costs order was made against Mr Keane as the plaintiff in proceeding 4788 of 2009 on 4 August 2010 and Mr Keane was potentially exposed to liability for further costs orders against him whilst he was the plaintiff in proceeding 4788 of 2009."

1. The factual background will be set out shortly, but it can be said immediately that essentially the two proceedings in question relate to class actions arising out of bushfires. Each action was issued out of the Supreme Court of Victoria. The first action related to bushfires in the Alpine region of Victoria ('the Alpine bushfires') which occurred in approximately late 2002 and early 2003. In this class action, Dr Hershall Cohen was the nominated 'lead plaintiff' ('the Cohen proceeding'). The second class action concerns the fires on 7 February 2009 ('the Black Saturday bushfires') and in this action the nominated 'lead plaintiff' was Mr Leo Keane ('the Keane proceeding'). It was intended that each proceeding be a group proceeding within the meaning of Part 4A of the Supreme Court Act 1986 (Vic).
2. At the heart of the charges lies the assertion that both the Cohen proceeding and the Keane proceeding were commenced without instructions from the respective nominated plaintiffs; that each proceeding was maintained for a period without instructions; and that Oldham was ignorant of the obligations and potential liabilities of lead plaintiffs.

(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."

1. The various orders which this Tribunal may make can be found in ss 4.4.17 and 4.4.19 of the Act. I shall not set them out in detail here but they include orders that a practising certificate be suspended for a specified period or cancelled; orders that conditions be imposed in relation to a practising certificate or the conduct of a practice; orders in relation to further legal education or practising under specified supervision; fines; and reprimands.
2. Pursuant to s 33ZD of the Supreme Court Act, in a group proceeding the Court may order the plaintiff or the defendant to pay costs but, except in very limited circumstances, may not order a group member or a sub-group member to pay costs. The importance and relevance of this is that lead or nominated plaintiffs should be made aware of the risk of costs being ordered against them and, indeed, in the Cohen proceeding some four costs orders were in fact made against Dr Cohen, even though these do not seem to have been pursued. It may be that, behind the scenes, some indemnity agreement involving the group members may exist, but, where necessary, costs orders are made directly against the nominated plaintiff.

