With the agreement of the respondent, the Tribunal finds the following charges proven:

1 Charge 1

Unsatisfactory professional conduct within the meaning of s 296 of the Legal Profession Uniform Law (Vic) (Uniform Law). in that the respondent failed to provide advice to the complainant in a timely manner, this being conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. The particulars are those set out in paragraph 56 of the Statement of Agreed Facts filed 11 November 2021.

2 Charge 2

Unsatisfactory professional conduct within the meaning of section 296 of the Uniform Law in that the respondent failed to ensure that: (a) the complainant properly understood the content of the Retainer; and (b) the Retainer had been explained to the complainant by an appropriate interpreter, being conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. The particulars are those set out in paragraph 57 of the Statement of Agreed Facts filed 11 November 2021.

1 To correct an administrative error, the name of the respondent is amended from 'Peter Antippa t/as Peter Antippa Lawyers Pty Ltd' to 'Peter Antippa'.

2 With the agreement of the respondent:

• The respondent is reprimanded.
• The respondent is to pay a fine of $3,000.00.
• The respondent is to pay the applicant's costs, agreed and fixed in the sum of $5,000.00.

1 Mr Peter Antippa has been in practice as a lawyer in Victoria since August 1994.

2 After negotiations between the Victorian Legal Services Commissioner (the Commissioner) and Mr Antippa, this case is now about some relatively minor aspects of the limited legal assistance Mr Antippa gave to an asylum seeker (the complainant), in relation to an application for judicial review to the Federal Circuit Court made by the complainant. Mr Antippa was not the solicitor on the record.

3 It is the only disciplinary matter in his practising history and arose from a complaint made by the complainant to the Commissioner, dealt with as a costs dispute.

4 The parties provided agreed facts and proposed findings and determinations to the Tribunal for consideration, and decision on the papers if appropriate.

5 The following background is from the agreed facts.

6 The complainant sought Mr Antippa's assistance in July 2017 after a departmental delegate of the Minister for Immigration and Border Protection had refused the complainant's application for a Safe Haven Enterprise Visa (the Minister's decision).

7 Mr Antippa was not involved in the original visa application, which was made by a migration agent. He provided some assistance after the Minister's decision had been made, for the purpose of an application for merits review by the Immigration Assessment Authority (IAA) (the first retainer). Mr Antippa charged $2,750 for the work done, which included Counsel's fee for drawing submissions. No allegations are made about his conduct in respect of the first retainer.

8 After the IAA affirmed the Minister's decision, Mr Antippa agreed to provide some further limited assistance, at a fixed fee of $2,750 including Counsel's fees, in relation to the complainant's proposed challenge to the IAA's decision via judicial review in the Federal Circuit Court (the second retainer).

9 Mr Antippa advised the complainant in conference that there was little prospect of success, but that he would obtain Counsel's advice. He advised that he would not act further unless Counsel advised that there were arguable grounds.

10 Mr Antippa also referred the complainant to a second migration agent, engaged by the complainant the day after the conference. Mr Antippa did not become the solicitor on the record. Counsel ultimately provided advice that there were no reasonable grounds to argue.

11 The complainant appeared for himself at the directions hearing and the show cause hearing in the Federal Circuit Court with the assistance of a Court-appointed interpreter. The Federal Circuit Court dismissed the application. In his subsequent appeal to the Federal Court, the complainant stated that the lawyer who agreed to represent him in the Federal Circuit Court notified him the previous day that he would not be attending the Court, causing disadvantage. The complainant's affidavit exhibited a copy of his complaint to the Commissioner. Mr Antippa was unaware at the time of the appeal, the complainant's contentions, or the complaint to the Commissioner.

12 The two allegations concern aspects of Mr Antippa's conduct in relation to the second retainer: obtaining timely advice from Counsel, and ensuring a client understands the nature and scope of the retainer.

13 The Commissioner originally applied to the Tribunal for orders in respect of four charges, including serious charges of professional misconduct.

