1. In this decision, I deal first with preliminary and evidentiary matters raised by Mr Beling, then describe the circumstances in which the alleged conduct occurred. I consider the expert evidence and briefly refer to the main basis for the case that was sought to be brought by the Hannas against the ANZ. I then analyse the evidence relating to each of the nine key allegations in turn. Finally, I make findings on each of the four charges in the light of the applicable law and my conclusions about the nine key allegations.

Matters ruled on during the course of the hearing

1. On two occasions during the course of the hearing, Mr Beling pursued submissions to the effect that there was an obstacle to the use in the hearing of documents over which Mr Hanna, in particular, had a claim of client legal privilege. I ruled that I was satisfied both Mr Hanna and Mrs Hanna had waived their privilege for the purposes of this disciplinary hearing. As noted, Mrs Hanna lodged a complaint with the VLSC on 21 February 2013. Applications by Mr Beling for injunctions, a strikeout or permanent stay, and the exclusion of evidence were also dealt with over the first two hearing days.

1. Mr Beling submitted that charges 2 and 3 are 'almost wholly duplicative'. There is no need to deal with this submission given that I have dismissed charge 2.

1. Mr Beling submitted in a number of instances that matters were not put to him, or to Mr Hicks as they should have been. I do not accept this submission. The VLSC case largely relied on documentation from Mr Beling's file. Over the course of the investigation and the VCAT hearing process, he has had ample opportunity to become aware of the nature and detail of the allegations made against him. These processes have continued for years, and there has been much exchange of information back and forth between him and the VLSC.

1. Mr Beling invoked Jones v Dunkel[7] in relation to various aspects of the evidence_._ He submitted that the Tribunal should draw inferences adverse to the VLSC's position for its failure to call 14 persons to give evidence, namely, Mrs Hanna,[8] the FMC Registrar, the psychologist Mr Stockton, the medical practitioners who treated Mr and Mrs Hanna in the years prior to 2012, two solicitors from HWL Ebsworth (the ANZ's solicitors), two ANZ employees, and six employees of the VLSC, including the Commissioner himself.
2. In my view, the only aspect of this submission which raises a serious issue for consideration is that relating to Mrs Hanna. The VLSC said:

The decision not to call Mr and Mrs Hanna to give evidence about the oral advice Mr Beling provided was made having regard to all the circumstances, including their medical problems at the time (ie mental capacity and memory difficulties), consideration of their various disabilities and the stress of giving evidence about an event so long after the event when they took no notes of the oral advice at the time.[9]

1. In relation to Mrs Hanna, Mr Beling gave evidence that he provided oral advice concerning the Hannas' prospects of success, which supplemented the (very limited) written advice disclosed by the file. The VLSC accepted that having decided not to call Mrs Hanna, it was not in a position to contest Mr Beling's evidence that such oral advice was given. What the VLSC did do, however, was to attack the content of the evidence about that advice, by asking Mr Beling about it in cross-examination. The VLSC contended that Mr Beling's responses indicated that such oral advice was deficient. That contention is borne out by my findings.
2. In relation to the other witnesses, the VLSC contended that it was not necessary for them to give oral or written evidence: the circumstances of their involvement were sufficiently apparent from the documentation, and that it was not apparent they could give evidence on any contested issues which went directly to the allegations themselves. Further, Mr Beling was able to call witnesses if he chose, or to make any submission to the Tribunal that the VLSC was under an obligation to call certain witnesses, or to raise this in his no-case submission.
3. The VLSC accepted it bears the onus of proving the allegations against Mr Beling, and if its proofs are deficient, its case will fail. Its position was, in effect, that Mr Beling's inadequate handling of the Hannas' matter was largely apparent from the documentation, nearly all of which came from Mr Beling. It also contends that its case was then bolstered by statements made by Mr Beling in cross-examination.
4. Of course, VCAT is not bound by the rules of evidence. However, principles such as that which underlie the rule in Jones v Dunkel are generally applied by the Tribunal where appropriate. Sections 97 and 98(1) of the Victorian Civil and Administrative Tribunal Act 1998 provide as follows:
   1. Tribunal must act fairly

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

1. In my view, Mr Beling did not demonstrate that it was appropriate for the Tribunal to draw a Jones v Dunkel adverse inference in relation to any of the issues in this case.[10] In relation to Mrs Hanna, sensible reasons were given for not calling her. More significantly, the VLSC agreed that Mr Beling's evidence that oral advice was given to the Hannas about their prospects of success must be accepted. So there is no need to draw a Jones v Dunkel adverse inference about that. The same applies to the oral advice Mr Beling said he gave to the Hannas reminding them about their potential costs liability to the ANZ, which he had quantified as $0 - $100,000 in his initial costs disclosure.
2. In relation to each of the other matters where Mr Beling said that a Jones v Dunkel adverse inference should be drawn, I do not accept that submission. I do not agree that the other persons aside from Mrs Hanna who Mr Beling suggested should have been called to give evidence would ordinarily have been expected to be called, or needed to be called, or had evidence to give in relation to contested issues which are relevant to the matters for determination by the Tribunal in this case.

Mr Beling's challenge to the authenticity of certain documents and allegations of document manipulation, bad faith and professional misconduct by the VLSC

1. This section deals with four contentions made by Mr Beling. First, his contention disputing the authenticity of a number of documents provided to the Tribunal by the VLSC. Second, his suggestion that documents had been deliberately manipulated to convey a bad impression about his file. Third, that some documents had been removed from the version of his file produced to the Tribunal. And fourth, he alleged bad faith and professional misconduct by officers of the VLSC.
2. The VLSC's investigating officer, Ms Alexandra Freedman, made a witness statement which she adopted as true and correct (subject to minor corrections) under oath in the witness box. This is exhibited as AF-7 a copy of Mr Beling's file which the VLSC had received from him in response to its request. It is also exhibited as AF-2 copies of email exchanges between the VLSC and Mr Beling, plus other documents provided to the VLSC during the course of its investigation.
3. The file produced to the Tribunal was not in chronological order, but bore Mr Beling's handwritten numbers from 1 - 875. Mr Beling provided other documents as well, including invoices, bank statements and correspondence with the VLSC, which were given other number sequences, again by Mr Beling in his own handwriting.
4. At paragraph 17 of his witness statement of 13 December 2016, Mr Beling said:

Though I may be wrong or mistaken, I dispute the authenticity of the below documents.

1. Mr Beling suggested the question of the authenticity of the documents he identified bore on his professional conduct. His witness statement listed 18 documents (or categories of documents) which he said he disputed. During the hearing, he withdrew his claim in relation to nine of these, leaving the other nine still disputed.
2. Five of these nine documents bore handwritten page numbers. Mr Beling accepted that he had gone about numbering in his own handwriting the documents comprising his file, which he provided to the LSC. Yet he suggested that somehow these five documents, which appeared in sequence amongst others comprising his file, and which were numbered in the same style and handwriting as all the others, were not authentic.
3. In relation to the other four objections, Mr Beling appeared to suggest first, that alleged attachments to an email from Mrs Hanna to himself dated 1 September 2012 were not authentic. However, his witness statement said he could not locate a copy of this email. So it is difficult to respond to this submission.
4. He also appeared to contend that two letters from the Hannas to the ANZ dated 10 and 13 August 2012 respectively, and perhaps also a 14 May 2014 email from Mr Beling to Ms Maria Smith of the VLSC apparently enclosing those two letters, were not authentic, despite these documents being exhibited to Ms Freeman's affidavit.
5. Next, he contended that a receipt dated 12 September 2013 issued by the VLSC to Mr Beling following provision of those materials by him to the VLSC was not authentic.
6. Finally, he appeared to contend that an alleged original bundle of legal research conducted by him was not authentic.
7. It is difficult to understand exactly what points of relevance to his defence Mr Beling was seeking to make in relation to these last four documents (or categories of documents) referred to at paragraphs 17 (o) - (s) of his witness statement.
8. No compelling or plausible explanation was provided by Mr Beling as to how the nine documents which he said were not genuine, came to be included amongst the material provided by the VLSC to the Tribunal, if not from his file, or from communications between him and the VLSC during the course of the investigation. Rather, Mr Beling challenged the authenticity of these 18 documents (later reduced to nine) because, in effect, their content did not seem right to him, in the light of his understanding of the surrounding circumstances. This was detailed at some length in relation to the 18 documents - in his witness statement.
9. But there was no clear link drawn between the suggestion that documents were not authentic, and any explanation or narrative which assisted his response to the allegations put against him. In most cases, the submission appeared to raise queries about matters which were not the subject of detailed or direct evidence before the Tribunal, nor was it apparent they needed to be. In effect, they raise further questions about the circumstances of the Hannas' dealings, for which there could be any number of possible explanations. Investigating each of these loose ends would be time consuming, and may well be fruitless in the end, at least in part because of the difficulty of understanding the meaning of things Mrs Hanna wrote. In these circumstances Mr Beling's challenges to the authenticity of the VLSC's documents were no more than a distraction.
10. Mr Beling did not raise these issues in cross-examination of Ms Freeman.
11. As noted, Mr Beling prefaced his contentions about authenticity by stating that he may be wrong or mistaken. During the hearing Mr Beling said he was raising these as apparent concerns. That was the highest he was putting it. He was not alleging dishonesty by the VLSC.
12. Yet at other times, Mr Beling seemed to be raising serious allegations against the VLSC, of causing documents which were not authentic to be put before the Tribunal.
13. In the absence of compelling evidence to the contrary, I assume that things are as they appear. There is no evidence that the VLSC fabricated documents, or forged Mr Beling's handwritten page numbering on documents provided to the Tribunal - as he suggested towards the end of his lengthy footnote No 91 on page 23 of his Closing Submissions.
14. Also, Mr Beling alleged that the VLSC had deliberately manipulated his files, in order to convey a negative impression about them. He pointed to the fact that some of the documents exhibited by Ms Freeman do not contain his handwritten numbering. These are pages 466 -555 of the file (VLSC's numbering). They comprise the medical records of Mr and Mrs Hanna. They include printouts of electronic notes of health practitioners, reports by specialists, and test results concerning a wide range of medical matters. Mr Beling's handwritten numbering sequence is interrupted by the insertion of these medical documents. Hence it appears these medical documents were inserted in that part of the file after Mr Beling did his handwritten numbering of the file pages.
15. In relation to these medical documents, and other pages, comprising 'up to 130 pages' altogether, Mr Beling submitted:

The Commissioner cannot authenticate the file he has tendered to the Tribunal and appears, regrettably, to have misled Mr Howell by apparently removing about 130 documents of high forensic importance from the file the respondent used in the FMC before providing Mr Howell with a purported copy of the file in exhibit AF-7. Mr Howell's opinions based on the file, through no fault of his own, are therefore tainted and should be given little or no weight.[11]