1. Before turning to my factual conclusions, many of which were not the subject of challenge, I wish to deal with my impression of the plaintiff and his reliability as a witness. In this regard, and indeed generally, I am conscious of the observations of the Honourable Justice J Forrest in Cohen v The State of Victoria and Ors (No 2) [2011] VSC 165 ('Cohen Ruling No 2'); Cohen v The State of Victoria and Ors (No 3) [2011] VSC 229 ('Cohen Ruling No 3') and Matthews v SPI Electricity and Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v Utility Services Corporation Limited & Ors (Ruling No 1) [2011] VSC 167 ('Matthews Ruling No 1'). In these rulings, His Honour made a number of comments concerning the conduct of each proceeding and the behaviour of Oldham. Indeed, as I understand it, it was His Honour who referred the matter to the LSC and, if I may say so with respect, on the basis of the material before him this was completely understandable.
2. His Honour referred to the fact that the conduct of the firm of solicitors for the plaintiff was a serious breach of its ethical obligations, a patent abuse of process, and arguably constituted contempt of court. There were also other criticisms of both Oldham and the firm, Oldham Naidoo. It should be emphasised at this point that Oldham is taking complete responsibility for what occurred, although he was not directly handling the proceedings, and particularly the Keane proceeding, at all times, or the majority of the time.
3. Because my conclusion as to Oldham's credibility and reliability may, at first glance, seem surprising and at odds with his Honour's remarks, I wish to point out the following matters. It was emphasised to me several times that, of course, I am not bound by the comments of J Forrest J. However, his Honour gave the circumstances of what had occurred, as known to him, the expected careful and considered attention. These were not mere incidental comments and I certainly do not intend to put them to one side or pass over them lightly.
4. Nevertheless, I would point out that his Honour could do no more than deal with the facts as put before him. By this time the conduct of the applications before his Honour was effectively in the hands of the professional indemnity insurer of Oldham Naidoo. Before me, there was no challenge to the proposition, which I accept, that, for the purposes of the applications before J Forrest J, and probably for Cohen Ruling No 2, Oldham prepared a very lengthy affidavit. This set out not just what had occurred but much of the background material, and indeed, became the foundation of his witness statement adopted on oath by him as being true and correct on the first day of this hearing. However, in what was occurring before J Forrest J, those representing the professional indemnity insurer greatly reduced the size of Oldham's affidavit by editing out much of his explanation as to the background of what had occurred. The end result was an affidavit of 27 March 2011 of some 27 paragraphs. By way of contrast, the statement adopted on oath before me, the contents of which to a considerable extent coincide with what Oldham had prepared for the Supreme Court hearing, runs to some 222 paragraphs. As stated, that this is what occurred is not disputed.
5. Further, and again completely understandably and very fairly, because of the possibility of Oldham's actions being scrutinised by a body such as the LSC, J Forrest J expressed the view that it would not be fair to permit Oldham to be cross-examined in the course of what was occurring before him. The transcript of the ruling of his Honour of 21 March 2011 in this regard was placed before me. By way of contrast, I had the advantage of seeing and hearing Oldham give extensive evidence. Although he was pleading guilty to the various charges, he opted to give evidence on oath both by way of evidence-in-chief and in testing, detailed cross-examination. I also had the further advantage of the oral evidence of Mr Tobin and Ms Naidoo.
6. In short, I had available to me a large volume of evidence given on oath that was not available to his Honour in the Supreme Court proceedings. Of course, I also had available a substantial amount of character evidence and evidence relating to the circumstances and background of what occurred. None of this excused the professional misconduct of Oldham which he admits occurred, but it does provide an explanation as to what happened and also provided me with the opportunity to make a personal assessment of Oldham. Much of this was not available to his Honour.
7. The impression which I have formed of Oldham is a favourable one. He struck me as being credible and reliable. He admitted and accepted the faults that existed in the manner in which he had handled both the Cohen proceeding and the Keane proceeding. His lengthy cross-examination involved, necessarily, an attack on his credit. In my opinion, he emerged from such cross-examination with his credit completely intact. He impressed me as being a straight-forward, honest witness, and this is in accord with the very impressive character evidence that was put before me. However, I had come to this conclusion in any event. He is clearly remorseful for what has occurred and for the problems that his venturing into an area of practice with which he was unfamiliar created. In short, he was a particularly impressive witness. I accept his evidence without reservation.
8. I turn now to my findings of fact.
9. Oldham, who is 36 years of age, is a married man with two young children. His wife does not work. He completed his Bachelor of Laws (with Honours) in 1998 and commenced articles of clerkship at Wainwright Ryan solicitors in February 1999, completing them in February 2000. Oldham comes from what could be described as a legal family. He has a brother and sister who are both solicitors. His father, Mr Lester Oldham, was a partner in the firm of Melville Orton & Lewis in Hamilton before the family moved to Melbourne, whereupon he practised in Williamstown until his retirement in 2007. Whilst at Hamilton, Mr Lester Oldham was engaged in litigation concerning bushfires, including proceedings arising from the Ash Wednesday fires of 1983. Mr Tobin SC also worked as a solicitor at Melville Orton & Lewis, ultimately becoming a partner before signing the roll of counsel. Mr Tobin had worked with Mr Lester Oldham in bushfire litigation and Oldham was aware of this. Oldham's mother, who most unfortunately died of cancer in 2008, also had something of a legal background in that she worked as a conveyancer with her husband.
10. Oldham, having been admitted to practice in March 2000, worked at Wainwright Ryan for some four years, and during that time became a senior associate. He worked essentially in the area of building disputes, particularly domestic building disputes, before this Tribunal, and in related property matters. In 2004, he moved to the firm of Jerrard & Stuk, where he was again a senior associate working in building cases at this Tribunal and in other property matters. In April 2006, following some split at Jerrard & Stuk, Oldham went into partnership with Mr Charles Slidders and Ms Naidoo, the firm, which was later to become Oldham Naidoo, then being known as Slidders Lawyers. Oldham continued to practise in the area of building cases. Mr Slidders had, for many years, acted for the Victorian Farmers Federation and looked after some cases for the body itself and for at least some of its members. These included actions against multiple parties.
11. During 2006, Mr Slidders had some discussions with one of the major insurers of properties affected by the Alpine bushfires. Such meetings seem to have occurred at the instigation of the Victorian Farmers Federation. Oldham took no part in them and such knowledge as he has is derived from file notes. In September 2006, he took part in a discussion between Mr Slidders and Mr Tobin, Oldham, because of his previous knowledge of Mr Tobin, effectively introducing him to Mr Slidders but taking no greater role. An advice was subsequently received from Mr Tobin and some correspondence continued between Mr Slidders, the relevant insurer and others concerning a possible cause of action against the State of Victoria in relation to the Alpine bushfires. Mr Slidders sent letters to a number of government departments and an article appeared in the Herald Sun in March 2007 speaking of a possible class action. An advertisement was also placed on the Slidders Lawyers website so that people could register their interest in seeking compensation for bushfire damage. Such advertisement may also have been placed in a rural newspaper. By mid-2008 there were some 20 registrations on a database, these being from people expressing interest and including Dr Cohen. The majority of those who registered on the 'Farmers Database' were people who had been affected by the Alpine bushfires, although the Farmers Database permitted registration on a broader basis. Generally, little occurred between March 2007 and July 2008. As stated, apart from being the means of introducing Mr Slidders to Mr Tobin, Oldham played little or no role in anything that was occurring.
12. Mr Slidders retired from the firm at the end of September 2008 and departed to America. I gather that his wife had already moved there and that there was not a great deal of notice given before Mr Slidders left. Oldham then took over approximately 30 of his files, including those relating to bushfires. Mr Slidders had left no instructions relating to the handover of the bushfire matters and Oldham was unaware of any limitation concerns. In November 2008, Oldham and Ms Diamond, the articled clerk, began reviewing the bushfire files, including those relating to the Alpine bushfires. It was apparent that there was considerable interest in the proposed litigation but nothing by way of a follow up had occurred after the registrations of interest. Oldham recalled that his father had been involved in this type of litigation. He also looked at the report from an Inquiry of the Legislative Council into the management practices relating to bushfires. He noted a possibility that one of the Alpine bushfires in question had occurred on or about 27 December 2002. By this stage, it was early December 2008 with the Christmas holidays due to commence on 24 December. Oldham also noted references in the file notes to Mr Slidders mentioning a class action being launched and a media article which may have given the impression that a proceeding had already been issued, thus perhaps falsely giving people the impression that their rights had been protected. Oldham was keenly aware of the need to protect the rights of the clients, but also, in his oral evidence, made no secret of the fact that he was also concerned in relation to his firm being exposed to actions as a result of the operation of the Statute of Limitations.
13. In the limited time available, Oldham had a couple of conferences with Mr Tobin. Documents were prepared, including a generally endorsed Writ. Further, there were some discussions with a possible plaintiff for whom Slidders did not act but who was represented by Mr Gary Trollope, solicitor. Mr Trollope's client was a Mr Arnold who had suffered damage to buildings associated with ski resorts in the Alpine bushfires. Mr Trollope attended a conference at Mr Tobin's chambers at which Oldham and Ms Diamond were also present. Throughout this time, there seems to have been some discussion as to whether the lead plaintiff should be a Mr Paton, a Mr Richards (who had apparently indicated some interest in doing this) or Mr Arnold. It was Mr Tobin's advice that the proceedings should be issued as a class action and that the lead plaintiff should be someone whose losses reflected those of the group or class. It would seem that neither Mr Richards nor Mr Arnold fell neatly into this category. The losses of Dr Cohen were discussed. There was a general feeling that, whereas the losses of Mr Richards and Mr Arnold effectively related only to loss of income, Dr Cohen had lost fencing, machinery, pastures, trees and the like. I might say that Oldham accepts responsibility for the ultimate choice of Dr Cohen as lead plaintiff, although the precise process by which that result was obtained is not recalled by him.
14. Mr Tobin indicated to Oldham, that he was 'not big in class actions'. In the witness box, Mr Tobin admitted that he had never conducted one prior to these conversations or conferences with Oldham. He also admitted freely that he had made an error. He had advised in the Cohen proceeding that it could be issued and then Oldham could wait a year before service. In that time, the class of persons involved could be quickly assembled. The lead plaintiff could be substituted if required. Oldham had never been involved in proceedings pursuant to s 33A of the Supreme Court Act. He was reliant upon counsel's advice. He wanted to get the proceedings issued by 24 December 2008. He was not aware that he needed to obtain specific instructions from Dr Cohen as lead plaintiff and did not believe that this situation was 'set in stone'. He thought, quite wrongly, that any member of the class action could be named as plaintiff, that substitution could readily occur, and that he did not have to obtain express instructions from the lead plaintiff nominated.