14 After negotiations between the parties, agreement was reached that the Commissioner would amend the application for order; reduce the charges to two; and downgrade the conduct alleged to unsatisfactory professional conduct. The parties agreed proposed orders for the Tribunal to make.

15 As the Tribunal observed in Dental Board of Australia v Trijo [2020] VCAT 558 (Trijo) at [34]:[1]

The principles concerning the proper approach for a disciplinary tribunal to take to an Agreed Statement of the kind submitted in this case have been discussed in numerous decisions of courts and tribunals. The authorities recognise that ultimately it is for the Tribunal to be satisfied that the findings are appropriate. No agreement between a regulator and the practitioner can supplant that duty. Nevertheless, any agreement between the parties is a highly relevant matter: Medical Board of Australia v McGrath [2014] VCAT 641 at [19]- [21]. See also, in particular, the decision of the High Court of Australia in Commonwealth of Australia v Director, Fair Work Building Inspectorate [2015] HCA 46.

16 As Commonwealth of Australia v Director, Fair Work Building Inspectorate makes clear at [48] and [49] (footnotes omitted), the Tribunal retains the responsibility of deciding the appropriate sanction:

NW Frozen Foods and Mobil Oil do not suggest that the task of a judge faced with an agreed civil penalty submission is to determine whether the submitted penalty is 'wholly outside' the 'range of penalties reasonably available' or that the court is 'bound to impose [an agreed] penalty irrespective of whether it is considered appropriate'. To the contrary, as was emphasised in Mobil Oil, those cases make plain that the court is not bound by the figure suggested by the parties. The court asks 'whether their proposal can be accepted as fixing an appropriate amount' and for that purpose the court must satisfy itself that the submitted penalty is appropriate.

Nor is it 'pious' to suppose that judges will do their duty, as they have sworn to do, and therefore reject any agreed penalty submission if not satisfied that what is proposed is appropriate. It would be a travesty of justice if that were not the case.

17 In this case, having considered the material before me, including the agreed facts which are set out below, I was satisfied that the outcome proposed was appropriate and a hearing was not required.

18 The characterisation of unsatisfactory professional conduct (as opposed to professional misconduct) properly reflects the relatively minor transgressions evident here. This is not to downplay the importance of a practitioner paying careful attention to the matters giving rise to the allegations:

• ensuring a client understands the nature and scope of the assistance to be given, where English is their second language, and an apparent grasp of basic English may not reflect their capacity to understand what they are being told; and
• ensuring that timely advice is obtained from Counsel briefed to provide advice.

19 To his credit, as part of the agreed outcome, Mr Antippa has acknowledged that his conduct in those respects fell short of the standard. There are numerous mitigating facts evident from a close reading of the agreed facts. He otherwise has no disciplinary history and has agreed to an outcome that addresses any requirements of general deterrence.

20 I will make the orders proposed by the parties. The agreed facts, particulars of the allegations, and proposed findings and orders follow.

1. Mr Antippa was admitted to practice on 1 August 1994. He has held a principal (with trust) practising certificate since 2002 and prior to that held an employee practising certificate since 1995.

2. In 2013, the Sri Lankan complainant, referred to in the government documents as 'EPH-17', came to Australia from India by boat without a visa and sought asylum.

3. In February 2017, with the assistance of a Tamil-speaking migration agent, the complainant applied for a Safe Haven Enterprise Visa. The responsible Minister refused the application.

4. On 8 July 2019 (during the disciplinary investigation) the Tamil-speaking migration agent told [the Commissioner] that the complainant:

(a) always communicated with her in Tamil and she always read English documents to him in Tamil;

(b) had a good understanding of basic English words (but did not tell her that his understanding was limited to such an understanding); and

(c) looked carefully at documents before signing them.

5. In July 2017, the complainant engaged Antippa Lawyers through Mr Antippa, and they conducted the engagement in English.