It is submitted that any legal practitioner's file may be manipulated to convey the appearance of disorganised and inadequate record-keeping and insufficient file notes if up to 130 pages of the key documents are removed from the file.[12]

1. I reject these submissions by Mr Beling. There is no evidence to support the serious allegation that the VLSC deliberately manipulated Mr Beling's file to 'convey the appearance of disorganised and inadequate record-keeping'. The fact that the file was sent to the VLSC, then returned to Mr Beling at his request in July 2013, before being sent back to the Commissioner again in September 2013, may be part of the explanation for the interruption to Mr Beling's handwritten numbering by the insertion of the medical documents.[13]
2. I am not satisfied it has been demonstrated that any of the documents which were not provided to Mr Howell, were of significance in relation to the issues in this case. Further, as stated below, the state of tidiness of the file is not a significant issue. In any event, it was not shown how the non-provision of these documents affected Mr Howell's evidence in any significant way. And finally, even if that were the case, my decision is of course independent of Mr Howell's opinion.
3. Mr Beling also suggested at paragraph 16 of his witness statement of 13 December 2016 that three other documents may have been inadvertently or accidentally omitted or removed from the file he originally produced to the LSC. Whether or not that occurred is not significant for the purposes of dealing with this case. In a number of instances, Mr Beling appears to assume that documents which he said were missing from copies made of his file would be disregarded by me. That is not the case. The Tribunal is not bound by the rules of evidence. I have had regard to the documents placed before the Tribunal, and accorded them the significance I believe is appropriate in each case. So, in relation to the three documents mentioned at paragraph 16 of his witness statement, I have seen at least the first two of these, since they are exhibited to his witness statement. Indeed, the first of these documents, namely the two letters from Mr John Mahoney to the ANZ of 18 July 2012 (referred to below) were attached to Mr Hicks' witness statement.
4. Finally, I confirm I find nothing raised by Mr Beling in this submission gives rise to any doubts about the integrity of the VLSC's conduct in this matter. Nor do I accept the other allegations or insinuations made by Mr Beling against the VLSC or its counsel in the conduct of this matter.
5. For example, in reply to Mr Beling's third response in the course of the investigation, the LSC wrote to him putting that he acted as a 'mere mouthpiece'[14] for his clients by replicating in his draft Statement of Claim, claims against the ANZ under certain statutory provisions. One of these was s '88' of the National Credit Code. Mr Beling denied he had done so, and alleged that in putting this matter to him the Commissioner, and four named LSC officers had not acted in good faith or acted in bad faith, and that this constituted professional misconduct by them.
6. In circumstances where the LSC was engaging in a dialogue with Mr Beling as part of its investigation, and inviting him to comment on certain matters, no basis has been demonstrated on which it would be appropriate for me, in considering his defence to these disciplinary charges, to entertain the suggestion LSC officers have acted in bad faith and are guilty of professional misconduct. Mr Beling made this allegation in his closing submissions at paragraph 107. He footnoted paragraph 75 - 77 of the decision of Derham AsJ in Beling v Legal Services Commissioner[15]. In those paragraphs, Derham AsJ rejected Mr Beling's contention that the conduct of the LSC's officers was an abuse of process.
7. For similar reasons, I do not accept the other like allegations made by Mr Beling against the LSC officers at paragraphs 106 - 117 of his final submissions.

1. Mr Beling is a sole practitioner who I understand practises from his home. He was admitted to practice in 2002. Since that year, he has held a practising certificate entitling him to practise as a principal and to receive trust money. He has been employed on a casual basis at a small firm of solicitors for a year from March 2002, and on a part-time basis at another firm for two years from February 2007. There, he said he got a basic grounding in civil, commercial and family law type matters. From 2003 - 2007 he completed a PhD through the Department of History at the University of Melbourne.
2. Prior to acting for the Hannas, his predominant recent experience had been in conducting intervention orders and summary criminal matters in the Magistrates' Court. He had not acted for persons in the Hannas' circumstances. Since 2010, in parallel with his legal practice, Mr Beling has also conducted a business creating fictional characters for licensing to third parties in the entertainment industry. I understand this has involved some intellectual property work.

1. Mr and Mrs Hanna have experienced a deal of adversity in their lives. Both have suffered from a number of medical conditions. Mr Hanna is partially deaf and it is said he cannot read or write. He ran a scrap metal business. Mr Hanna had a house in Hazeldene (more commonly referred to as being at Flowerdale). It was burnt down (or at least, very severely damaged) in the Black Saturday bushfires. It was not fully insured. Then, in January 2011, the Hannas were hit by floods.
2. Mr Hanna also owned a property at Coolaroo. Both properties were mortgaged to the ANZ Bank. A mortgage had been executed in 2002. Mr Hanna was the sole proprietor of both properties. Although he had received an insurance payment, and some government assistance, he was behind in his mortgage payments. There were two loan accounts and a personal account. One was a Home Loan, and the other was a Residential Investment Loan, which was stated not to be regulated by the Consumer Credit Code.
3. The evidence of Mr Beling was that while the properties were in Mr Hanna's name, it was Mrs Hanna who was the prime mover and decision-maker in relation to the couple's financial affairs. and the person who gave instructions to Mr Beling. That is consistent with the evidence and documents. Mr Hanna had given Mrs Hanna authority to communicate with the ANZ on his behalf. Correspondence to Mr Hanna was responded to by Mrs Hanna.
4. In terms of actual steps taken by Mr Beling in the course of the litigation, no distinction was made between the interests of Mr and Mrs Hanna respectively. It was apparent that in commencing the claim against the ANZ, and then in instructing Mr Beling, Mrs Hanna was acting on behalf of both herself and Mr Hanna.
5. Mr Beling did indicate, however, that he developed some concerns about the extent to which Mrs Hanna was pursuing an agenda which was contrary to Mr Hanna's financial interests (and therefore, also, her own, since it appeared that like many couples, their financial affairs were interlinked). This is dealt with in the analysis of allegation 6, below.
6. Mr Beling said Mrs Hanna, and to a lesser extent Mr Hanna, was intent on conducting a public campaign against the banks, and using this case, in which she hoped to obtain a large financial settlement, as a vehicle for that. She was writing a book exposing the predatory practices of banks, entitled 'Banks and Money'.

CIRCUMSTANCES IN WHICH THE ALLEGED CONDUCT OCCURRED

1. The primary concern of the Hannas, which formed the main basis for most, if not all of the claims against the ANZ, was the contention that on 27 April 2011, two ANZ employees falsely stated to Mrs Hanna in the course of a single telephone conversation, that a default notice had been issued on 21 April 2011, and that they had by 29 April 2011 to pay the outstanding arrears. In actual fact, no default notice had been issued. The ANZ had not commenced any formal default process. As noted below, the ANZ subsequently acknowledged that an incorrect statement had indeed been made by its employee on 27 April 2011.
2. This incorrect statement is the source of most, if not all, of the numerous allegations raised by the Hannas, and taken up by Mr Beling on their behalf, during the course of his retainer. The Hannas' grievances appear to relate to the state of uncertainty this left them in, which they say caused them to take steps to their financial disadvantage - presumably up until the matter was clarified by the ANZ. They alleged the ANZ had behaved fraudulently in this regard.
3. On 28 April 2011, the Hannas lodged a dispute with the Financial Ombudsman Service (FOS). It was common ground that pursuant to the applicable legislative provision, this protected them from having court proceedings commenced against them by the ANZ.
4. Correspondence ensued between the Hannas, the ANZ bank and the FOS. This mostly consisted of updates from the ANZ as to amounts due on Mr Hanna's three accounts, discussions about various arrangements and proposals for payment of arrears and the provision of information to the FOS.
5. There is a note by Mrs Hanna stating that on 15 August 2011, 'ANZ admitted verbally the letter dated 21st April 2011 didn't exist'.[16]
6. On 2 November 2011 the ANZ wrote to the Hannas indicating that no default notice had in fact been sent in April 2011. The letter was as follows:

I refer to your letter to ANZ 1 November 2011 and email of 17 October 2011.

I have reviewed your letter and discussed this from [sic] the relevant ANZ business units.

I understand that you are seeking a copy of ANZ's letter dated 21 April 2011.

ANZ confirms that a letter was recommended, however following further discussions; no letter was issued on this date. This did not result in a loss to you.

I apologise that you were provided with incorrect information. The ANZ representative who advised you such a letter was issued did so in error; ANZ's internal system notes were read out incorrectly to you.

I understand you have raised your concern with ASIC (reference 83166120) and have also indicated raising your concern with Privacy Commission [sic]. These forums are in addition to the Financial Ombudsman Service. Please note that ANZ will co-operate with all the forums in which this concern has been raised to reach a resolution.

If you have any queries please contact me on [telephone number]. I am available Monday to Friday from 9.30am to 5.00pm.