15. Oldham did not ask Mr Tobin specifically whether he needed to obtain the consent of Dr Cohen before naming him as lead plaintiff. Mr Tobin did not advise Oldham of his obligations in this regard. There was no discussion of the issue. At this stage, Oldham was still under the misapprehension that a writ could be issued and then not served for a year.
16. On 23 December 2008 Mr Tobin sent to Oldham a draft general endorsement for the commencement of the class action, together with separate proceedings in relation to Mr Arnold. Oldham sent copies of the Writs to Mr Trollope for his information. Dr Cohen, who had been nominated by Oldham, was named as the lead plaintiff of the class action. There is no suggestion that Dr Cohen was consulted about this or that his consent was obtained. The interest of he and his wife in the possible proceeding had been confirmed, although there was some reservation by Mrs Cohen in relation to the possible expense.
17. On 24 December 2008 the Writs were issued, these being the general endorsed Writ with Dr Cohen as lead plaintiff and that in the name of Mr Arnold.
18. Oldham then went on leave. He was happy and relieved that the Writs had been issued. Further, in addition to the pressure caused by Mr Slidders departure, the year had been a stressful one for him as his mother had died of cancer. He admits that his ignorance in relation to s 33A of the Supreme Court Act and the appropriate procedures led to his failing to distinguish between the members of the class and the individual who would become lead plaintiff and as to the requirement to obtain express instructions from that lead plaintiff.
19. Oldham was on leave until approximately 10 January 2009. He then sought formal advice from Mr Tobin concerning the prospects of success of the Cohen proceeding. It would seem that Mr Tobin was on leave at this time and no immediate response was received. A circular letter was sent to all interested parties on the Farmers Database informing them of the issuing of the proceeding. On 30 January 2009 Mrs Cohen rang and spoke with Ms Diamond and there was some discussion about costs. It was confirmed with Mrs Cohen that she and her husband could "drop out" at any time and that numbers were being finalised. Ms Diamond did not make any reference to the fact that Dr Cohen was the lead plaintiff.
20. Two further factors then intervened. The earlier was the Black Saturday bushfires on 7 February 2009. The latter was that, on 13 February 2009, Oldham's wife went into labour and he went on leave. He remained on leave until 23 February 2009, essentially dealing with the matter by telephone, at times from the maternity hospital.
21. From the time of the Black Saturday bushfires on 7 February 2009 the situation, at least briefly, becomes a little more complicated as the streams of facts relating to the two fires become interwoven in some respects.
22. On approximately 11 February 2009, Oldham was contacted by a journalist from The Sunday Age. This journalist stated that he was aware of some possible legal action resulting from the fires and enquired whether the firm of Oldham Naidoo would be involved. Oldham recalled that many of the Ash Wednesday fires had been sparked by matters to do with power lines and Mr Tobin had referred to his experience in this regard. Given that, and given the research that had been done in relation to the alpine fires by Oldham Naidoo, Oldham considered that the firm may be interested. Having made some preliminary inquiries about possible involvement of power lines in the Black Saturday fires, Oldham spoke with the journalist again on approximately 13 February 2009 and confirmed that his firm would be interested in any proposed action. Whilst he planned to review the matter further, it was on this day that his wife went into labour and he went on leave.
23. On 15 April 2009 an article appeared in the Sunday Age which stated, incorrectly, that Oldham Naidoo had in fact issued proceedings. That matters unfolded in this way was not the subject of any real challenge.
24. When, after the birth of his daughter, Oldham contacted Ms Naidoo and Ms Diamond on 16 February 2009, he was told that there had been a constant stream of telephone calls arising from the article in the Sunday Age. He instructed Ms Diamond that he would not be able to speak to anyone, but she could take down the details of interested persons and advise that there were no costs involved as at this point in time. He further asked her to contact Mr Tobin in relation to the possible issuing of a Writ. He asked Ms Diamond to prepare a Writ and general endorsement and forward it to Mr Tobin for settlement.
25. Later on the same day, Ms Diamond contacted Oldham and informed him that she had received a telephone call from Mr Ken Adams of Freehills, he being a solicitor who was acting for SP AusNet, which entity had been named in the article in the Sunday Age as owner of the power lines. Mr Adams had indicated that he needed urgent advice as to the issuing of the proceeding as SP AusNet was a publicly listed company, needed to make disclosure to its members, and that there had been share price losses following the publication of the Sunday Age article. There was further pressure in that the prothonotary of the Supreme Court had rung asking when the writ was to be issued. Apparently there had been considerable media interest and inquiries, bearing in mind that the Sunday Age had incorrectly reported that the writ had already been issued. Thus, at this time, Oldham was under pressure from a number of directions, including the fact that he was spending a considerable amount of his time at the maternity hospital.
26. There was also no doubt, and it is admitted by Oldham, that he was aware of the fact that two other firms had been named in the Sunday Age article as expressing an interest in issuing an action, and Oldham wished to commence his firm's proceeding before anyone else issued. This haste, and the apparent reason for it, was the subject of some criticism by J Forrest J. The then Attorney-General was also critical at the time. There seem to be two schools of thought in this regard. One holds the opinion that a prudent solicitor would have waited until more information was known and possibly until the Royal Commission had investigated the Black Saturday bushfires. On the other hand, Mr Tobin gave oral evidence that it was his belief that proceedings should be issued as soon as possible after the fires and referred to the advantage of preserving evidence. It is not clear one way or the other whether Mr Tobin gave clear advice of this nature to Oldham, either in relation to Black Saturday bushfires or generally, but in any event, Oldham decided that proceedings should be issued forthwith. I accept that he was bearing in mind not only the pressures resulting from the incorrect reporting in the Sunday Age, but also wished his firm to have some advantage over rivals who might be contemplating the issuing of proceedings. He also believed that his firm was equipped to act in such a matter, given its recent experience and the access to Mr Tobins.
27. It was apparent to Oldham from a telephone discussion with Ms Naidoo that there appeared to be significant numbers interested in pursuing a class action. On the same day, Ms Diamond again rang Oldham, telling him that Mr Tobin was unavailable. Oldham directed her to contact Mr Doug Shirrefs of counsel, who had indicated some interest in actions such as these. Ms Diamond attended the chambers of Mr Shirrefs in order to have the Writ settled. As shall be discussed, a written advice from Mr Shirrefs was subsequently received.
28. Oldham has no recollection of discussing the issue of a lead plaintiff with Ms Diamond. He freely admits that he did not give her any specific instructions in this regard, as he was still unaware of the obligations of a lead plaintiff and the costs ramifications pursuant to Part 4A of the Supreme Court Act. Apparently the Writ was issued late on 16 February 2009. Oldham saw the final Writ at approximately 10.00pm that night. He noticed that Mr Leo Keane was named as lead plaintiff, and that was the first reference he had seen to him. He emailed Ms Diamond stating that the firm would need to speak to Mr Keane and that he should be told not to speak to the media. On 17 February Ms Diamond replied. She stated that she had not told Mr Keane that he was the lead plaintiff and asked what she should tell him. Oldham advised that she should just say that he was named and that the firm would write once numbers had been confirmed, adding 'just like 2003'. I accept that by this Oldham intended Ms Diamond to explain to Mr Keane that he had been named on the Writ but that he would be advised further once there was better information about the number of litigants in the class action.
29. On 17 February 2009 Oldham received a Memorandum of Advice from Mr Tobin. Mr Tobin noted that the general endorsement had not been served and could be amended before service without leave. He suggested various amendments. He also suggested that steps be taken as a matter of priority in relation to the forming of groups, the investigation of the fires and the assessment of damages. He also advised as to possible representation before the Royal Commission. He referred to funding procedures in this regard, this being based upon experience in 1977. Mr Tobin emphasised the importance of 'leading rather than responding' and suggested that various steps be taken as a matter of urgency.
30. On 18 February 2009 a series of emails passed between Ms Diamond and Mr Oldham. The essence of these was as follows. Oldham enquired as to whether Ms Diamond had spoken to Mr Keane. She replied that she had, and that he was not 'really happy about being put down - I said to him you are not the lead plaintiff'. Apparently Mr Keane stated that 'he would like to be taken off'. Ms Diamond added that 'I guess we can do that when we amend it after we speak with him'. The response of Oldham was in the form of two questions, namely, 'Did you speak to someone else about being lead - why him?' and 'He hasn't spoken to media?'. The response of Ms Diamond was that Mr Keane had not spoken to the media and had told them 'No comment', but his main issue was that the media had phoned him before he had spoken to the firm. Ms Diamond indicated that this was her fault 'because I should have called him that night'. She went on to state 'I didn't speak to anyone about being lead because they all said the same thing', adding that they all seemed interested, 'nice enough', and seemed to have a reasonable claim. The response of Oldham was 'Cool as long as he is okay'.
31. At this time, Oldham was still on leave following the birth of his daughter and has stated that he intended to meet with Mr Keane to discuss the claim prior to service of the Writ and intended to assess the costs once there was a better idea of numbers. It was also his intention at that time to have Mr Keane removed as the lead plaintiff as soon as this could be done. As events unfolded, Oldham was tardy in this latter regard.
32. On 26 February 2009, Oldham and Ms Diamond had a meeting with Mr Shirrefs. The issue of the requirement to obtain consent from a lead plaintiff to issue proceedings was raised. I accept that the oral advice received from Mr Shirrefs, subsequently confirmed in writing, was that there was no strict requirement for consent, but that it was probably better that such consent be obtained.
33. On 27 February 2009, Ms Diamond emailed to him a draft letter addressed to Mr Adams of Freehills. The heading of this letter commenced 'Class Action v S P Australia Networks...'. I mention this at this time because I accept that letters emanating from Oldham Naidoo concerning these matters routinely did not specify the name of the lead plaintiff. That seems to have been so whether the letters were directed to people such as Dr Cohen and Mr Keane, to members of the group or class, or to Mr Adams. I read nothing sinister into this. It seems to me to have been simply the manner in which letters from Oldham Naidoo concerning the fires were headed.
34. Returning to dealings between Oldham Naidoo and Mr Shirrefs, on 27 February 2009 Oldham received a Memorandum from Mr Shirrefs, this being in response to emails from Oldham. The Memorandum is quite detailed and is in the nature of a Memorandum of Advice. The Memorandum deals with both fires. Under the heading '2003 Fires' there is the following:

1. Your first question appears to be whether consent of the plaintiff is required to commence the group proceeding.
2. If a person has standing to bring the claim themselves, they have standing to bring it on behalf of some or all of the members of a group (section 33D(1) Supreme Court Act 1986...). Their standing persists notwithstanding that they might settle their personal claim. And another party can be substituted for the plaintiff.
3. However the plaintiff, having commenced the group proceeding, can only withdraw with leave from the court. It follows that, whilst there is no strict requirement for consent these matters and their implications should be fully explained to the plaintiff. (my underlining)
4. The email from Ms Diamond to Mr Shirrefs which seems to have prompted this response in relation to the Alpine bushfires reads, in its relevant parts, as follows:

We have named one plaintiff in our writ on behalf of a number of punters - however, we do not, as of yet, have consent from the named plaintiff to be the representative party.

Please advise what needs to be done to finalise the class on which we are representing. We also ask that you suggest anything further that needs to be done before we serve the document on the defendants.

1. I have set out the advice of Mr Shirrefs and the part of the email which prompted it in some detail. This is because there was a dispute as to the meaning of Mr Shirrefs' advice. Mr Star argued that he was in fact addressing the problem of consent in relation to issues such as a lead plaintiff withdrawing. I do not agree. Rather, I agree with the argument advanced by Mr Margetts. Mr Shirrefs may have been dealing with consent generally, but the 'first question' concerning which he is advising is clearly stated to be whether the consent of the plaintiff is required to commence the group proceeding. This appears even more to be the case when the email which provoked the answer is considered. It seems to me clear that his advice that there is no strict requirement for consent is addressing the very issue of the nomination and retention of a lead plaintiff. Even if this was not his intention, I have no doubt but that the recipient of the Advice could read it as meaning that, strictly speaking, there is no need to obtain the consent of a lead plaintiff.
2. Thus, we have a situation where, in circumstances of haste and pressure (and understandable haste in relation to the Alpine bushfires) Oldham, an inexperienced practitioner in the area of Supreme Court class actions, had obtained the advice of senior counsel and junior counsel. Senior counsel did not raise the issue of consent of a lead plaintiff. Junior counsel advised that it was not strictly necessary.
3. I would add that Oldham acknowledges that the further part of the Advice set out by Mr Shirrefs in paragraph 5 above - namely, that 'these matters and their implications should be fully explained to the plaintiff' was not followed, or was not followed with any speed.
4. It will be recalled that Mr Tobin had erroneously advised Oldham that the Writ in relation to the Alpine bushfires, having been issued, need not be served for 12 months. At some time, either whilst on Christmas leave or shortly after returning, Oldham had carried out his own investigation into what was required by the Supreme Court Rules and had come to the conclusion that there was a problem with the concept that 12 months was available. Indeed, on 25 February 2009, he forwarded to Mr Shirrefs a copy of Order 18A.03(2) of the Supreme Court (General Civil Procedure) Rules 2005. In the same Memorandum to which I have previously referred, Mr Shirrefs expressed the view that the Writ and Summons should be served 'before 60 days after filing has elapsed'. By this stage, some 49 days had passed after filing. As I understand it, Oldham Naidoo went ahead with service virtually immediately.
5. The evidence of Oldham is that he understood from the Memorandum of Mr Shirrefs that the consent of neither Dr Cohen nor Mr Keane to be named as lead plaintiff was required, and the proceeding could continue. He noted that he would need to make costs disclosure to each of them, and it was his intention to make full disclosure to all group members in relation to costs once the number in each class action had been clarified. He also noted from the Memorandum that the nominated lead plaintiff could be substituted. His evidence was that, at the time, he did understand the importance of the question of who should be lead plaintiff but thought that changes could be easily made. I accept that this was his belief. I can also understand how he came to form that belief. Of course, this does not excuse what occurred, and the fact that Oldham is pleading guilty to the offences underlines this.
6. It is not contested but that, from approximately 24 February 2009, the Keane proceeding was effectively run by Ms Naidoo and Ms Diamond with Oldham attending meetings on an occasional basis. Nevertheless, he accepts responsibility in relation to its conduct up until 14 May 2009, this being in essence the end date for charges relating to the Keane proceeding as nominated by the LSC. It is the date upon which Oldham Naidoo and Maurice Blackburn Lawyers entered into an agreement, with the approval of Mr Keane, jointly to conduct the proceeding relating to the Black Saturday bushfires.
7. This last mentioned development occurred following meetings between Oldham and Ms Naidoo with Mr Bernard Murphy (now His Honour Justice Murphy of the Federal Court), which meetings seem to have commenced on or about 17 March 2009. The Writ and general endorsement, with Mr Keane named as plaintiff, had been served on or about 5 March 2009. At the initial meeting Mr Murphy was informed that Mr Keane would need to be replaced with a more appropriate lead plaintiff, but a question of Mr Keane's consent or the failure to obtain same was not raised, as it was not seen by Oldham to be an issue for the reasons set out above. Mr Murphy, on behalf of Maurice Blackburn Lawyers, then seems to have carried out a period of what could be described as due diligence. There were further meetings. There was further contact with both Mr Tobin and Mr Shirrefs regarding various procedural steps and the like. An Amended Writ and amended general endorsement were filed and served, with reference to one particular fire (at Beechworth) being removed. Oldham was not involved in this particular decision. Ultimately, a joint venture agreement with Maurice Blackburn Lawyers was reached on 14 May 2009, as referred to above. Thereafter, Oldham continued to attend a monthly meeting with Maurice Blackburn Lawyers until approximately December 2009, but otherwise had no involvement with the conduct of the Keane proceeding. It is to be remembers that, essentially, the LSC is not relying upon matters that occurred after 14 May 2009.
8. In relation to the Cohen proceeding, Oldham Naidoo continued to act for those involved in the Alpine bushfire litigation and did not share the conduct of the matter with any other solicitors. Dr Cohen continued as lead plaintiff and, whilst there were communications with the Cohens and others concerning the progress of the matter, he was still not informed that he was in fact the lead plaintiff. The Cohens completed a work book to assist Oldham Naidoo in the conduct of the matter. In May 2009 it was confirmed with them that there would be no costs until a costs agreement had been forwarded. There were discussions concerning the nature of the losses sustained by the Cohens. Oldham assumed from this that the Cohens were aware of the proceeding and that they were keen to try and retrieve their losses, but would make their final decision in this regard once costs had been clarified. I accept that Oldham simply treated the Cohens as the firm treated the other members of the class and continued to give no thought to any problems associated with the position as the lead plaintiff.
9. There then commenced a lengthy pleadings battle. I accept that Oldham believed that his firm would absorb any costs associated with the deficiencies in the pleadings and that, effectively, he could advertise for a lead plaintiff once pleading issues were at an end. However, this became a protracted pleadings battle involving amendments to the Statement of Claim which, in turn, involved Mr Tobin and Mr Panayi of counsel. Throughout these pleadings disputes, which persisted into 2010, there were no fewer than four costs orders made against Dr Cohen as nominated plaintiff. None of these was pursued and it is not suggested that Dr Cohen is out of pocket because of them. The fact remains that they were made and a liability on his part in respect to the payment of them was created.
10. Dr Cohen's son is a lawyer. The fact that there had been a costs order made against his father came to his attention. On 26 October 2010 Oldham first became aware that there was a problem with Dr Cohen being the lead plaintiff. This followed an email from Herbert Geer, solicitors, acting on behalf of Dr Cohen. Oldham advised those solicitors that there had been no costs agreement with Dr Cohen and that it was his, Oldham's, intention to replace him as lead plaintiff. Subsequently Oldham confirmed that Dr Cohen was not liable for any costs. Thereafter steps were taken in regard to the replacement of Dr Cohen as lead plaintiff. Mr Tobin and Mr Panayi were consulted. Ultimately there were the proceedings before J Forrest J in the Supreme Court. It is not suggested that Dr Cohen was in any way out of pocket due to all of this, but Oldham Naidoo, by agreement, appear to have borne certain costs.
11. The above is my summary of the facts. Much of it is drawn from the witness statement of Oldham which he adopted on oath and which I accept. I am not of the view that the extensive cross-examination caused any major shift in position from that witness statement.

1. As indicated, the character evidence on behalf of Oldham was most impressive. I have already referred to those who gave oral evidence. Each of those witnesses spoke in very favourable terms of the honesty, competence and fine character of Oldham. In addition, there were a considerable number of written references. To mention just a few of these, there is a reference from Mr Frank Jones, a retired magistrate and Registrar of the High Court of Australia for 26 years. He has referred to Oldham's attention to detail, and stated that he could vouch for Oldham's character and integrity. Mr Samo, a lawyer who is also qualified in engineering and architecture and who is a mediator of this Tribunal, has written of his admiration for Oldham's honesty, integrity and commitment to his professional values and has also referred to the fact that, as a mediator, he found Oldham to be skilled and encouraged clients to move to a position to settle a dispute which otherwise would have incurred considerable sums of costs. Mr Adrian McGirr, a mediator who has also been a pre-hearing Registrar of the Magistrates' Court, has stated that Oldham 'has always been meticulously prepared, and in all our dealings his honesty, accountability and ethical behaviour could not be questioned'. He has gone on to say that he found Oldham to be a person of high integrity who always had his client's best interests at the forefront of his mind.
2. Mr Darren Noble, who is the principal of Noble Lawyers of Queen Street, Melbourne, has been a regular opponent of Oldham and has known him in a professional capacity since 2000. He states that he has found Oldham to be an honest practitioner who has conducted himself with the utmost professionalism and who has always represented his clients in an ethical and competent manner. Mr Noble has also written that he considers Oldham to be of excellent character and a person who is widely respected by his peers. Mr Neil McPhee of Neil McPhee & Associates, legal practitioners, who specialise in domestic construction law and owners corporation law, has also known Oldham since 2000, usually in the role of representing an opposing party. Mr McPhee has stated that, without exception, he has found Oldham to be a highly competent, very well organised and scrupulously forthright practitioner. He has gone on to observe that Oldham does not run an argument or a matter simply for the sake of it and, which is of great importance to his clients, adopts a sensible and commercially realistic attitude towards litigation.
3. Mr John Bolton, who was a member of The Victorian Bar until his retirement in 2006, knew Oldham since 1999 and had been instructed by him in various substantial contested matters, including some in the Supreme Court. Mr Bolton has described Oldham as a man of utmost honesty and good character, and uncompromising in his ethical standards when dealing with the Court, his clients and opponents. Mr Bolton has also stated that he has never heard the slightest complaint or suggestion that Oldham's behaviour was anything less than of the highest standard. There is also a glowing testimonial from Mr and Mrs PA Gleeson, who have been clients of Oldham since 2004, Oldham having acted for them in a couple of particularly difficult matters, one of which reached the Supreme Court. An interesting reference is that of Mr Peter Welsh, chairman of Williamstown CYMS Amateur Football Club. Oldham has been associated with that club since 1994, having been involved in many capacities, including at the playing and coaching level. Mr Welsh regards Oldham as a man of good character, a man who keeps his word and a man who is prepared to put the benefit of others ahead of his own. There are other written references, and essentially, they reflect what has been set out above.