6. The engagement was to seek a merits review of the Minister's decision not to grant the visa.

7. Mr Antippa told the complainant at the first conference on 20 July 2017 that Antippa Lawyers would make a submission to the Immigration Assessment Authority ('IAA') to review the Minister's visa decision for $2,750, and sent a Retainer (similar to the second Retainer referred to in paragraph 26 below) to the complainant the next day.

8. At the conference on 20 July 2017, Mr Antippa made a file note that the [complainant] had 'broken English'.

9. The complainant paid the $2,750 by three instalments between 21 and 24 July 2017.

10. On 24 July 2017, the complainant sent the Applicant an email containing correspondence from the IAA with the subject line of the email titled 'Please read this page I can't understand'.

11. On 1 August 2017, the complainant signed the Retainer and e-mailed a scan of the signed document to Antippa Lawyers after Mr Antippa emailed him a further copy and asked him to sign and return by email.

12. Antippa Lawyers briefed counsel to advise and draw the submissions and filed and served the submissions drawn by counsel.

13. On 27 July 2017, Mr Antippa sent an email to counsel briefed which said: 'should you require a conference, I will have to demand that the client brings someone with him who can assist him in English'.

14. Antippa Lawyers charged the agreed fee which was inclusive of counsel's fees.

15. The IAA confirmed the Minister's decision. Mr Antippa emailed the review decision to the complainant at 9.01 p.m. on 11 October 2017.

16. This first engagement was not the subject of any complaint to the Applicant by the complainant and none of Mr Antippa's conduct during the first engagement is the subject of allegations against him.

17. On 12 October 2017, the complainant engaged Antippa Lawyers again. He did so through Mr Antippa at a conference at which they spoke in English, which was arranged in response to the complainant's email to Mr Antippa at 11.40 p.m. on 11 October 2017 which said 'Sir, let me meet you tomorrow.'

18. The engagement was to challenge the IAA's decision in the courts. In this case, the only available mode of challenge was judicial review in the Federal Circuit Court under the Migration Act 1958.

19. Characteristics of the application for judicial review under the Migration Act 1958 to the Federal Circuit Court of Australia included that:

(a) the complainant needed to demonstrate, on the evidence before the IAA, jurisdictional error, so that all but the most extraordinary errors in fact finding would be insufficient;

(b) if the complainant ticked a box on the Application for judicial review, indicating a wish for an interpreter, the complainant would have the benefit of a court-appointed interpreter at court hearings (but not otherwise), at no cost to him.

20. The complainant took up the option of a free court-appointed interpreter at the two hearings in the matter.

21. On 12 October 2017, Mr Antippa conferred with the complainant without an interpreter. The complainant asked about an interpreter for the next conference and Mr Antippa invited the complainant to bring an English and Tamil speaking friend for that purpose if and when he wished to have language assistance, as most of Mr Antippa's clients preferred to do, as an alternative to a commercial interpreter.

22. Mr Antippa's file note in respect of that conference records:

(a) 'Tamil only. English poor';

(b) the complainant asked about an interpreter for the next conference;

(c) Mr Antippa invited the complainant to bring an English and Tamil speaking friend for that purpose if and when he wished to have language assistance.

23. At the 12 October 2017 conference, Mr Antippa said to the complainant in simple English the following things, and believed that the complainant understood him:

(a) that he would not assist him, except to obtain advice of counsel, as to the prospects of a judicial review, unless and until such time as counsel advised that there were arguable grounds for such a judicial review;

(b) that there was little chance of success at the Federal Circuit Court;

(c) that if the complainant was so minded, he could lodge an application for judicial review to the Federal Circuit Court himself on the basis that the grounds relied on would be provided after provision by the Minister of a court book;

(d) that the total cost of procuring that advice, including counsel's fee, charged by Mr Antippa would be $2,750 which was to be paid before the advice would be provided.

24. At that conference, which lasted about an hour:

(a) the complainant said that the costs were acceptable but that he could only pay them in instalments as he raised the funds;

(b) Mr Antippa referred the complainant to a second migration agent for guidance, until such time as the complainant could provide the court book to Mr Antippa for evaluation and to provide the foundation of an advice to counsel.