1. In late 2011 and early 2012, Mrs Hanna had made complaints under the Privacy Act 1988 (Cth), to ASIC, and to the Commonwealth Attorney-General, and purported to lodge an FOI request with the ANZ. It is not apparent any of these yielded a positive outcome for the Hannas.
2. The Hannas and the ANZ reached a negotiated resolution of this dispute through the agency of the FOS on 9 March 2012. But this fell through after the Hannas determined several weeks later that they had not fully understood what the implications of the compromise brokered by the FOS were, and that they were not happy to agree to those terms[17].
3. The Hannas remained much aggrieved by the fact that their financial position was, they said, thrown into turmoil and uncertainty by the alleged statements by officers of the bank on 27 April 2011 that the default process was underway.
4. On or about 21 June 2012, Mrs Hanna drafted and issued a proceeding in the FMC in her and Mr Hanna's names, against the ANZ. Two subsequent versions of the claim were produced by Mrs Hanna. The second was dated 24 July 2012. The third was dated 7 August 2012. None of these claims were in proper form. Each was patently deficient in terms of explaining the facts relied on, and how these were said to comprise the breaches alleged, or the losses alleged to have been caused. However, it is apparent that Mrs Hanna had conducted reasonably extensive research in drafting them.
5. A NSW solicitor, Mr John Mahoney, acted for the Hannas briefly in mid-2012. Mr Mahoney was called by Mr Beling and gave evidence by telephone. He said the clients came to him because of his reputation in acting for customers against banks. He never met the Hannas in person. All instructions and communications with them were by email. Mr Mahoney wrote two letters to the ANZ dated 18 July 2012 on behalf of the Hannas, one without prejudice, and the other open. He said the letters were prepared on the basis of documentation received from the Hannas, (which was not extensive) and 'instructions from them as to their version of the relevant events'.
6. The letters sent to the ANZ by Mr Mahoney on 18 July contended the Hannas had a valid claim against the ANZ. This arose from the misrepresentation by it on 27 April 2011, to the effect that recovery proceedings would be commenced against them if all arrears were not paid by 29 April 2011. The 'without prejudice' letter offered to settle the proceedings on the basis of the Hannas being released from all current arrears and any current credit default notifications being withdrawn. On that basis, the Hannas would discontinue the proceedings and agree to non-disparagement of the ANZ. There was no allegation of fraud, dishonesty or corruption. Mr Mahoney said his letters fell far short of that. The offer was open until 27 July 2012. No settlement resulted from that offer.
7. In the third version of this claim drafted by Mrs Hanna, dated 7 August 2012, the following breaches of the National Consumer Credit Protection Act 2009 and the National Credit Code were alleged:
   • a. Section 225 - omitting to provide information to an ASIC investigation. This alleged in effect that the Bank's letter of 2 November 2011 was sent to ASIC, and that it 'omitted to include internal notes falsified'. This allegation apparently related in particular to the non-inclusion in the Bank's telephone log of 27 April 2011, of any reference to a default letter having been sent to Mr Hanna.
   • b. Section 227 - concealing of credit books. This was said to be comprised by failing to record Mrs Hanna's request of 27 April 2011 for the alleged default letter of 21 April 2011 to be resent, or to record any discussions with Mrs Hanna about that alleged letter.
   • c. Section 227 - concealing of credit books. This was apparently comprised by an alleged failure of the ANZ to record in its internal notes that a request had been made by telephone by the FOS for the alleged 21 April 2011 default letter to be resent.
   • d. Section 227 - concealing of credit books. This alleged that the Bank had omitted to tell the FOS in a 21 June 2011 document that it had discussed the alleged default letter with Mrs Hanna [apparently in the 27 April 2011 telephone call].
   • e. Section 227 - falsification of credit books. This alleged that by failing to include reference in its internal notes to the discussion(s) on 27 April 2011 about the 21 April 2011 default letter, the Bank had caused the FOS investigation to be delayed by six months.
   • f. Section 227 - concealing of credit books. This was an allegation that the conduct described above constituted an offence.
   • g. Section 228 - falsification of a credit book. This was a similar allegation that the conduct referred to above constituted a further offence.
   • h. Clause 36 to schedule 1 of the National Credit Code - statements of account. This apparently alleged a failure to provide the Hannas with 'our Bank statement with[in] the NCCPA time period'.
   • i. Section 228 - falsification of credit books. This alleges the bank committed an offence by not including in its internal notes any reference to the Hannas' request for a bank statement.
8. The claim recited the civil penalties applicable for these alleged breaches - in terms of maximum fines (up to 2,000 penalty units) and imprisonment (up to six months). There was a claim by the Hannas for $750,000 for 'damages, losses, hardship and stress'.
9. On 21 August 2012, in the response filed in the FMC, the ANZ contended that this claim should be dismissed as being vexatious, embarrassing and disclosing no cause of action.
10. On 24 August 2012 the Hannas approached Mr Beling. As noted, he is a sole practitioner practising from home with no previous experience of acting for persons in the Hannas' circumstances.
11. From the commencement of his retainer, Mr Beling worked intensively on the Hannas' matter. After his initial telephone conference with Mrs Hanna on 24 August 2012 (30 minutes) Mr Beling had four conferences over the next two weeks (taking seven hours and 45 minutes in total). There were also a number of telephone conversations with Mrs Hanna and an extensive email dialogue with her from late August until the end of the retainer, in January 2013. Frequently there were multiple emails exchanged daily.
12. Mr Beling said the Hannas told him, in effect, that they were asset-rich and cash-poor. He said:

In light of the Hannas' liquidity problems, I advised the Hannas that I would not require all legal fees upfront and would instead formulate a Conditional Costs Agreement which was tailored to this matter and their financial needs. I also agreed to cap their costs at $50,000. They asked about a payment plan and I advised them that this was possible and could be incorporated into the agreement.[18]

1. A composite disclosure statement/conditional costs agreement of six pages was signed by the Hannas on 29 August 2012. This was the first conditional costs agreement Mr Beling had ever drafted. Mr Beling said that on the telephone with Mrs Hanna on 28 August 2012 he went through every provision of the costs agreement in summarised form (pages 1 - 3), and read every word of the conditional costs agreement (pages 4 and 5) to Mrs Hanna. Again, the next day in conference, he said he read every single word (presumably the whole five pages) of the costs agreement/disclosure statement to the Hannas and explained every clause in detail, ensuring they clearly understood.[19]
2. The main components of the conditional costs agreement signed by the Hannas on 29 August 2012 were:
   • Mr Beling's own work would be charged on a time basis - $350 per hour plus $35 GST = $385 per hour.
   • Mr Beling's own legal fees were capped at $50,000 for the entire matter.
   • But if the Hannas recovered more than $50,000, Mr Beling would be entitled to be paid his fees in excess of $50,000 from the settlement award they received.
   • All disbursements would be payable by the Hannas irrespective of the outcome.
   • The range of possible awards or settlements in the Hannas' favour was between $0 and $750,000.
   • The range of possible costs judgments against the Hannas was in the range of $0 to $100,000.
   • If more than $200,000 was recovered, a 25% uplift would apply to Mr Beling's fees.
3. The costs agreement included a payment schedule as follows:

$5,000 to be paid by 12 January 2012[20]

The above payment only cover professional fees and do not include GST. GST is to be paid on top of legal fees.[21]

1. On 7 September 2012, Mr Beling appeared for the Hannas at a directions hearing before FM Riley in the FMC. The outcome was that the matter was to be set down for mediation (subsequently held on 26 November 2012). The ANZ was to file and serve a 'response and any further affidavits' by 21 September 2012. An informal discovery order was made - the parties were to 'mutually exchange relevant documents by no later than 21 September 2012'. If the mediation was unsuccessful, the Hannas were to file and serve a further amended statement of claim by no later than four weeks after the date of the mediation. The affidavits already filed on behalf of the Hannas were to be placed in an envelope marked 'confidential', and only be provided to the mediator or other person who has the leave of the court to inspect them. This was apparently because they referred to without prejudice negotiations conducted through the FOS. The matter was listed for a further directions hearing on 4 February 2013.
2. Between 17 September and 3 October 2012, Mr Beling carried out 21.5 hours of legal research. At his hourly rate of $385 (including GST), this would have amounted to $8,277.50. This included reading or reviewing, and annotating, approximately 91 reported court decisions, plus texts and other documents. Most or all of these had been copied by Mrs Hanna and provided to him at his request. On 12 September 2012, Mr Beling had sent an email to Mrs Hanna attaching 91 case citations, and listing five Explanatory Memoranda for Bills relating to credit regulation. He requested her to print these out, and deliver them to him.[22] These related to a wide range of claims which have been brought in different jurisdictions against banks, and other financial institutions.
3. From September 2012, Mr Beling communicated by email and telephone with the solicitors for the ANZ, HWL Ebsworth. Mr Beling told them every document the ANZ held in relation to the Hannas' loans was required to be produced as these pertained to the allegations of dishonesty and fraud on the part of the ANZ made by his clients. For all privileged documents, he sought details of document, date, author, recipient and short summary of the document in a privilege log. Mr Beling alleged that ANZ had engaged in predatory conduct which amounted to offences under the National Consumer Credit Code. He also noted the ANZ had not sought any documents from his clients. In an undated letter responding to an email from the ANZ's solicitors of 21 September 2012, he said:

This failure to participate in discovery in good faith is not only a flagrant violation of the Court's order, but is also highly reprehensible, unprofessional and unethical on your part, and gives rise to the inference of a consciousness of guilt on your client's part.[23]

There were also references to the Hannas' willingness to 'go to the media' about their claim.

1. The ANZ's position was that it had been agreed at the 7 September 2012 directions hearing only that it would provide a few documents, not formal discovery. This was to enable early mediation, despite the inadequacy of pleadings by (at that stage) Mrs Hanna.
2. Mr Beling's position at the time and throughout this disciplinary proceeding was that provision of the actual 'mortgage documents' was essential before he could provide advice to his clients with any degree of certainty. His clients had lost their copies of the mortgage documents in the Black Saturday bushfires on 7 February 2009. He noted that the mortgage documents for one loan were produced on the eve of the 20 December 2012 directions hearing - which hearing had been called by him in order to pursue discovery - but the ANZ had said at that time that the documents relating to the other loan could not be found.
3. It is apparent from the file that Mr Beling was being strongly urged by Mrs Hanna to pursue claims which objectively appear to be unjustified. For example, there is an undated document on Mr Beling's file (chronologically situated around the end of September) apparently from Mrs Hanna seeking FMC orders in total amounting to $750,000. This includes, for example, the following statements[24]:

Due to ANZ Banks evasive behaviour in complying with legal requests for our loans contracts and bank statements we request an order for our loans to be annulled and for the removal of ANZ bank holding a mortgage over our titles to be removed at the expense of ANZ Bank.

Lengthy time of pain and suffering to Tracie and Peter Hanna

Causing grief to Tracie Hanna as Peter Hanna's interpreter

Causing grief to Tracie Hanna as Peter Hanna's to move forward as a family

Causing grief to the Black Saturday Bushfire psychiatrist recovery compensation

For this we are requesting orders to be made for damages $268,000

1. On a number of occasions throughout the retainer, Mrs Hanna contacted Mr Beling suggesting various novel statutory bases on which the claim against ANZ could be pursued, tactical positions which she said could be adopted, matters she had discovered through her investigations which she said demonstrated ANZ's dishonest or exploitative conduct, court applications which should be made, and reported decisions which were said to be in the Hannas' favour.
2. There are numerous examples of Mr Beling and Mrs Hanna encouraging and praising each other in their efforts to prepare the case alleging corrupt and criminal conduct by the ANZ. Mrs Hanna said 'you are a great writer Joel' and 'You are doing fabulous. Thank you!'[25]. On 5 November 2012 she said to him in an email, 'read statement of claim once through - it's fabulous'.[26]
3. In response to an email of 18 September 2012 from Mrs Hanna stating 'ASX may require this case being disclosed by senior management for shareholders', Mr Beling said 'Ok great. Keep up the good work.'[27] on 21 September 2012, Mr Beling emailed Mrs Hanna:

I am in the process of getting all the documents from them [ANZ]. They are being evasive and deceptive. We will get them because you can't hide court documents from the other party.