1. The submissions of Mr Star and Ms Bennett on behalf of the LSC could be summarised as follows.
2. Any Orders should reflect that Oldham is guilty of the charges to which he has pleaded. Pursuant to s 4.4.19(k) of the Act, he should be reprimanded in respect of each of the charges of which he has been found guilty. Pursuant to s 4.4.17(b) and (c) of the Act, his local practising certificate should be cancelled and no practising certificate should be granted to him for a two year period.
3. Reference is made to decisions such as Woods and Geary v The Legal Ombudsman [2002] VSCA 133, where it was said that the discipline imposed in hearings such as this, whilst punitive in its application to the practitioner involved, is very largely protective of the public interest. Thus, the Tribunal's disciplinary powers are punitive as well as protective - see Quinn v Law Institute of Victoria Limited [2007] VSCA 122. Reference is also made to the observations of Ross J in Legal Services Commissioner v Brott [2008] VCAT 2399. Both the public and professional colleagues must be able to have confidence in legal practitioners. Both specific and general deterrence are relevant to the exercise of the Tribunal's disciplinary powers. In the present case, the protection of the public requires Oldham's practising certificate to be cancelled for at least two years. This is particularly so when the necessity for general deterrence is borne in mind. Oldham was responsible for the issuing and maintaining of proceedings in the name of a plaintiff without instructions so to do in two separate substantial Supreme Court proceedings. This is extremely serious, and reference is made to the observations of J Forrest J.
4. It has long been established that a lawyer does not have authority to institute a legal proceeding on behalf of a client without instructions. This is essential to the proper conduct of legal business and there is substantial public interest in it - see Younge v Toynbee [1910] 1 KB 215. Further, the proceeding in relation to the Alpine bushfires, which was ultimately dismissed, might never have been issued but for Oldham acting without the authority of a plaintiff. There is also to be borne in mind the costs orders made against Dr Cohen of which he was unaware. Further, affidavits sworn by Oldham during the conduct of the proceeding referred to him as having been retained by and having the conduct on behalf of the plaintiff. It is not suggested by the LSC that Oldham knowingly lied in stating such matters in affidavits, although it is an aggravating factor.
5. In relation to the Black Saturday bushfires, the sole motivation which caused Oldham to commence proceedings was because it was in his firm's financial interests so to do. Both proceedings were issued with undue haste and, in particular, there is a contrast between the care which Maurice Blackburn Lawyers took over some eight weeks before agreeing to conduct the proceedings jointly and the approach adopted by Oldham to commence proceedings within ten days of the Black Saturday fires. An aggravating feature in relation to his behaviour was that he issued the Black Saturday proceedings so quickly because of his self-interest in wanting his firm to be the first to issue the action. Reference is made to observations of J Forrest J in Matthews Ruling No 1 and to the fact that firms such as Slater & Gordon stated publicly that it was premature to be considering a class action until the findings of the Royal Commission were released.
6. Another aggravating feature in relation to the Keane proceeding is that Oldham ignored the clear instructions of Mr Keane to remove him as the named plaintiff. Whilst he knew as early as 18 February 2009 that Mr Keane wished to be so removed, no steps had been taken in this regard prior to 14 May 2009. This failure to remove Mr Keane was significant in light of Mr Keane's exposure to publicity and to costs orders.
7. In each instance Oldham neglected to inform the lead plaintiff of the potential exposure in commencing proceedings. He issued and conducted the proceedings whilst not being aware of the obligations upon the lead plaintiffs as set out in Part 4A of the Supreme Court Act and in particular in s 33ZD. He did not know the obligations involved and, as a result, did not inform either Dr Cohen or Mr Keane. His ignorance of the rules relating to class actions was in fact an aggravating factor, as opposed to a mitigating factor. Consultation with a readily available text book, such as Class Action Law and Practice by Peter Cashman, would quickly have revealed what was required and the potential risks. Oldham could have either undertaken some research himself, caused someone else in the firm to undertake research, or properly briefed counsel so to do. Reference is made to what was said in Vulic v Bilinsky [1983] 2 NSWLR 472, 483. Oldham should either have informed his clients (Dr Cohen and Mr Keane) of his inexperience in relation to class actions or should have put before counsel proper material upon which an advice could be based.
8. Further, a solicitor has an independent duty, which is not ousted or superseded by engaging counsel, to assess counsel's advice and, proposed course of conduct. A solicitor should make an independent assessment of whether the proceedings should be instituted. Various authorities are referred to in relation to these propositions, including Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134.
9. The charges of the LSC were brought on 22 February 2012. Oldham had not notified the LSC of his intention to plead guilty until one working day before the hearing. He did not plead guilty at the earliest opportunity to do so and is not entitled to some form of discount or credit in this regard.
10. In relation to the character evidence, good character is not a question of the opinion which others may hold in relation to the legal practitioner, but is to be judged by his or her actions and motivations - see, for example, Forster v Legal Services Board [2011] VCAT 2216. It is acknowledged that no previous matters are known against Oldham.
11. In summary, the orders sought by the LSC, including the cancellation of Oldham's practising certificate and that no practising certificate be granted for a two year period, should be made.
12. Whilst there may have been no dishonesty in the present case, grave mistakes were made. There is a clear distinction between what occurred in this case and a couple of cases involving relatively small claims in the Magistrates' Court where proceedings were issued without the practitioner having instructions. The present case involves two substantial pieces of Supreme Court litigation. It involves incompetence and ignorance by a practitioner operating outside his area of expertise and without undertaking or organising adequate research. It involves the use of counsel in an unprofessional way, with no proper briefing and a failure to follow counsel's advice. It also involves no proper supervision of staff and, in the case of Mr Keane, a failure to follow quite explicit instructions. These matters underline the submission of the LSC that this is a serious case warranting the imposition of the penalties sought in the proposed Orders.
13. Further, the penalty of interference with a practising certificate is not restricted to cases involve dishonesty. Reference is made to the decision in Delahunty v Law Institute of Victoria Limited [2012] VCAT 524 and Legal Practitioners Conduct Board v Clisby [2012] SASCFC 43. The public should be protected from the ignorance of legal practitioners. Whether the profession would be brought into disrepute should also be considered.
14. In a case such as this, general deterrence is of great importance. If there is no interference with Oldham's practising certificate, the penalty imposed would be manifestly inadequate. An order restricting Oldham from acting in group or class proceedings would not properly protect the public.
15. In considering what is a fair and moderate penalty, the Tribunal should have regard to these matters and to all interests, and not just to the personal effect on Oldham. The penalties sought to be imposed by the LSC are fair, moderate, and appropriate given the gravity of the misconduct.