25. Subsequently, Mr Antippa reiterated the matters referred to in para 23(a) above several times when the complainant sought to dissuade him from that position.

26. On 13 October 2017, Mr Antippa emailed a new retainer (the Second Retainer) under cover of a letter which said:

2. $2750.00 to determine the possible success of the Appeal;

3. 'Court book' from the Government's Lawyers, as ordered by the Court;

4. Your written comments about every paragraph of the decision of the IAA.'

(a) paid the $2,750 by electronic banking by instalments of $500 in November, $1,000 in February 2018, $1,000 in July 2018 and $250 in August 2018;

(b) engaged the second migration agent and communicated with him in English, including, on one occasion, by telephone through an English and Tamil speaking friend of the complainant;

(c) after meeting the second migration agent, personally filed appeal papers, including an affidavit at the registry of the Federal Circuit Court, which he swore in English in front of an officer of that Court; and

(d) did not provide to Mr Antippa a copy of the documents lodged with the Court, which Mr Antippa did not at that time receive from anyone else.

28. The Applicant and Mr Antippa do not agree as to the complainant's understanding of the scope of the Second Retainer. However, the Applicant does not say against Mr Antippa for the purposes of this proceeding that:

(a) the complainant believed that Antippa Lawyers had agreed to, or was likely to agree to, appear for him at a hearing in the case unless Mr Antippa was first convinced by advice of counsel that there was an arguable foundation to pursue a judicial review; or

(b) the complainant believed at any time that Mr Antippa had been convinced that there was such arguable foundation.

29. The Applicant determined, having investigated the complainant's complaint as a consumer matter which was a costs dispute, that the fee of $2,750 for work after the first conference was substantially less than the work done would cost on Federal Circuit Court scale.

30. On 21 June 2018, the complainant signed the Second Retainer and returned a scan to Mr Antippa by email after Mr Antippa sent the complainant a reminder email on 18 June 2018.

31. The day before the second migration agent's first conference with the complainant, Mr Antippa sent an email to the agent dated 13 October 2017, in response to a query about the address for service:

'When the Court book is prepared by the government lawyers, sent to the client, then given to us and if the legal opinion is favourable, only then I will enter the case and become the Solicitor for the record. At this stage, the client will be running the show in his own name and all documents will be sent to the client either by post or by mail.'

32. On 27 June 2018, the complainant appeared for himself at a directions hearing with the benefit of a court-appointed Tamil interpreter. The Court:

(a) fixed the case for a show cause hearing on 19 September 2018, the nature of which is set out in the Federal Circuit Court's decision at paragraph 1;

(b) fixed a date for the Minister's provision of a court book;

(c) fixed a date by which any amended appeal documents and any supplementary court book were to be filed by the complainant; and

(d) set dates for mandatory written submissions by each party.

The effect of the orders was that the complainant's submissions were due on 28 August 2018, being 28 days prior to 19 September 2018.

33. Since Antippa Lawyers were not solicitors on the record, and the Minister's solicitors were unaware of their engagement by the complainant and never communicated with Antippa Lawyers, neither the Court nor the Minister's solicitors provided a copy of the orders to Mr Antippa, and neither did the complainant, and Mr Antippa remained ignorant of them until long after the second engagement came to an end.

34. In an affidavit sworn by the complainant on 30 January 2019, which he filed in the Federal Court appeal, he deposed as follows:

'5. The solicitor in question advised me to attend the first Directions hearing and then come back to him with the directions orders and the Court Book which I would receive.'

35. On 13 July 2018, Mr Antippa spoke on the telephone with the complainant who reported on the directions hearing, advised the hearing date and that the Court Book had been due to be received by the complainant on 11 July 2018. However, the complainant said nothing about any other orders.