They haven't sent us anything yet! Shows consciousness of guilt. This is criminal, what they've done.[28]

1. Mrs Hanna replied:
   1. yes criminal - that's why I brought section 5 of the nccpa act to the courts attention.
   2. if they don't put court docs in, and its up to the courts to pay out we can only get max 750,000.
   3. Settle out of court for confidentiality - remember they approved fos info in late statement of claim acceptance.
   4. We will be asking/fighting the courts (later) for the release of these docs if we don't get a confidentiality agreement.[29]
2. On 9 October 2012, Mr Beling sent an email to Mrs Hanna, which stated in part:

AMD's [sic] lawyer called and wanted to chat. She's very deceptive and evasive and doesn't want to talk on the phone. So, as you instructed, I requested a written response from the ANZ. I think she's panicking

1. On 16 October 2012 Mr Beling sent an email to Mrs Hanna as follows:

I've asked ANZ's lawyers for a formal written response to our discovery requests but they haven't replied. They are scared and are seeking advice from Senior Counsel. It doesn't matter, though, because we've trapped them. Not even God can save them now. Silence means we are winning. I'm determined to get justice for you guys.[31]

1. On 17 October 2011, Mr Beling told Mrs Hanna he had written to ANZ's lawyer threatening her with disciplinary action.[32]
2. On 12 October 2012, an FMC Registrar had written to the parties setting the matter down for a mediation on 26 November 2012. The letter stated:

In preparation for the mediation, I request that you:

1. ...
2. ...
3. (for legal practitioners only) prior to the mediation:

(a) provide a copy of this letter to your client and to counsel who may be briefed to appear at the mediation;

(b) provide your client with written advice as to his or her prospects of success at trial based on the material to hand to date; and

(c) provide your client with a written estimate of costs incurred to date and the further costs likely to be incurred by your client in preparing for and running the trial; these estimates should include an indication of the amount not likely to be recovered by a party and party taxation[33]

1. In response to this, Mr Beling sent the following email to Mrs Hanna on 18 October 2012:

Tracie, I am required by the Registrar to provide you written advice as to your prospects of success at trial based on the material to hand to date. In this respect, I advise that you and Peter have strong prospects for success in the event that the FOS material from ANZ is admitted into evidence. This hinges on overcoming Respondent's claims of privilege, which I believe is achievable given the documents disclose offenses, fraud, misrepresentation, undue influence, and unconscionable conduct, among other causes of action.

As regards costs, I will provide a written account but please note the costs the court may order, in the event that we are successful, may be less, even significantly less than the costs you have paid me. This is the difference between party-party costs (less) and solicitor-client costs (more).

1. In response, Mrs Hanna sent an email to Mr Beling on 19 October 2012, apparently suggesting that keeping the pressure on ANZ to produce copies of documents they had lost in the bushfire and flood, could in some way cause it to waive or lose the privilege which Mr Beling had referred to.[35]
2. Also, in acknowledging the second paragraph of Mr Beling's email of 18 October above, Mrs Hanna said 'the courts may not pay our entire account with you and we are liable'.[36]
3. On 25 October 2012, Mr Beling sent an email to Mrs Hanna which stated in part, 'The court should hear your stories'.[37]
4. On 26 October 2012 Mr Beling sent an email to the psychologist, Mr Stockton, with a copy to Mrs Hanna:

Thanks, Gary. ANZ are violating all the Court orders and refusing to answer any questions or provide any documents, so I think we've got them on the ropes. I'm trying my best to get justice for Tracie and Peter. ANZ announced a $6 billion profit last financial year and I suspect some of it was procured using illegal and unethical tactics like those they employed with the Hannas.[38]

1. On 3 November 2012, Mr Beling drafted a document entitled 'Costs Evaluation for the Purposes of Mediation' which was provided to Mrs Hanna. It stated;

• An estimate of costs incurred to date is between $20,000-$25,000.
• Further costs likely to be incurred by you in preparing for and running the trial are between $25,000-$30,000 (by virtue of our agreed ceiling in the Conditional Costs Agreement of $50,000).
• If you win your case, the Court is likely to award you an estimated amount of approximately $23,684 on a party-party basis as particularized below.
• [There is then set out a table, which appears later in this decision.]
• Therefore if you lose the case, the estimated amount you are likely to be out of pocket is approximately $26,316.[39]

• However, if we negotiate a settlement with ANZ, you may receive more than the expenses you have incurred to date and will incur.

1. On 7 November 2012, HWL Ebsworth sent Mr Beling correspondence and statements relating to the three ANZ accounts. In relation to Mr Beling's requests for additional documents, it stated that the ANZ could only be guided by what is relevant to the current pleadings [namely, Mrs Hanna's claim of 7 August 2012].
2. Mr Beling arranged for his clients not to attend the mediation personally, despite their initial desire to attend, and the ANZ's preference that they should. Mr Beling advised his clients it would be tactically advantageous and less stressful for them not to attend.
3. On 7 November 2012, Mrs Hanna sent Mr Beling an email, headed 'RE Crimes Act - what do you think'. The email contained the text of s 36 of the Crimes Act 1914 (Cth), headed 'Fabricating evidence'.[40]
4. Mr Beling's reply was:

We'll go for it. The worst they can do is strike it out.

ANZ want you at the mediation to trick you into a settlement. I'm resisting it and will call the registrar tomorrow to seek his consent.[41]

1. Between 18 October and 9 November 2012, Mr Beling spent 19 hours drafting a statement of claim (in addition to 27.5 hours of legal research previously recorded). On 9 November 2012, he sent a 'draft Statement of Claim for purposes of mediation' to the ANZ's solicitors. Although it was not filed, it was intended to inform the ANZ broadly of the case which would be brought against it. As I find below, this document was clearly deficient in a number of fundamental ways. It listed a large number of provisions of various consumer protection laws which it alleged had been breached by the ANZ. It made many serious allegations including dishonesty, fraud and falsification of documents. It sought the maximum amount payable under the FMC's jurisdiction of $750,000. This was stated to comprise specific amounts totalling $163,000. The remaining $587,000 appeared to be comprised by 'stress and damages' and 'loss of reputation'.
2. On 9 November 2012, Mr Beling sent an email to Mrs Hanna, which stated, 'don't settle. You risk sacrificing a whale to catch a salmon'.
3. On the same day, Mrs Hanna emailed Mr Beling, saying in part, 'We are concerned we won't financially make it to the long awaited court date, if we don't settle this month'.[42]
4. On or about 13 November 2012, the ANZ's solicitors responded to the draft Statement of Claim. They said they were confused why Mr Beling filed this document when the consent orders of 7 September 2012 provided for further amended pleadings to be filed four weeks after the mediation, if it was not successful. They also complained that the document still failed to comply with the Rules of Court, and significantly broadened the scope of the issues just two weeks before the mediation.[43]
5. On or about 19 November 2012, Mrs Hanna provided written instructions for the conduct of the mediation by Mr Beling. He was instructed to settle the matter for $5 million plus legal costs. This was stated as being for damages pursuant to the draft further amended Statement of Claim as well as for loss of the Hannas' rights to publicise their story in various media. Mr Beling said he advised the Hannas that a multi-million dollar settlement was very very unlikely.[44]
6. The mediation was conducted at the FMC on 26 November 2012. The Hannas did not attend. The matter did not resolve. Mr Beling's handwritten note of the mediation states 'no counter offer re: $5m'[45]. In his subsequent response to the LSC he said that at the mediation the ANZ made an offer to cancel the arrears on the Hannas' loans, amounting to approximately $40,000.[46]
7. On 27 November 2012, Mr Beling sent an email to HWL Ebsworth giving notice that he intended to call two solicitors of that firm as witnesses in relation to issues of fraud, unconscionability, misrepresentation, undue influence, economic duress and disciplinary offences under the Professional Conduct and Practice Rules 2005.[47]
8. The next day, HWL Ebsworth lodged a complaint with the LSC against Mr Beling.
9. Mr Beling sought to arrange for the draft Statement of Claim to be settled by counsel. He hoped this could be done quickly, and inexpensively. He sent a brief to Mr Joshua Kohn of counsel on 5 December 2012, and some other materials prior to that. On that day he told Mrs Hanna Mr Kohn's 'rates are $330 per hour and $3000 per day but hopefully it will only cost about $1000 - $2000 to fix the statement of claim.'[48]
10. Also on 5 December 2012 he sent an email to Mr Kohn's secretary, referring to the statement of claim as follows:

No conference is necessary until after the Statement of Claim is completed. Just work off and revise the attached draft, in light of the documents submitted.

I would estimate between 3 hours - one day of work at most. Please advise if I am incorrect.[49]

1. However, later that day Mr Beling sent an email to Mrs Hanna stating:

The barrister I hired wants to do the whole statement of claim from scratch and throw away everything I've done. He wants $6000, so I'm looking for another barrister.[50]

1. In my view, for the reasons set out in this decision, that was an appropriate response by counsel to the document which had been drafted by Mr Beling. The draft required far more than just 'polishing'. The basis of the claims made needed to be properly considered, and if justified the claim then needed to be redrafted from scratch.
2. It is not apparent that any further steps were taken to brief a different barrister.
3. On 12 December 2012 Mr Beling sent a letter to the FMC addressed directly to Federal Magistrate Riley.[51] He sought orders on the papers arising from ANZ's 'flagrant violation' of the Court orders 3 and 4 of 7 September 2012 (relating to filing a response, any further affidavits and exchange of documents by 21 September 2012). In response, FM Riley's associate emailed Mr Beling on 13 December 2012 stating that orders could not be made without consent and an affidavit would be required. The next day, 14 December 2012, the FMC set the matter down for a directions hearing on 20 December 2012.
4. On 14 December 2012 Mr Beling apparently filed[52] an affidavit for the purposes of the 20 December 2012 directions hearing. It was largely directed towards his contention that the ANZ had not complied with its obligations to discover relevant documents.
5. Also on 14 December 2012, HWL Ebsworth sent an email to Mr Beling contending it had provided documents relevant to the current pleading filed (being Mrs Hanna's claim of 7 August 2012) and refusing to provide other documents until such time as the amended statement of claim was filed in accordance with the orders of 7 September 2012 namely, four weeks after mediation.[53]
6. On 19 December 2012, an affidavit was filed by Ms Belinda Randazzo of HWL Ebsworth.[54] It contested Mr Beling's account of discussions he had with her, and also complained they were without prejudice, and so should not have been disclosed in his affidavit. It contended that the ANZ had complied with its obligations to provide documents relevant to the current version of the statement of claim. It also referred to documents provided to Mr Beling by the ANZ on 7 November 2012, and the process whereby the FMC's approval was given for the Hannas not to attend the mediation. It stated that on that day (19 December 2012) Mr Beling had been sent a copy of the contract for one of the loans, and advised that the ANZ was still attempting to locate the other home loan contract.
7. At that directions hearing on 20 December 2012, orders were made that the ANZ was to provide 'a complete copy of the mortgage between the parties' and 'copies of correspondence between the parties up to 7 February 2009' (since the Hannas' copies of documents were destroyed in the Black Saturday bushfires on that day). The ANZ was to provide this material by 14 February 2013. The Hannas were to file a further Statement of Claim by 12 April 2013.
8. On 26 December 2012, following receipt of instructions from Mrs Hanna that she in fact did have a part copy of the contract home loan, Mr Beling replied:

That's good. We can use it for comparative purposes in the event they give us a fake, reconstructed, and doctored contract, which they will.[55]

1. On 27 December 2012 Mr Beling sent an email to Mrs Hanna including the statement 'causation is a big issue'.[56] The issue of causation was referred to in earlier communications with the Hannas.
2. On 3 January 2013 Mr Beling sent an email to Mrs Hanna as follows

I will be contacting ANZ's solicitors regarding whether ANZ wishes to commence a proceeding in the Supreme Court, which is their right. In the interim, please advise if you wish me to submit a without prejudice settlement offer. We discussed $200,000 at the last conference but it's your call.