1. The submissions of Mr Margetts and Mr Andrew on behalf of Oldham could be summarised as follows.
2. The Tribunal should not rely upon the observations and comments made by J Forrest J in the Supreme Court proceedings as being, in effect, evidence. In those proceedings, Oldham did not give oral evidence and was not given the opportunity so to do for a number of reasons. At that time, the professional indemnity insurer of Oldham's firm had taken over the conduct of proceedings. J Forrest J specifically stated that whether Oldham was motivated by altruism, incompetence or greed was for others to determine, recognised the need for an investigation and stated that, because there could well be a further disciplinary hearing, it was not appropriate for Oldham to be cross-examined. It is not correct to suggest that the observations of J Forrest J could constitute evidence which the Tribunal can take into account in regard to penalty. Further, it would be wrong to say that he intended that his remarks be so used.
3. Further, at this hearing, the Tribunal has had the opportunity of hearing the evidence of Oldham, including his cross-examination; of hearing and reading character evidence; and of considering affidavit material. This evidence, which was not before J Forrest J, is the evidence upon which the Tribunal should act in relation to penalty.
4. One essential feature, which was not known to J Forrest J, is that there is no suggestion that Oldham was acting in a dishonest way. Counsel for the LSC stated specifically that the charges were not predicated upon dishonesty, and that is clearly the situation. Oldham was subject to lengthy and vigorous cross-examination. At no stage was it put to him that he was being untruthful in his answers or that he was lacking in candour. Given the manner in which he gave his evidence, this was appropriate. It was quite apparent that he was a witness of truth. He was never evasive, and frequently gave answers which were against his interests. Further, the supporting character evidence, which was compelling, can be taken into account in assessing his truthfulness.
5. In relation to the disciplinary powers of this Tribunal, there is an objective of specific and general deterrence and it is expected that the Tribunal will choose that sanction which maximises the protection to the public - see Quinn. The starting point in the present case is that the Tribunal should assess whether Oldham should be found to be unfit to practise. Matters such as the circumstances of the practitioner and of the conduct should be taken into account.
6. In relation to the Cohen proceeding, the circumstances are these. Oldham had no experience in running class actions and took over the relevant file from a partner who had left the firm and gone to America. Upon reviewing the file, Oldham became concerned about limitation periods and preserving possible rights, and knew that, effectively, the proceeding had to be issued before Christmas 2008. Ms Diamond had identified claimants who were interested in joining in the proceeding and the idea was to issue a class action so as to preserve their rights. In this regard, Oldham briefed and instructed Mr Timothy Tobin of Senior Counsel. As a result of advice received from Mr Tobin, Oldham believed that he could issue the proceeding but need not serve it, effectively being able to 'sit on it' for a year. On conferring with Mr Tobin on 19 December 2008, it was determined to define the class sufficiently for the purpose of the proceeding, and the types of losses suffered by two potential lead plaintiffs, Dr Cohen and Mr Richards, were discussed. Further advice was received from Mr Tobin on 23 December 2008. Whilst Oldham is not sure of exactly how the final decision in relation to the lead plaintiff was reached, he accepts responsibility for it. Accordingly, the Writ was issued on 24 December 2008. Oldham did not understand the significance of naming Dr Cohen as lead plaintiff, his belief being that any member of the class could be so named and that this was not 'set in stone'. This incorrect belief is consistent with the correspondence sent out at the time. Although it is admitted that it should have been, the issue of who was named as lead plaintiff was not treated as a big issue.
7. Oldham's mistaken belief as to the issue of consent of the lead plaintiff was then reinforced by the opinion obtained from Mr Shirrefs of counsel. This advice, which was received before the commencement of the proceeding in relation to the Black Saturday bushfires, effectively confirmed that consent of the lead plaintiff was not required. It is freely admitted that Oldham did not follow through on the second part of the advice of Mr Shirrefs, namely that all matters and their implications should be fully explained to a lead plaintiff, even if, in Mr Shirrefs' opinion, there was no strict requirement for consent. Oldham's misunderstanding was that changes could be made easily. When the advices of Mr Tobin and Mr Shirrefs, along with the beliefs of Oldham, are borne in mind, it is clear that some general confusion existed in relation to lead plaintiffs, and indeed such confusion still exists today. When all this is considered, along with the conference between Oldham and Mr Tobin, what occurred becomes more understandable, although not excusable. It was not done with any dishonest intent, but due to professional error.
8. During 2009, the firm of Oldham Naidoo continued to be in contact with Dr and Mrs Cohen. The pleading battles in relation to the Alpine bushfire continued until October 2010. Little attention was paid to the issue of the lead plaintiff. Particularly after receiving the advice from Mr Shirrefs, Oldham believed that he was not required to obtain any consent of a lead plaintiff, but, as stated by him, it was his intention to make full disclosure to all group members in relation to costs once a better idea of numbers had been obtained. He also continued to believe that the lead plaintiff could be substituted at any time. On behalf of the LSC, it is not asserted that Oldham did not hold these beliefs, and honestly hold them, and the contrary was not put to him. Oldham does not seek that his behaviour be excused by reason of counsels' advice. However, it is clear that he honestly held these beliefs and was not pursuing some scheme whereby he was wrongfully advancing his own interests at the expense of those of either Dr Cohen or Mr Keane. Essentially, none of this material was before J Forrest J.
9. What happened was that Oldham made a professional error based on a misunderstanding of the Rules relating to class actions, and that error or misunderstanding continued until the Cohen proceeding was struck out. It has not been contended by the LSC that Oldham considered the issue and deliberately followed a course of conduct to hide from Dr Cohen that he was the named plaintiff. Indeed, it is apparent from the evidence of Mr Tobin that Oldham was shattered when he heard that he had 'got it wrong'. The costly error may now appear obvious, but it is to be remembered that both senior and junior counsel were involved, so that Oldham's error and behaviour, whilst not excusable, becomes more understandable. At the time, Oldham was a young solicitor, placing reliance on counsel. Given the observations of J Forrest J and the resultant publicity, it is safe to assume that, in the future, practitioners will not enter into class actions without proper instructions - see Cohen Ruling No 2 [41]. These observations impact upon and deal with the concept of general deterrence.
10. What occurred in the Keane proceeding should also be subject to the same factual analysis. Oldham has openly admitted that, in relation to the issuing of the Keane proceeding, he wanted to act quickly and there are various reasons given by him for this. This was not wrongdoing by him and is not a proper ground for complaint under the Act. The situation also relates back to the circumstances surrounding the failure to obtain consent from Dr Cohen. At the time of initiating the proceeding with Mr Keane named as lead plaintiff, Oldham was under considerable pressure, professionally and domestically, with his wife about to give birth and the birth then actually occurring. In addition, over the years, there has been a great desire for solicitors to be first in line in issuing writs, and the fact that such occurred should not have any adverse affect upon any assessment of Oldham's character. It is to be remembered that Oldham's father had practised in relation to bushfires, this being in conjunction with Mr Tobin, and Mr Tobin's evidence was that it was desirable that proceedings be issued quickly after a fire, and particularly one where allegations concerning power suppliers are involved. Oldham went wrong in perpetuating the same mistake made in relation to Dr Cohen, namely the failure to obtain consent. That failure was based upon the same misunderstanding of what was required.
11. The following should also be noted about the pressure which Oldham was under at the time of commencing the Keane proceeding. Apart from his wife giving birth, there was the contact from the Sunday Age and the misreporting to the effect that proceedings had already been issued. There was then the contact from Mr Adams of Freehills and his concern about when the Writ would be issued, bearing in mind that the article in the Sunday Age had resulted in an adverse affect on the share price of his client. There was the contact from the prothonotary of the Supreme Court concerning numerous enquiries which had been made. During much of this, Oldham was on leave and attending at the maternity hospital. Further, because of what had previously occurred, these events took place whilst Oldham still had the belief that he had proper consent and that formal consent from Mr Keane was not required.
12. Mr Keane was aware that he was the named plaintiff and, by 18 February 2009, was expressing his desire to be removed as he did not enjoy the media attention. That he made this request and that it could have been acceded to more promptly is not denied, but it is also noted that Mr Keane has not complained to the LSC or to Oldham Naidoo concerning the time which it took to remove him as lead plaintiff. Indeed, on 14 May 2009, Mr Keane consented to the proceeding being adjourned pending the Royal Commission without his first been removed as lead plaintiff. Mr Keane remains a member of the group. Reference is also made to the evidence of Ms Naidoo, which evidence was not available to J Forrest J.
13. As a matter of fact, Oldham did not have the care and conduct of this proceeding after his return from leave following the birth of his baby on 23 February 2009. Conduct of the matter then rested with Ms Naidoo. Apart from not having conduct, Oldham had little involvement with the Keane proceeding after 15 April 2009.
14. It is repeated that the initial failure to obtain the appropriate consent from Mr Keane did not arise out of the desire to issue the Writ at the earliest possible time, but arose out of the same professional error as that made in the Cohen proceeding. Thus, charges 1 and 4 against Oldham are related. The same mistake in relation to the Rules permeates both charge 1 and charge 4.
15. It cannot be said that Oldham is not a fit and proper person to hold a practising certificate. Charges 1 and 4 do not involve dishonest conduct, unethical practise or any deceit. This places the matter far apart from the conduct in some of the decisions to which the LSC has referred. For example, Delahunty was a case which, although it involved a misunderstanding, related to a large number of serious trust account irregularities.
16. In relation to charge 7, which is related to charge 4, and essentially concerns the maintaining of the Keane proceeding without removing him as lead plaintiff, whilst Oldham accepts that this was his professional responsibility, it does not appear to have been of any great moment to Mr Keane, who has not complained concerning this. Maurice Blackburn Lawyers also failed to take any steps to remove Mr Keane, and instead arranged for Ms Naidoo to obtain his consent to adjourn the proceeding pending the Royal Commission. On the basis of the evidence presented, and reference is made to the evidence of Ms Naidoo, Mr Keane does not seem to have been troubled by this.
17. Further, Oldham did not have the daily care and conduct of the Keane proceeding after 23 February 2009, although he has not attempted to shift the blame to anyone else. He disclosed the situation and full disclosure was made at an early time. Whilst perhaps he should have pursued this issue of replacement of Mr Keane with more diligence, his failure so to do was not based upon any dishonesty, deceit or unethical practise. Given the circumstances surrounding charge 7, a finding that he is not a fit and proper person to hold a practising certificate is not justified.
18. Charges 10 and 11 essentially deal with Oldham conducting each proceeding whilst not knowing of the obligations on claimants and lead plaintiffs contained in Part 4A of the Supreme Court Act. The following points should be noted.
19. Class actions are rare and are a specialty. There has been, and still is, confusion as to what is required by way of consent. This has even been evident in the present proceeding when it was suggested in cross-examination of Oldham that consent of the class is required. This is clearly not so - see s 33E of the Supreme Court Act.
20. Whilst it is not an excuse, it is fair and reasonable to expect senior counsel and junior counsel to have provided some guidance to a solicitor, whom they knew to be inexperienced in the area, as to the requirements of the Rules. Upon reflection, his reliance upon them should have been considered by counsel engaged from time to time.
21. Charges 10 and 11 do not indicate that Oldham is not a fit and proper person to hold a practising certificate. They established the obvious need for legal practitioners in times of increasing specialisation to be properly trained and educated in respect of matters in which they act. It is noted in passing that the Civil Procedure Act 2011 (Vic) has introduced new forms and procedures in relation to the issuing of proceedings.
22. Bearing in mind the above, the Tribunal should conclude that Oldham is a person of good fame and character. That being so, the issues of specific and general deterrence need to be considered further, as well as the issue of comparative sentencing. In relation to specific deterrence, reference is made to Oldham's evidence and the adoption of his witness statement. He has clearly learnt a lot about the practise of law and the obligations of legal practitioners. The Tribunal can be confident that he will not offend again, this being reinforced by his impeccable professional and personal history. These matters have caused him great distress. They have also caused him great embarrassment in front of his peers, and particularly his family with its strong legal connections, but it is also noted that his family have supported him throughout. Oldham has been worried and concerned about this case. He has lost weight. He would readily consent to an order requiring him to undergo further legal education should this be thought necessary, and to refrain from acting in proceedings under Part 4A of the Supreme Court Act until further order.
23. In relation to general deterrence, the following points should be noted. Class actions are rare. The widespread adverse publicity in relation to this matter has sent out a warning to the legal profession in Victoria about acting in class actions without relevant expertise. Reference is made to the comment of J Forrest J in Cohen (No 2) and particularly at paragraph [41] to the effect that any competent practitioner must now be aware of the risk of issuing a case without authority. What has occurred to Oldham and the widespread publicity it received, including the remarks of J Forrest J, largely satisfies the need for general deterrence. The imposition of a reprimand would add to general deterrence.
24. In relation to comparative penalties, reference is made to the decision in Victorian Lawyers RPA Limited v Hession [2000] VLPT 12. That decision concerned a solicitor who, essentially, was acting in conjunction with a firm of panel beaters and who was found guilty of misconduct in that he purported to act as the practitioner for a complainant and her husband and commenced legal proceedings in the Magistrates' Court without first speaking to them, obtaining full instructions, clarifying his instructions and like. There were other charges. The penalty imposed in this instance by the Legal Profession Tribunal was a fine of $15,000 plus costs.
25. Reference is also made to the decision of Legal Ombudsman v Battley [1999] VLPT 6. Battley's misconduct also involved a panel beating firm and there is a factual similarity to what occurred in Hession. The Tribunal was satisfied that Battley had issued proceedings without instructions, and had not advised in relation to costs and the like. Reference is made to the fact that the offences flowed from the improper commencement of the proceeding without instructions. It is apparent that Battley was fined $25,000 in total, plus costs. The penalties imposed in these matters (and it should be remembered that Hession appealed unsuccessfully) should be borne in mind as they relate to situations where practitioners acted without instructions. Such cases are not particularly easy to find.
26. Other important considerations on penalty are as follows. The firm has suffered serious financial losses as a result of the conduct of the proceedings. No fees were ever charged or received. A large amount of work went into the proceedings. Disbursements were unpaid. Excesses had to be paid to the insurer. It is estimated that the total losses in this regard are in the order of $100,000. Furthermore, Oldham is very embarrassed by the fact that his errors effectively caused his partner to work for almost two years on a file or files that were ultimately totally non-productive. Oldham's own financial circumstances should also be borne in mind. His wife does not work and he has two young children. There is a home in Williamstown valued at approximately $1M, but there are combined mortgages of $750,000. He has a modest motor vehicle valued at approximately $10,000. From Oldham Naidoo he receives approximately $120,000 per year, but, after mortgage repayments, he is left with only a little more than $500 per week.
27. Any period of cancellation or suspension of his practising certificate would affect not only Oldham and his family, but also his clients and the firm. As the Tribunal has heard, he has loyal clients, particularly in relation to building cases, and these could well be lost to the firm should Oldham's practising certificate be suspended or cancelled. This Tribunal should also bear in mind the great remorse shown by Oldham and the apology that he has made to all concerned.
28. In summary, it is appropriate that Oldham be reprimanded and, if thought necessary, fined, and, again if necessary, with conditions placed upon his right to practise, but there should be no loss of his practising certificate. The loss of a practising certificate has always been the preserve of charges involving dishonesty or in relation to conduct that has been disgraceful. Oldham's conduct does not fall into either of these categories.