36. On 18 July 2018, the complainant delivered to Mr Antippa:

(a) the Court Book, which included the court documents filed by the complainant but did not include a copy of the directions made on 27 June 2018; and

(b) a letter from the Minister's solicitors which stated that the proceeding had been listed for a show cause hearing before Judge Wilson on 19 September 2018 at 11.30 a.m.

37. Later that day, Mr Antippa drew a brief to counsel and had the following telephone conversations:

(a) With counsel who agreed to take a brief to advise prior to a hearing on 19 September 2018. Counsel said that he was busy for a couple of weeks but could look at a brief after that, and requested that some current 'country information' be obtained in the meantime;

(b) With the complainant and a Tamil-speaking expert on the human rights situation of Tamils in Sri Lanka, and charged her and the complainant with sourcing additional country information.

38. On 22 July 2018, the complainant emailed Mr Antippa:

'Hi, I have been tecevie [sic.] a new invoice about my fee recently 20.07.2018. Am really confused about it because it didn't show my on spot payment. And I received a vocal confirmation from Mr.antippa that I need to pay my balance $250 only so can you send me a new updated invoice. Thanks.'

39. On 26 July 2018, a staff member at Antippa Lawyers spoke to the complainant about the amount owed by him, in English, to satisfy the fixed fee costs obligation.

40. The complainant provided Mr Antippa with country information in various emails from 26 to 30 July 2018.

41. On 30 July 2018, Mr Antippa had the brief delivered to counsel's clerk.

'His English is quite poor; Tamil is his primary language'

'A show cause hearing has been scheduled for 11:30 a.m. on 19 September 2018 before Judge Wilson. Your advice is required prior to this date so that a decision can be made as to whether to appear.'

42. On 4 and 10 September 2018 the Minister filed and served on the complainant submissions and a list of authorities, but Mr Antippa did not learn of those documents from the complainant or from any other person until after his second engagement came to an end, and nor, accordingly, did counsel.

43. Between 30 July and 17 September 2018, Mr Antippa did not have any direct conversation with, or seek any written update from counsel about when counsel would deliver his advice ahead of the show cause hearing on 19 September 2018.

44. On 17 September 2018, counsel contacted Mr Antippa by telephone. During that conversation, counsel said that he would look at the brief. Mr Antippa did not withdraw the brief at this time.

45. On the afternoon of 18 September 2018, being the eve of the show cause hearing, counsel provided Mr Antippa with oral advice by telephone. Counsel advised:

(a) that there were no arguable grounds of appeal;

(b) that he would not render a fee in the circumstances, unless he was briefed to appear the next day;

(c) he would charge $1,850 for the appearance and the work he had already done if briefed.

46. After attempting unsuccessfully to speak with the complainant by telephone, Mr Antippa:

'I tried to ring today. There is a preliminary hearing of this matter on: [details of hearing then set out]. I asked a senior Barrister to look at this whole case. I wanted to try to find a way of being able to help you. I tried everything that I could to find a way for you to succeed. The Barrister believes that you will not win tomorrow. I do not want you to pay any more money for legal fees as a result. This is why I suggest that you may go to the hearing on your own, if you want to. I will not be going to the hearing because I do not want to incur you any more legal costs. Clayton Utz lawyers will ask you to pay for the government's lawyers. You have a right to negotiate with Clayton Utz as to the amount of its legal fees.'

'I attempted to contact [the complainant] about the hearing tomorrow. I was not able to contact him.

47. Subsequently, the complainant telephoned Mr Antippa, who explained counsel's advice, and did not advise the complainant that counsel was available to appear at the hearing at 11:30 a.m. the following day.

48. The complainant once again appeared for himself at the hearing at 11.30 a.m. on 19 September 2018 at which final orders were made dismissing the appeal on the basis that the complainant had failed to comply with the submissions direction, had not taken up the opportunity to amend the holding appeal he had originally lodged or lodge a supplementary court book, and had otherwise failed to demonstrate arguable jurisdictional error in the IAA's decision.