1. On and from 3 January 2013 Mrs Hanna sent emails to Mr Beling expressing concern about the amount of fees charged. In particular, she was concerned that he intended to brief a barrister to prepare, or finalise the Statement of Claim. It appeared she was unhappy that this could not be done by Mr Beling himself, and that a barrister would become involved, which would entail an extra set of fees being incurred for doing what she regarded as his job. She also expressed concern about the 25% uplift. She sought to re-negotiate the retainer. Mr Beling's position was that preparation of a statement of claim was premature, before the loan and mortgage contracts were received from the ANZ. Looking for ways to reduce costs, she sent an email to Mr Beling on 4 January 2013 in which she said:

I am searching the internet again for a statement of claim if I can get one the job can be done.[57]

1. On 14 January 2013 Mr Beling imposed a deadline of 18 January 2012 to pay his outstanding fees, or he would cease to act. At that stage, the Hannas had paid $9,850 (including GST), with the last payment having been made on 16 September 2012. Mr Beling sought an additional $42,600.
2. On 23 January 2013 Mr Beling filed a notice of intention to withdraw as lawyer for the Hannas. On 30 January 2013 he filed notice of ceasing to act.
3. On 18 February 2013, the LSC wrote to Mr Beling about the complaint he had made earlier against two solicitors from HWL Ebsworth Lawyers. The LSC dismissed the complaint under s 4.2.10(1)(b) of the Act. This provides for dismissal where a complaint is vexatious, misconceived, frivolous or lacking in substance. The LSC indicated that Mr Beling's complaint concerning the discovery process needed to be dealt with by the court, and the LSC could not intervene unless the court made an adverse finding against the solicitors. The letter noted that the firm had previously made a complaint against Mr Beling, but did not state what the outcome of that complaint was.
4. On 21 February 2013 Mrs Hanna filed a complaint about Mr Beling with the LSC. There followed an extensive dialogue in the form of correspondence between the LSC and Mr Beling about the complaint, over the next 18 months.
5. On 11 April 2013 Mr Beling provided his first response to the LSC (17 pages).
6. On 15 April 2013 Mr Beling filed a civil application at VCAT seeking to recover his fees (matter No. J82/2013).
7. On 11 June 2013, the FMC proceeding against the ANZ was dismissed by consent. A copy of the settlement agreement was provided to the Tribunal by the ANZ under subpoena issued at Mr Beling's request.
8. On 23 June 2013 Mr and Mrs Hanna filed a civil application in VCAT, in effect, a counterclaim alleging overcharging and negligence (matter J130/2013).
9. On 21 November 2013 an application which the Hannas had brought to reinstate the FMC proceeding against the ANZ was refused. However, I understand that litigation between the Hannas and the ANZ is still on foot - now in the Supreme Court of Victoria, and that at least for part of the time, the Hannas' case has been conducted by an administrator appointed by a VCAT member appointed under the Guardianship and Administration Act 1986.
10. On 16 January 2014 Mr Beling's second response was provided to the LSC (17 pages, plus 46 pages of attachments).
11. On 22 April 2014, Mr Beling's third response was provided to the LSC (23 pages plus 26 pages of attachments).
12. On 20 May 2014 the LSC gave Mr Beling a final opportunity to respond to its concerns, by way of a 'Murray' letter. On 18 July 2014, Mr Beling provided his fourth response to the LSC. This amounted to 182 pages of explanation, in addition to 31 pages of attachments. This included detailed commentary about each step taken in the proceedings from August 2012 to January 2013, such as particular conferences and telephone calls and contained detailed analysis of the law in relation to each of the statutory claims included in the draft Statement of Claim, including detailed analysis of decisions which Mr Beling said were applicable
13. On 12 May 2015, the LSC filed its Application for Order, which commenced this disciplinary proceeding in VCAT.
14. However, on 17 November 2014, Mr Beling had commenced a proceeding in the Supreme Court challenging the foreshadowed future commencement of disciplinary proceedings against him at VCAT. Amongst other things, this alleged that the VLSC had abused its discretionary powers, not acted in good faith and that the Commissioner's delegates were biased against him. By 5 January 2015, Mr Beling had decided he wished to discontinue the proceeding. However, there was a dispute about costs. The Court considered the merits of Mr Beling's claims and rejected them all. On 22 April 2016, Mr Beling's application was summarily dismissed, with costs,[58] whereupon this matter was listed for hearing.

1. The VLSC relied on an expert report by Mr Malcolm Howell. Mr Howell is well qualified, through his long career in the sphere of regulation of legal practitioners (including five years a senior member of VCAT) to provide expert evidence analysing the acts and omissions of Mr Beling in acting for his clients.
2. The VLSC did not provide Mr Howell with copies of the exchanges between it and Mr Beling during the course of the investigation. These were very substantial, and extended over a period of at least 18 months. I understand this was on the basis that there be no suggestion Mr Howell was purporting to give evidence as to the ultimate outcome of this proceeding. Mr Howell in effect conducted a 'desktop' analysis of Mr Beling's file.
3. Mr Beling contended that Mr Howell's evidence was very substantially undermined by the exclusion of up to 130 pages of material from his file, which he said was 'of high forensic importance'. For the reasons stated above, I do not accept that submission.
4. The methodology adopted by Mr Howell was to identify, in relation to 10 aspects of Mr Beling's handling of the Hannas' matter, the things that a reasonably competent and diligent legal practitioner would do, and to compare them with what Mr Beling actually did. As noted below, an analysis of competence and diligence forms part of the statutory test for both unsatisfactory professional conduct under s 4.4.2 of the Act (below the standard the public is entitled to expect) and professional misconduct under s 4 .4 .3 (1)(a) of the Act (a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence).
5. Mr Howell was instructed, and prepared his report dated 3 August 2016, more than a year after the Application for Order was filed with the Tribunal. (That was dated 12 May 2015.) The 10 aspects of Mr Beling's conduct considered by Mr Howell did not fully dovetail with the particulars of conduct or the nine key allegations set out the in Application for Order. No amendments were sought to be made to the Application for Order after Mr Howell's report was received.
6. Of course, to the extent Mr Howell identified concerns which are not included in the charges and particulars in the Application for Order, these do not form part of the allegations I have to consider.
7. The conclusions reached by Mr Howell about matters which are not reflected in the charges and Particulars in the Application for Order, were identified by me during the course of the hearing, and agreed by the parties. These are the matters dealt with at paragraphs 29 - 40, 41 - 46 in part [59], 47 - 52., 59 - 67, and 68 - 79. That is, four of the 10 topics dealt with by Mr Howell, and a fifth (in part) are not the subject of allegations against to Beling.

1. Mr Hicks is a partner of the firm of Hicks Oakley Chessell Williams. He is an Accredited Specialist in commercial litigation. He has 30 years' experience in commercial litigation and related areas.
2. In cross-examination, Mr Hicks adhered to the view expressed in his report that in the conduct of the Hannas' matter overall Mr Beling had not substantially or consistently failed to reach or maintain a reasonable standard of competence and diligence. That is, that his conduct did not amount to professional misconduct in the statutory sense.
3. This was despite him accepting that the draft Statement of Claim was clearly deficient. Mr Hicks referred to a number of mitigating factors in relation to that document. These included the Hannas' strong instructions, that there was no indication it was ever intended to be filed in court, and that it was not inappropriate to provide the ANZ with an indication of the types of claims to be made against it, prior to the mediation.
4. In relation to a number of aspects of Mr Beling's conduct, Mr Hicks expressed the opinion that these did not fall below the standard of competence and diligence a member of the public is entitled to expect from a reasonably competent legal practitioner. That is, that Mr Beling's conduct did not amount to unsatisfactory professional conduct, as defined in the Act, in relation to those aspects.
5. But he did not express this view in relation to the draft Statement of Claim, or in relation to the topic of the mediation and the settlement negotiations generally (paragraphs 116 - 152 of Mr Howell's report). These are two of the most important aspects of Mr Beling's conduct which fall for consideration in this case.
6. The evidence of the two experts drew the Tribunal's attention to a number of relevant matters amongst the large volume of material produced, and illuminated some of the issues the Tribunal needs to consider. Ultimately of course, conclusions as to how Mr Beling's conduct is to be characterised are for the Tribunal.