1. Firstly, Oldham having pleaded guilty to charges 1, 4, 7, 10 and 11, as earlier set out, I find that those charges have been proved and he is found guilty on each of them.
2. Secondly, I am satisfied that, on each charge, there should be an order reprimanding Oldham pursuant to s 4.4.19(k) of the Act. Such an order seems to me to be appropriate and there was no argument of any substance to the contrary.
3. Thirdly, I order that Oldham pay to the LSC the sum of $30,000 in respect of its legal costs. I readily accept that the costs of the LSC comfortably exceed this amount. I shall hear any submissions as to a stay or as to the method of payment of this amount.
4. I turn now to the question of the issue of Oldham's practising certificate. As was stated at the commencement of this hearing, the question of whether there should be suspension or cancellation of Oldham's practising certificate lies at the heart of the contest. I am of the opinion that an order pursuant to s 4.4.17 of the Act cancelling or suspending Oldham's practising certificate should not be made. I am of the view that, pursuant to s 4.4.19(g), an order imposing conditions in relation to Oldham's practice should be made. I should add that, bearing in mind the financial burdens to which Oldham and his firm have already been subject and the significant sum which he will now have to pay in relation to legal costs, I am not minded to impose a fine pursuant to s 4.4.19(b).
5. In relation to my decision not to order suspension or cancellation of Oldham's practising certificate, I would make the following points, which are not necessarily listed in order of importance or significance.
   • (a) It was emphasised by Mr Star that the test to be applied in relation to practising certificates for the purposes of s 4.4.3(1)(a) incorporates, but differs from and is broader than, that which operates in relation to the "fit and proper person" test contained in s 2.4.7(2) of the Act. There is no requirement for the LSC to prove that a practitioner is not a fit and proper person. Protection of the public and general deterrence are major considerations. I appreciate this distinction, but there is a certain amount of merger between the two concepts and the consideration of whether a practitioner is a fit and proper person can be a fundamental matter warranting significant attention. Of course, protection of the public and general deterrence are of paramount importance, but these can clearly overlap with the consideration of whether a practitioner is a fit and proper person.
   • (b) What is of importance and should be again mentioned at the outset is the issue of the observations of J Forrest J in the relevant applications before him. I have already dealt with this at paragraph [9] and following above. I agree with the submission of Mr Margetts to the effect that the observations of J Forrest J do not bind me and that they do not constitute evidence in the hearing before me. There is certainly the most patent of evidence that J Forrest J made these remarks but I take the submission of Mr Margetts to mean that they are not evidence in the sense of determining facts. Of course, some of the findings in the various applications may well constitute findings of fact.

Whilst I agree with what I understand to be put by Mr Margetts, I am not of the view that the remarks of J Forrest J concerning the behaviour of Oldham are to be disregarded or to be put lightly to one side. With respect, I view them as serious and important observations made by J Forrest J on the basis of the material that was before him. I might add, again with respect, that on the basis of that material, his Honour's remarks and the sense of outrage at Oldham's behaviour which comes through them, is fully understandable. However, in relation to the material that was before J Forrest J, I would make the following comments.

As stated earlier, I would refer again to the very considerable editing and reduction of the affidavit material. I accept that his Honour was not given anything like the full picture of what had occurred. There is no indication, and it was not suggested on behalf of the LSC, that, for example, there was anything before J Forrest J in relation to conferences with and advice from Mr Tobin, the advice of Mr Shirrefs, or to the pressures to which Oldham was subject as at the time of commencing the Keane proceeding. I have set out many of these above, and it was not suggested by the LSC that a considerable number of them were put before J Forrest J.

Without reciting each and every circumstance that was placed before me, and comparing same with what was before his Honour, I am satisfied that the difference is quite substantial. Of course, I had the additional benefit of hearing Oldham's evidence, hearing lengthy and vigorous cross-examination of him and listening to the evidence of Ms Naidoo. Those matters are in addition to the oral evidence of Mr Tobin and a consideration of the character evidence.

In summary, I have certainly taken into account the observations of J Forrest J and given them serious regard. However, I have been persuaded that there was not available to him a large amount of evidence, both oral and written, which has been placed before me. In my view, this must, of necessity, have some effect upon the weight to be attributed to his Honour's observations, given the different evidentiary context in which they were made.

(c) There is no escaping the seriousness of the errors made by Oldham which constitute professional misconduct and concerning which he has pleaded guilty. However, the circumstances prevailing provide an explanation, although not an excuse, for the behaviour of someone who has otherwise never offended and who is, and has been, highly thought of by the legal profession and in the community. I shall now deal with some of those circumstances.

• (i) The departure of Mr Slidders and the investigation of the state of his files left Oldham in a highly pressurised situation. The year had already been a bad one for Oldham with the death of his mother due to cancer. Examination of the file in relation to the Alpine bushfires revealed that there had been inactivity on the part of Mr Slidders and that the limitation period was about to expire. Oldham, being totally inexperienced in relation to class actions of this type and bushfire litigation, consulted Mr Tobin, a senior counsel whom, through his father, he knew to be experienced in such litigation. He was given wrong advice in relation to being able to issue the class action and then 'sit on it' for twelve months before service. The priority was to issue the proceeding and preserve the rights of those who had shown interest in it, but on whose behalf Mr Slidders had apparently been inactive. Of course, what would happen in relation to Oldham's firm would also have been prominent in his thinking. Counsel did not say anything to him in relation to the issue of the consent of the lead plaintiff, nor did Oldham ask. The situation was compounded in early 2009 by the advice obtained from Mr Shirrefs that consent of the lead plaintiff was not strictly necessary. In these circumstances lies the genesis of much of what transpired.