49. Subsequently, the complainant engaged a Tamil speaker who was then a barrister at the Gold Coast, and with his assistance, sought and was granted leave to appeal to the Federal Court on the sole ground that the complainant, who was 'suffering from serious mental health problems':

'has little or limited understanding of court proceedings in Australia. It was difficult for [the complainant] to identify the next course of action. The lawyer, who agreed to represent [the complainant] in Federal Circuit Court; notified [the complainant] that he would not be attending the court, just the previous day. [The complainant] has been disadvantaged such that he could not engage another lawyer to represent him in the court.' [see para. 4 of Kenny J's judgment.]

50. There were the following characteristics of the appeal:

(a) at a time when Mr Antippa was ignorant of the complainant's complaint to [the Commissioner], the complainant exhibited a copy of it to his affidavit in support of the application to the Federal Court for judicial review;

(b) the complainant was not cross-examined;

(c) no notice of the appeal or any of the complainant's contentions about him was given to Mr Antippa and he remained ignorant of them.

51. The appeal succeeded, and the matter was remitted for re-hearing by the Federal Circuit Court.

52. No hearing of the remitter has been fixed, and the complainant remains in Australia with full work rights.

56. As to the first allegation, by engaging in conduct described at paragraphs 43 and 44 above, Mr Antippa did not take adequate steps from a reasonable time after 30 July 2018 to procure timely advice from counsel in respect of the show cause hearing listed on 19 September 2018, including withdrawing the brief from counsel.

(a) The Second Retainer was inapt to document the agreement in relation to costs orally arrived at between Mr Antippa and the complainant.

(b) At all relevant times:

(i) Mr Antippa could not speak Tamil;

(ii) The complainant could only speak Tamil fluently, and his English was sufficiently imperfect that he would have difficulty understanding the Second Retainer fully by reading it without the assistance of a better English speaker.

(c) Mr Antippa ought to have been aware that the complainant might have difficulty understanding the Second Retainer given:

(i) The Second Retainer was not written in simple English;

(ii) He recorded 'broken Eng' in his file note of his first conference with the complainant on 20 July 2017;

(iii) He advised counsel in the brief in the first engagement that the complainant 'elicits broken English ... Should you require a conference, I will have to demand that the client brings someone with him who can assist him in English';

(iv) The complainant emailed him a communication from the IAA on 24 July 2017 by an email which said 'Please read this page I can't understand';

(v) He recorded 'Tamil only. English poor' in his file note of the 12 October 2017 conference;

(vi) He advised counsel in the brief in the second engagement that 'His English is quite poor; Tamil is his primary language'.

(d) In the circumstances described at subparagraphs (a) to (c) above, Mr Antippa did not take adequate steps to have the full content of the Second Retainer explained to the complainant in that he did not ensure the document had been explained to the complainant in his first language, Tamil, or seek confirmation from the complainant that he understood the Second Retainer;

(e) Accordingly, Antippa Lawyers breached its obligation under s. 174(3) of the Uniform Law to take all reasonable steps to satisfy itself that the client had understood and given consent to the costs proposed by the Second Retainer (as opposed to the oral agreement in relation to the costs of obtaining counsel's advice), and Mr Antippa was a person involved in that breach, in the sense described in s. 178(1)(d).

a) Mr Antippa's conduct as described in paragraph 56 constituted unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law, in that the conduct fell short of the standard of competence and diligence that a member of the public is entitled is entitled to expect of a reasonably competent lawyer.

b) Mr Antippa's conduct as described in paragraph 57 above constituted unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law, in that the conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.

59. Mr Antippa has no disciplinary history, and the parties jointly submit that the appropriate final orders in this matter are that Mr Antippa:

(a) be reprimanded;

(b) pay a fine of $3,000; and

(c) pay [the Commissioner's] costs fixed in the sum of $5,000.

[1] See also Victorian Legal Services Commissioner v Efron [2019] VCAT 1798 at [18]; and Victorian Legal Services Commissioner v Hyatt [2018] VCAT 1498 at [25].

[2] History of the Commissioner's application omitted.