THE MAIN BASIS OF THE HANNAS' CASE - THE ALLEGED STATEMENTS BY TELEPHONE BY ANZ ON 27 APRIL 2011

1. The case being pursued by Mr Beling, and the draft Statement of Claim he prepared for mediation purposes only, was very substantially based on statements said to have been made by unnamed ANZ employees to Mrs Hanna in a telephone conversation on 27 April 2011. Mrs Hanna said that two separate ANZ employees had both told her in that conversation that a default letter had been sent to Mr Hanna dated 21 April 2011, and the consequence of this was that all arrears on his accounts had to be paid by 29 April 2011, or the bank would commence foreclosure proceedings against them.
2. Mr Beling said Mrs Hanna said that on at least four or five occasions after the 27 April 2011 telephone call she was told by ANZ employees that this default notice would be re-sent to them. Ultimately, it was never sent, because it did not exist. This was confirmed by the ANZ in its letter to Mr Hanna of 2 November 2011. Mrs Hanna also said she had been told verbally by an ANZ employee on 15 August 2011 that the default letter of 21 April 2011 did not exist.
3. It was not made clear during the proceeding precisely how the case against the ANZ would be put. None of the participants in the hearing, including Mr Beling and Mr Hicks, could satisfactorily explain this. However my understanding from the material put before the Tribunal and the oral evidence given, is as follows.
4. It is contended the statements by telephone on 27 April 2011 comprised a misrepresentation by the ANZ, which was designed, or at least had the effect, of causing the Hannas to apprehend that foreclosure would happen soon. This state of uncertainty continued for six months (until 2 November 2011) or at least for three and a half months (until 15 August 2011). During that time, the Hannas faced the prospect of losing one or both of their houses at Flowerdale, and at Coolaroo - in the event that the ANZ obtained a foreclosure order. In cross-examination, Mr Beling described the ANZ's conduct as seeking to obtain the benefit of payment of arrears without having to go to the bother and expense of foreclosing.
5. The Hannas had intended to rebuild their Flowerdale house, and to continue to live on site. They had purchased a transportable home, which was to be placed on the stumps of their home following the bushfire. They had $45,000 left. They hoped to use these funds on roofing, fencing and placing the transportable house on the stumps and then re-capitalise the loan relating to the Flowerdale property.
6. However, in response to the danger that the ANZ might foreclose, the Hannas, not wanting to lose both houses, retained the $45,000 (apparently in case they needed to pay this to the ANZ) and moved into the Coolaroo house (although Mr Beling said he believed this did not occur until November 2011).
7. The consequence of this was they lost the rent they otherwise would have received from the Coolaroo property. They also became ineligible for certain government grants and other assistance in relation to the Flowerdale house, because they were not living there. They also experienced other difficulties, such as delay resulting in the transportable house being damaged. Due to weather exposure, and crane not being able to operate because of the wet winter weather, and medical complaints and stress exacerbated by their financial situation.
8. The lost government assistance was quantified at up to $70,000. The other quantified items of loss claimed in the draft Statement of Claim prepared by Mr Beling amounted to $92,000. These related to floors, kitchen, bathroom, verandas, electrical, doors[60] and lost rental payments. So the total claim for specifically quantified items was $162,000. The remaining $588,000 claimed appeared to be comprised by 'stress and damages' and 'loss of reputation'.
9. Although no comprehensive review of the strength of the Hannas' case was undertaken as part of this hearing, it is obvious there were a number of uncertainties and potential weaknesses. These include:
   • Possible challenge to Mrs Hanna's reliability and/or credit.
   • Evidence which appears to indicate that foreclosure was not imminent.
   • Doubts about the applicability of the National Credit Code to Mr Hanna's loan(s). One of them was described as an investment loan.
   • The fact that a number of the statutory claims had the appearance of being far fetched. and that any irregularities by the bank could be the result merely of errors, rather than malicious intent.
   • Potential difficulties in proving causation (including as a result of the fact that the loans were in arrears).
   • The lack of itemisation and proof of loss, including the apparent claim for $588,000 for 'stress and damages' and 'loss of reputation'.

CONSIDERATION OF THE NINE KEY ALLEGATIONS MADE BY THE VLSC

1. I now turn to an evaluation of the evidence in relation to each of the nine key allegations made by the VLSC against Mr Beling.

Allegation 1 - adequacy of the draft Statement of Claim:

1. Paragraphs 54-56 of the VLSC's application for order state:
   1. According to his file the respondent drafted the Statement of Claim on the following dates: 18 October 2012; 21 October 2012; 30 October 2012; 4 November 2012; 8 November 2012 and 9 November 2012.
   2. On or about 9 November 2012, the respondent provided the draft Statement of Claim for the purposes of mediation (Annexure 18) he had prepared to solicitors for the ANZ bank in the proceeding.
   3. The draft Statement of Claim prepared by the respondent:

(a) contains serious allegations such as fraud, dishonesty, corruption and intent to conceal evidence without a proper basis;

(b) pleads material irrelevant to the causes of action (including pleading requests for discovery of documents);

(d) is embarrassing as it is incomplete and confused and does not comply with the Court's Rules;

(e) claims relief without pleading how it is caused by the contraventions referred to.

1. The Draft Statement of Claim was clearly deficient in a number of fundamental ways:
   • Mr Beling's version appeared to adopt and expand the allegations made by Mrs Hanna in her third Statement of Claim filed on 7 August 2012 under ss 36, 225, 227 and 228 of the National Credit Code.[61] It also added claims under ss 33, 38, 88, and 229 of that Code. It also alleged breaches of s 53(f) of the 'formerly entitled Trade Practices Act 1974', s 36 of the Crimes Act 1914 (Cth) (two instances), unconscionable conduct within the meaning of the unwritten law, breach of s 12CA of the Australian Securities and Investments Commission Act 2001 (Cth), unconscionable conduct within the meaning of Schedule 2, s 20 of the Australian Competition and Consumer Act 2010 (Cth), unconscionable conduct within the meaning of Schedule 2, s 21 of that Act, undue influence within the meaning of the unwritten law, economic duress within the meaning of the unwritten law, misrepresentation within the meaning of the unwritten law and fraud within the meaning of the unwritten law.
   • It referred to the ANZ employees' telephone conversation with Mrs Hanna on 27 April 2011, apparently as the basis for a number of claims, but did not explain how it comprised a breach of the common law and statutory provisions referred to.
   • It alleged matters such as 'a clear dishonest and corrupt intent to conceal evidence', without providing any comprehendible indication of how these allegations were made.
   • Numerous allegations of dishonesty, fraud falsification of records and the like were made, but in a way in which the ANZ was not able to respond to.
   • It was drafted in a confusing manner with medical issues in disbursed amongst financial matters.
   • Every new paragraph in the 18 page close typed document was numbered '1'. Hence the paragraph cross-references in it are unable to be understood. Even if paragraphs are numbered manually by the reader, the paragraph cross-references do not make sense (for example, the frequent references to paragraphs '1 - 13').
   • It appeared to purport to rely on alleged failures to provide discovery as causes of action. It described nondisclosure (pursuant to informal discovery ordered by the FMC on 7 September 2012) as demonstrating 'a clear consciousness of guilt'.
   • It sought the maximum amount payable under the FMC's jurisdiction of $750,000. It referred to specific amounts, but these only total $162,000.[62] The remaining $588,000 appeared to be comprised by 'stress and damages' and 'loss of reputation'.
2. In the draft Statement of Claim, Mr Beling said (at page 7):

Regarding Applicants' request for its loan contracts and bank statements, ANZ dishonestly refused to disclose such documents and stated that it will disclose such documents "as information becomes available". Such conduct is corrupt in the extreme. It beggars belief to suggest that ANZ have difficulty locating a client's documents in general and the Applicants' documents in particular. ANZ is simple concealing evidence and dishonestly stalling for time. [sic]

1. As an example of the lack of clarity in the draft Statement of Claim, the third paragraph on page 10 stated as follows:

It is alleged that Respondent's conduct in paragraphs 1-13 (which are incorporated by reference herein) contravenes section 38(6) of the NCC since the Respondent, a credit provider, began enforcement proceedings on the basis of a default arising from the disputed liability without a written explanation or advice as to the dispute. In particular, Respondent claimed to have sent such a written explanation or advice on the 21st April 2012 but no such document was sent and Respondent had full knowledge at all material times that no such document was sent.

1. In cross-examination, Mr Beling said the allegation that the ANZ had actually begun enforcement proceedings referred to two different matters: First, enforcement proceedings he said were commenced by the ANZ in 2010 . And second, enforcement proceedings apparently said to have been deemed to be commenced as a result of the alleged statement by telephone on 27 April 2011 that a default notice had been sent on 21 April 2011 [it appears Mr Beling intended to refer to 2011, not 2012].
2. In fact, it is not apparent that either such enforcement proceeding was commenced - no commencement dates or court matter numbers are referred to.
3. In cross examination, Mr Beling accepted that there was no reference to the alleged 2010 enforcement proceedings. Consequently, there is no way the reader could understand that that is what he was referring to.
4. Similarly, there is no statement as to how it was alleged that the statement by employees of the ANZ on 27 April 2011 constituted the commencement of default proceedings.
5. Without information explaining how these allegations were put, it would obviously have been impossible for the ANZ to respond to the allegation that it had breached the obligation in contravened s 38(6) of the National Credit Code not to bring enforcement proceedings until 30 days after a written explanation or advice as to the dispute has been given.
6. Further, the notion that enforcement proceedings had been deemed to be commenced as a result of the alleged statement by telephone on 27 April 2011 seems fanciful. Numerous other allegations of a similar character were made - which appeared on their face to be contrived and speculative.
7. A further example of the inadequate way in which serious allegations made against the ANZ were pleaded, is in the first full paragraph on page 11 of the draft Statement of Claim. Mr Beling alleged a contravention of s 227(1)(a) of the National Credit Code by the ANZ, comprised by altering a credit book. The paragraph goes on to refer to 'deleting information detailing Respondent's representatives' conversations with Tracie Hanna'. It is not made clear what material is alleged to have been deleted. Nor is it made clear the basis on which the alleged alteration of the ANZ's telephone log is apparently alleged to comprise an 'alteration of a credit book', contrary to s227(1)(a) of the National Credit Code.
8. On page 13 of the draft Statement of Claim, the following paragraph appears:

1. It is alleged that Respondent's conduct in paragraphs 1-13 (which are incorporated by reference herein) contravenes section 36 of the Crimes Act 1914 (Clth) since the Respondent or an individual officer of Respondent fabricated evidence of Respondent's alleged letter to Applicants dated 21st April 2011 and/or made use of this fabricated evidence while Respondent or an individual officer of Respondent did so with the intention of misleading a court or judicial tribunal in a judicial proceeding, namely the Financial Ombudsman Service investigation, which is a federal judicial proceeding.

1. The following paragraph made the same allegation in relation to an Australian Securities and Investments Commission investigation.
2. The draft Statement of Claim also catalogued an extensive list of medical conditions, and conditions diagnosed, including a number of very intimate matters. The claim included many paragraphs listing particular medical complaints the subject of visits to health professionals on particular dates from January 2009, listed in chronological sequence. These were derived from the Hannas' medical records, which Mr Beling had arranged to be provided to him. Many appear to relate to pre-existing conditions. These entries appear to have been included without discrimination, and without any apparent regard their relevance to the claim. Their inclusion seemed to suggest that a personal injuries claim would be made by Mr and Mrs Hanna, but no such claim was made in the document.
3. Mr Beling said these matters were relevant to support the contention that the Hannas were vulnerable persons, for the purpose of an unconscionability claim. However, there was no articulation of how the ANZ was said to have taken unfair advantage of the Hannas. Further, it does not appear that it was necessary for all of the details mentioned, - including those relating to very intimate matters - to be included to demonstrate a 'special disadvantage'. It was readily apparent, for example that Mr Hanna (the owner of the mortgaged properties) suffered from deafness, could not read or write, was a Centrelink recipient, and was a victim of the Black Saturday bushfires.