• (ii) In early 2009, and at the time of the issuing of the Keane proceeding, Oldham was subject to a different set of pressures. Oldham's wife went into labour and gave birth to their daughter. He was on leave at the critical time and giving many instructions from the maternity hospital. Of course, he should have handed over the conduct of the matter when he was potentially not in a situation where he could give it his full attention. However, the fact remain that this was an additional pressure upon him.

  There was then the incorrect information placed in the Sunday Age concerning Oldham Naidoo having already issued the Black Saturday bushfire proceeding. This was followed by the telephone call from Mr Adams of Freehills and the concern and interest expressed by the prothonatory of the Supreme Court.

  It is also to be remembered that Oldham or his firm had been in contact with Mr Tobin. It is Mr Tobin's strong opinion that, in relation to fires associated with power lines, proceedings should be issued as quickly as possible. Whether or not this opinion was passed on to Oldham or was in his mind at the time is not entirely clear.

• (iii) Whilst he does not seek to place the blame elsewhere, the fact of the matter is that, after returning from leave on approximately 23 February 2009, Oldham's contact with the Keane proceeding was very limited. His partner, Ms Naidoo, had conduct of the matter. This is not disputed. There is no doubt but that Oldham was involved in the issuing of the proceeding, but it is also clear that the error made by him in regard to the consent of the lead plaintiff is one that was made under pressure and concerning which any advice that he had received from counsel was erroneous.

• (iv) Oldham does not dispute that, in relation to the Keane proceeding, he or his firm should have acted more promptly in removing Mr Keane from the position of lead plaintiff. That he did not do so again emanates from the basic error that he was not aware of the obligations and risks associated with being lead plaintiff and that he thought the position could be adjusted at any time. By this stage Oldham was no longer conducting the Keane proceeding and the Cohen proceeding was heading towards the stage of the pleadings battle. Whilst he has accepted responsibility for it, Oldham's actual conduct of the Keane proceeding was effectively at an end by 23 February 2009.

• (v) Mr Keane seems to have been aware, from a comparatively early stage, that he was named as the lead plaintiff and indicated his desire to be removed because of the media attention he was attracting. It is not suggested that, at any time, he was made aware of the costs risks that he faced, this error on the part of Oldham being perpetuated by his ignorance in this regard and his mistaken belief that matters could at any time be easily re-arranged.

• (vi) Whether or not it be at least in part due to good fortune, no major harm has come to either Dr Cohen or to Mr Keane as a result of Oldham's misconduct. Adverse costs orders were not pursued. It is not suggested that either of them lost any rights which they otherwise may have had as a result of the misconduct. It is not suggested that the striking out of the Cohen proceeding was caused by it and, as I understand it, the Keane proceeding is still on foot.

(d) In relation to comparative penalties, I appreciate the distinction between the magnitude of the proceedings in the present application and those in Hession and Battley. By the same token, the legal practitioners facing charges in those matters seem to have been engaged in a deliberate course of conduct designed to provide work and income but which course of conduct involved issuing proceedings without obtaining appropriate instructions. I also appreciate that each of these matters was heard in excess of ten year's ago. Nevertheless, the fact remains that in each instance the penalty imposed was by way of a fine and costs and there was no interference with practising certificates.

More recently the Legal Practice Tribunal in Queensland dealt with a matter which has some similarities to the present case. The decision in question is Legal Services Commissioner v Scott [2009] LPT 7. That matter involved a solicitor instituting proceedings in a class action which, without going into details, involved Patrick Stevedores and the termination of employment of non-union workers. Scott had no experience in class actions but did consult counsel. Suffice to say that ultimately Scott faced a number of charges, including misusing privileged or confidential information belonging to his clients in the class action, misleading the Federal Court of Australia, misleading the Queensland Law Society and misusing privileged or confidential information. The judgment of Fryberg J at paragraph [57] includes the following:

Mr Scott failed to realise the importance which the court would attach to ensuring the complete accuracy of the document to be sent to members of the class. He acted on the instructions of his client and for the benefit of his client, not for any personal advancement. He was inexperienced in litigation of the type which he undertook and failed to realise that his firm lacked the resources to run such a large case. He acted through counsel, who did not refuse his instructions.

Interestingly, Scott was 38 years of age, married with two young children. Oldham is 36 years of age, married with two young children. Another observation of Fryberg J was that Scott could have sought the advice or assistance of a senior practitioner, but he did not do so as is said at [62]:

He probably had an exaggerated idea of his own abilities and lacked insight into the difficulties involved in running a class action as a result of his inexperience.

Scott had a glowing reference from a former president of the Sunshine Coast District Law Association and Councillor of the Law Society who described him as a lawyer committed to preparation, research and passionate advocacy and who was straightforward, honest, sincere and trustworthy. Scott deposed without challenge that he was ashamed, deeply regretful, and had let down the courts, the law, profession and his family. He had been cooperative in relation to the proceedings against him, and whilst he did not initially admit to of all the charges, when they were substantially scaled down, he promptly did so. As in the present case, there is no suggestion that any dishonesty was involved. The penalty imposed by the Tribunal on Scott was that his local practising certificate was suspended from the date of the orders (27 March 2009) until 15 June 2009 and that during that time he complete a specially designed course of further legal education which was going to commence on 6 April 2009.

I am by no means suggesting that the case of Scott is on 'all fours' with the present application. Nevertheless, there are certain noticeable parallels. It is by no means binding, but is of assistance in considering the question of penalty in relation to Oldham.

(e) Oldham himself was, as I stated, an impressive witness and it is perhaps unfortunate that J Forrest J did not have the opportunity of hearing from him. Of course, in the circumstances, and with disciplinary proceedings likely to be brought, his Honour stated that Oldham should not be cross-examined before him.

(f) The character evidence on behalf of Oldham was equally impressive, and that is so in relation to both the oral and written evidence. I have referred to it earlier. Obviously Oldham is held in very high esteem professionally and socially.

(g) I accept that Oldham is truly remorseful and conscious of the fact that he has let down himself, his family, the legal profession, this Tribunal, the courts and the law generally. I have no doubt that he has been greatly embarrassed about what has occurred. I also accept that he cooperated fully with the preparation of statements of agreed facts and the like. As in Scott, he may not have pleaded guilty at the earliest possible opportunity but did so prior to the hearing. It is to be remembered that initially there were some twelve charges. These were reduced to five, and he pleaded guilty to them.

(h) I have no doubt but that Oldham is a very competent, reliable, well regarded and well informed solicitor in the areas in which he is trained and expert. I am also in no doubt but that he has well and truly learned his lesson in relation to venturing into areas in which he has no expertise without engaging in the appropriate research or obtaining appropriate assistance. I accept that he is now well aware of his ethical obligations in this regard. In those circumstances, I see no need for him to undergo any further education and shall not order it.

(i) Bearing many of the above points in mind, it seems to me that the need for specific deterrence has already been satisfied. The issue of general deterrence has doubtless been in part met by the publicity surrounding the Supreme Court applications, and I would again refer to the observation of J Forrest J set out above.

(j) However, it seems to me that there should be some further penalty by way of a condition requiring Oldham's practice to be conducted for a specified period pursuant to s 4.4.19(g). It was suggested by Mr Margetts that a condition prohibiting Oldham from having the conduct of any class action be imposed for a period of two years. However, as I observed from the bench, given that Oldham gave evidence that, in essence, he never wished to go anywhere near a class action again, such a condition could be seen as being effectively meaningless and carrying little impact as far as general deterrence is concerned. Rather, I shall impose a condition that Oldham confine his area of legal practice to matters involving building law, construction law, property law and owners corporation law for a period of two years from this date.

(k) Whilst the two proceedings were in essence heard as one, and bearing in mind the Order of Senior Member Smithers, some order is still required in relation to the LIV proceeding (J112/2011). As it was agreed that the decision in this matter should abide the decision in the LSC proceeding, this was not discussed. The Order that I shall make is that the decision of the LIV to refuse Oldham's application for renewal of his practising certificate on the basis that he is no longer a fit an proper person be set aside. I shall reserve liberty to apply in relation to the wording of this.

1. Accordingly, the orders which I make are as follows:

1. Charges 1, 4, 7, 10 and 11 are found proven.
2. On each charge Oldham is reprimanded pursuant to s 4.4.19(k) of the Act.
3. On the basis that all charges have been found proven, pursuant to s 4.4.19(g) of the Act, Oldham is to practice only in the areas of building law, construction law, property law and owners corporation law for a period of two years from this date.
4. Oldham pay the costs of the LSC of this proceeding fixed in the sum of $30,000.
5. Liberty to apply is reserved.
6. As indicated, I shall hear submissions as to any stay in relation to the payment of the legal costs and as to any proposed arrangements for the payment of same.

1. The decision of the Law Institute of Victoria Limited to refuse Oldham's application for renewal of a practising certificate on the basis that he is no longer a fit and proper person is set aside.
2. Liberty to apply.