Applicants seek the maximum amount payable under the Court's jurisdiction:

1. Lost Government assistance $70,000.00 for labour and materials.

Due to stress Applicants had to move back to the Coolaroo rental property this has made them ineligible for this package.

1. Lost Floors to be pulled up and replaced due to rain $20,000

1. Lost Bathroom $10,000
2. Lost Verandas wood, flooring etc $20,000
3. Electricals $10,000
4. Doors $5,000
5. Possible structure
6. Rent from rental property $250.00x 68 weeks

Continuing losses caused by Respondent's and Respondent's legal practitioner's dishonest and delaying conduct.

1. Damages.
2. The Applicants seek an order from the Court that the Respondent be reprimanded and/or fined for contraventions of the National Credit Code.
3. The Applicants seek an order from the Court that the Respondent be reprimanded and/or fined for contraventions of the Trade Practices Act.
4. The Applicants seek an order from the Court that the Respondent be reprimanded and/or fined for contraventions of the ASIC Act.
5. The Applicants seek an order from the Court that the Respondent be reprimanded and/or fined for contraventions of the Crimes Act.
6. The Applicants seek an order from the Court that the Respondent be reprimanded and/or fined for contraventions of the CC Act.
7. The Applicants seek an order from the Court that the individual officers of the Respondent who have contravened, or authorized the contravention of, provisions of the National Credit Code which carry terms of imprisonment as possible penalties, be so sentenced to terms of imprisonment, either suspended or immediate.
8. The Applicants seek an order from the Court that the individual officers of the Respondent who have contravened, or authorized the contravention of, s.36 of the Crimes Act which carry terms of imprisonment as possible penalties, be so sentenced to terms of imprisonment, either suspended or immediate.
9. The Applicants seek an order from the Court that the Respondent be ordered to make restitution and/or pay compensation to the Applicants for contraventions of the National Credit Code.
10. The Applicants seek an order from the Court that the Respondent provide all bank statements relating to the three loan accounts the Applicants have with the Respondent.
11. The Applicants seek an order pursuant to s 68 of the Consumer Credit Code that the payments or payment owed by the Applicants to the Respondent be postponed and/or that the time for payment be extended.
12. The Applicants also seek an order pursuant to s 114(1) of the Consumer Credit code for the payment of restitution or compensation by the Respondent in respect of the Respondent's contravention of s 80 of the Consumer Credit Code.
13. Cancellation of all or some of the arrears and interest owed by the Applicants to the Respondent.
14. That there was unconscionable conduct sufficient to warrant a complete or partial discharge of one, two or all of the mortgages and/or loss accounts.
15. That there was misrepresentation sufficient to warrant a complete or partial discharge of one, two or all of the mortgages.
16. That there was fraud sufficient to warrant a complete or partial discharge of one, two or all of the mortgages.
17. That there was economic duress sufficient to warrant a complete or partial discharge of one, two or all of the mortgages.
18. That there was undue influence sufficient to warrant a complete or partial discharge of one, two or all of the mortgages.
19. The Applicants seek an order from the Court that the court make any consequential order it considers appropriate in the circumstances.
20. Legal costs.

-------------------------------------------------------------

This draft pleading was prepared by : Joel Beling, Solicitor for the Applicants.

1. I agree with the view expressed by Mr Howell that the claim, had it been filed, was liable to be struck out as not disclosing a cause of action, or being frivolous or vexatious.
2. The VLSC said that there might be some germ of merit in the Hannas' circumstances somewhere. But it said any possibly arguable claim was undermined by the inclusion of numerous overblown, and on their face, spurious claims.
3. Mr Beling's expert, Mr Hicks, agreed that the draft Statement of Claim was deficient. He acknowledged he had difficulty understanding the basis of the claims in the document. He said in his report it could not be doubted that it uses extreme language. In effect, he accepted the proposition that it would have been better to brief counsel experienced in the area, to draft this document from scratch. Mr Hicks acknowledged that the draft produced by Mr Beling was not something counsel could have used as the basis for the drawing of a claim by the Hannas against the ANZ. Mr Hicks was asked whether, if he was presented with this document by an employee solicitor, he would allow it to go out. He said he would not.
4. It must be borne in mind, of course, that this was explicitly a draft document. It was stated to be 'for purposes of Mediation'. The stage of filing a 'proper basis' certificate was never reached. However, Mr Beling's conduct at the time indicated that he believed the document simply required counsel to 'polish and amend it' before it could be filed. His communications with Mr Kohn, referred to above, indicate that Mr Beling believed that the claim could be tidied up quickly and inexpensively by counsel. His response to being told that the claim needed to be redrafted from scratch and that everything he had done needed to be thrown away, was to reject this advice, and say to his clients that he would look for another barrister.
5. In the light of this, the submissions in this hearing by Mr Beling that the draft Statement of Claim was never intended to be filed, do not accurately describe the situation. In the hearing, Mr Beling, and Mr Hicks, emphasised that the document had a more general purpose - to put the ANZ on notice about the issues it faced, including requests for discovery.
6. However, in my view this submission has a large degree of reconstructing history about it. It is clear Mr Beling intended that this document would substantially form the basis of the Statement of Claim the Hannas would file four weeks after the mediation (if it was not successful) subject to being polished and amended by counsel. During the hearing, in response to the question whether the draft was 'well short of final form', Mr Beling said 'no'.
7. The claim was confusing. It included a great deal of intimate medical detail, when that was apparently unnecessary. It used inappropriately emotive and loaded language. More significantly, the claim comprised an expanded scattergun of allegations (as compared with the earlier three claims drafted by Mrs Hanna). Neither the alleged factual matters which were relied upon, nor the causal links to the allegations made, were made clear. The amount claimed, the jurisdictional limit of $750,000, did not seem to bear any relation to the alleged losses specified. (As noted, the costs agreement stated that the possible awards or settlements in the Hannas' favour were between $0 and $750,000.)
8. Mrs Hanna had had three attempts to draft the claim on behalf of herself and her husband. This had the appearance of being drafted by a person who had scoured the National Credit Code for serious allegations which could be made against a bank, and sought to apply them here. The claim was in dire need of redrafting into a coherent form. It would have been useful if a coherent statement of the main components of the claim had been provided to the ANZ prior to mediation. However, Mr Beling's draft, instead of bringing clarity and coherence, only enlarged the document and magnified the confusion.
9. Further, it contained numerous allegations of fraud, falsification of documents, dishonesty, corruption and destruction of evidence. The basis for these serious allegations was not made clear in the document. Nor was Mr Beling able to say what this was when giving his evidence to the Tribunal, although he continued to defend the document throughout the hearing. (See also the analysis under allegation 2 below.) In the end, it appeared that these allegations were based on the 27 April 2011 telephone call, and the ANZ's alleged failure to provide discovery. In relatin to the latter, formal discovery had not been ordered prior to mediation, and Mr Beling had made these allegations without taking up the opportunity afforded by the Liberty to Apply given to him by the Court.
10. I find allegation 1, and in particular the five matters set out in paragraph 56 of the Application for Order, proved.

Allegation 2 - adequacy of advice on prospects of success (including allegation 8 in part)

1. Paragraphs 57 - 58 of the VLSC's application for order state:
   1. The respondent wrote to the Hannas on 18 October and early November 2012 with his purported advice on prospects and likely costs as required by the Registrar of the Federal Magistrates' Court of Australia by email and provided a document as follows (as set out in his initial response):

Tracie, I am required by the Registrar to provide you written advice as to your prospects of success at trial based on the material to hand to date. In this respect, I advise that you and Peter have strong prospects for success in the event that the FOS material from ANZ is admitted into evidence. This hinges on overcoming Respondent's claims of privilege, which I believe is achievable given the documents disclose offenses, fraud, misrepresentation, undue influence, and unconscionable conduct, among other causes of action.

As regards costs, I will provide a written account but please note the costs the court may order, in the event that we are successful, may be less, even significantly less than the costs you have paid me. This is the difference between party-party costs (less) and solicitor-client costs (more).

[Note - the following document was drafted by Mr Beling on 3 November 2012, and provided to the Hannas:]

• An estimate of costs incurred to date is between $20,000-$25,000.
• Further costs likely to be incurred by you in preparing for and running the trial are between $25,000-$30,000 (by virtue of our agreed ceiling in the Conditional Costs Agreement of $50,000).
• If you win your case, the Court is likely to award you an estimated amount of approximately $23,684 on a party-party basis as particularized below.

STAGE 1A (Initiating application which includes interim orders (other than procedural orders) up to completion of first day:

STAGE 2: Interim or summary hearing as a discrete event (eg. hearing to determine the admissibility of the FOS material disclosed by ANZ over which ANZ claim privilege)

STAGE 4: Dispute resolution litigation intervention (mediation)

STAGE 5: Preparation for a final hearing (5 day matter)

Disbursements: Court fees and other fees and payments, to the extent that they have been reasonably incurred.

• Therefore if you lose the case, the estimated amount you are likely to be out of pocket is approximately $26,315.
• However, if we negotiate a settlement with ANZ, you may receive more than the expenses you have incurred to date and will incur.

The requirement of a written advice on prospects was set out in the notice dated 12 October 2012 from the Registrar of the Federal Magistrates' Court of Australia in preparation for the mediation between the parties referred to at paragraph 20 above.

A copy of the notice dated 12 October 2012 was in the practitioner's file as produced to the Commissioner pursuant to s 4.4.11(1)(a) of the Act.

1. The above email dated 18 October 2012 was not an adequate written advice on prospects of success at trial based on the material at hand for the proceeding.

(a) assist the respondent's clients, the Hannas, to understand the issues in the case and the clients possible rights and obligations sufficient to permit the Hannas to give proper instructions;

(b) identify an appropriate legal basis for the proceeding; and

(c) identify any of the material facts in support of or inconsistent with the legal claim/s contained in the proceeding; and

(d) set out any reasons why the Hannas had 'strong prospects for success' having regard to the law and material facts;

(e) refer to or address any of the relevant legal claims or defences in the proceeding;

(f) identify the legal claims and material facts in support in circumstances where the Statement of Claim filed in the proceeding was prepared by the Hannas and did not comply with the Court Rules;

1. The email of 18 October 2012 was the only 'formal' written advice provided by Mr Beling to the Hannas. While allegation 2 refers to that email, this allegation would be of little significance if adequate written advice had been provided other than by way of that email.
2. In the hearing, Mr Beling stuck by his assessment that the claim was worth $750,000. But he submitted that his advice that there were strong prospects of success was expressed as being conditional on obtaining certain documents. He also contended that in all the circumstances, he had sufficiently explained to his clients the basis of this assessment. He relied on other documents, and on oral advice as constituting elaboration on the 18 October 2012 email. He also contended that a successful outcome had in fact been achieved.
3. Accordingly, the real issue for consideration is whether Mr Beling provided adequate advice on the issues in the case and on the prospects of success, at any time during the course of his retainer, including at the important stage of prior to the mediation. This is in effect the issue raised by allegation 8, and so it is appropriate to carry out the analysis of allegations 2 and 8 together (aside from the costs aspect of allegation 8, which is dealt with under allegation 3 below).
4. Allegation 8 is set out in paragraph 67 of the VLSC's application, which states:
   1. During the period 24 August 2012 to January 2013 when the respondent was engaged to provide legal services to the Hannas, he did not provide adequate legal advice to the Hannas explaining the issues in the case (including those of fact and law) and the Hannas' rights and obligations in respect of the proceeding.
5. Thus, Mr Beling's submission that the letter of 12 October 2012 from the FMC Registrar was merely a request, and not a requirement, nor an order, loses significance. Clearly, Mr Beling did have an obligation to give his clients strategic advice on the major strengths and weaknesses of their case, especially prior to the mediation, regardless of whether this was informally requested or required, by the Registrar or not. Indeed, Mr Beling said he conceded there was a legal requirement to provide legal advice to the Hannas on prospects prior to the mediation under his common law duty of care and competence.[63]
6. I accept that paragraph 58(a)-(f) does correctly articulate Mr Beling's obligations to his clients.

1. In his fourth response to the VLSC, dated 18 July 2014, Mr Beling said (at page 8):

In essence, the Hannas' instructions followed a two-stage plan (devised by Mrs Hanna), which, for purposes of convenience, I have labelled Plan A and Plan B. In Plan A, Hannas instructed me to pursue a $5,000,000 out-of-court settlement with absolutely no recourse to the courts, using the documents the Hannas had obtained from the ANZ as leverage to allow the bank to save face, conceal a scandal and pay the Hannas 'hush money' to keep the scandal out of the court system and out of the public's eye '.[64]

1. In relation to 'Plan B', Mr Beling said (at page 13 of his fourth response):

For the sake of completeness, Plan B of the Hannas' instructions was to be implemented in the event a large out-of-court settlement did not materialize. The Hannas instructed me to pursue a $750,000 damages award through the court system in the normal fashion. Mrs Hanna wanted a precedential judgment against ANZ, with the Court writing a strong ruling condemning the bank's predatory loan practices. Mr and Mrs Hanna wanted to use the judgement as a springboard to fame and fortune. They wanted to be become the public faces of Australia's recent bushfire and flood disasters and hit the media and talk show circuit, appearing on television shows such as Today Tonight, A Current Affair, 60 Minutes, and the news programs of the commercial and non-commercial television and radio channels.[65]

1. In the same document Mr Beling described Mrs Hanna's instructions going into the mediation as being in the following terms:

'We can offer figures down the track if we are in trouble but we won't accept anything less than $750,000, but only if ANZ offers this amount. You are not allowed to bring it up first. The case is going on for at least another year. We can cross that bridge when we get to it.' I advised them to consider a low figure, such as $200,000. Mrs Hanna refused.[66]

1. The gravamen of allegations 2 and 8 is that Mr Beling did not carry out an effective analysis of his clients' position, and so was not able to convey a sufficiently reasoned assessment to them of how realistic the various claims that might be made by them against the ANZ were. This meant in turn that he failed to moderate their unrealistic expectations.
2. The VLSC contended first that Mr Beling failed to advise his clients effectively that they could not possibly receive $5 million, or any sum above $750,000 in the FMC. It is clear the Hannas were aware that was the jurisdictional limit, but nevertheless held out hopes that a higher payment could come their way, presumably by way of a settlement offer. Mr Beling referred to Mr Hicks' evidence that extravagant settlement offers are sometimes put. The effect of the evidence was that while Mr Beling obviously did not procure instructions from his clients even to offer to accept $750,000 at the mediation, there was perhaps a tacit recognition by Mrs Hanna that anything above this would have been difficult to achieve.
3. The VLSC's case was more forcefully directed towards Mr Beling's alleged failure to properly analyse their case, and hence his failure to advise that on the basis of the information available, they had little prospect of achieving an outcome of anything like $750,000.
4. It also contended that Mr Beling's suggestion that he had given adequate advice orally, was not demonstrated by the evidence.
5. The VLSC correctly said:

When providing an advice on prospects, a practitioner is obliged to set out an assessment of the likelihood of being successful in court at the trial along with the associated risks and costs so that his clients are able to consider their position from an informed position.[67]

It behoved Mr Beling to provide the Hannas with a realistic assessment of their legal position, including: the strengths of the claims in the draft Statement of Claim having regard to any defences which might be raised; the applicable legal principles; the relevant facts and evidence which would support the claims against the ANZ bank, particularly claims involving fraud and dishonesty which are notoriously difficult to prove; and a realistic assessment of the risks and costs associated with running such a proceeding.[68]

Argument that the advice of strong prospects of success was conditional on obtaining additional documents

1. In relation to the statement in the 18 October 2012 email that the Hannas had strong prospects for success, Mr Beling in his submissions referred to the fact that this was premised on being able to get 'the FOS material' admitted into evidence. When referring to the FOS material, the document most commonly cited by Mr Beling was the printout (the 'telephone log') from the ANZ's electronic record of its employees' conversations with customers. The Hannas had obtained this at least for the period from December 2010 to November 2011. The entries in the log are all in upper case, and contain acronyms, coding characters, shorthand and abbreviated statements, apparently quickly typed by staff to record the effect of things communicated in telephone conversations with customers. It is clearly not a verbatim record, and is often ambiguous to the external reader.
2. Mr Beling suggested it would be difficult to have the telephone log accepted into evidence. The ANZ would vigorously oppose that on the basis it is a confidential business record, and is privileged.
3. It is not clear to me why the telephone log (and other documents from the ANZ) would not be required to be produced by way of discovery, if they were relevant to an issue raised in a properly pleaded claim. Nor is it apparent why this document being admitted into evidence would make such a significant difference to the Hannas' case. As noted, the ANZ had admitted in writing on 2 November 2011 that its employee had provided the Hannas with incorrect information by telephone on 27 April.
4. However, I accept that Mr Beling had conveyed to the Hannas that the difficulty in obtaining the FOS material might be an obstacle to their chances of achieving a substantial payment, and to that extent, this would have had some moderating effect on their expectations. Albeit that this appears to have been on a misguided basis.
5. Similarly, in relation to other documents sought by Mr Beling, it was not clear how they would support the serious allegations made, or how the failure to produce them itself comprised dishonest or illegal conduct.
6. For example, the draft Statement of Claim (at page 4) alleged that the ANZ's conduct in refusing to disclose a letter of 25 May 2011 to Mr Hanna

demonstrates a clear dishonest and corrupt intent to conceal evidence and shows a striking consciousness of guilt of the below-mentioned offences of action.'

1. That letter of 25 May 2011 was amongst the materials from Mr Beling's file which were produced to the Tribunal. It is a letter responding to concerns Mr Hanna had expressed to the FOS, and stating it is the ANZ's understanding that he was seeking time to pay his arrears. It went on to ask Mr Hanna to complete an attached Statement of Financial Position and return it to the bank. Asked in cross examination how it was that this assisted the claim he had drafted against the ANZ, Mr Beling's response was unsatisfactory. He said that since the letter contained no reference to the (non-existent) default notice of 21 April 2011, it was part of the ANZ's attempt to have the arrears paid without going through the formal default process.
2. When asked to identify what it was which indicated that the ANZ was concealing evidence, Mr Beling referred to ANZ's internal notes (presumably including the telephone log), its letters to the Hannas, the affidavit of 22 August 2012 by its officer Mr Bleakley, his client's' instructions, what he said was the Ombudsman's view that there were enforcement proceedings on foot, the Hannas' requests for loan statements, etc, ANZ's failure to produce documents to himself and the insistence by the ANZ's solicitors what they said was without prejudice material from the FOS investigation which had been exhibited to affidavits on behalf of the Hannas' should be placed in a sealed envelope in the court's file.
3. When put to the test, however, and asked to identify specific instances which gave rise to a reasonable basis for suspicion that the ANZ was dishonestly concealing evidence, Mr Beling was unable to do so. None of the documents he referred to in response to questions are in that category. The Hannas were apparently convinced that the ANZ had behaved dishonestly and illegally. Mr Beling accepted that this was the case too. But he could not point to any instances where the conduct of the ANZ, objectively considered, gave rise to a reasonable suspicion of dishonest or corrupt behaviour.
4. I note that the last two matters in paragraph [222] referred to by Mr Beling in support of this allegation (and others like it in the draft Statement of Claim) concern actions taken after he commenced to act. That is, ANZ's failure to produce documents to himself, and their solicitors' insistence on maintaining 'without prejudice' privilege. Self-evidently, these matters could not have been the basis for allegations such as that quoted above.
5. It does appear to be the case that the ANZ had been slow to produce the mortgage documents or loan documents. The Hannas' copies of these had apparently been lost in the bushfire. Some of these documents were produced on the eve of the 20 December 2012 directions hearing. And at that directions hearing, the remainder were ordered to be provided by 14 February 2013. But, as was discussed at the directions hearing on 20 December 2012, these documents, which referred to default, etc, procedures, are in standard form, in the nature of Memoranda of Common Provisions.
6. Mr Beling did not explain what it was that he sought from these documents, which would support his clients' case. He did indicate that he was looking for 'Amardio' type arguments. But he did not indicate that he had any basis for suspecting that Amardio type arguments might be able to be made; or that this line of enquiry by him was anything more than fishing.

Argument that there was other written material apart from the 18 October email, and oral communications, which did amount to adequate legal advice

1. First, Mr Beling submitted that the draft Statement of Claim itself comprised written legal advice to the Hannas. For the reasons stated above, this was not a coherent statement of any claim the Hannas might have had against the ANZ. Accordingly, that contention by Mr Beling does not support for the conclusion that adequate advice was given to the Hannas during the course of the retainer. It supports the contrary conclusion.
2. Second, in response to the request by the VLSC during its investigation to indicate what written advice he had given to the Hannas, Mr Beling referred to a number of emails he had sent to Mrs Hanna in September, October and November 2012. In May 2014, Mr Beling provided the VLSC with copies of the text of those emails. A number of these have already been quoted in the narrative of events above. They include statements that the ANZ is being 'evasive and deceptive' by not handing over documents to Mr Beling, that 'it's going our way, that they are scared and seeking advice from Senior Counsel', that 'we've got them on the ropes', that 'ANZ have produced some documents, but none of those documents which incriminate them' and in relation to whether allegations of breaches of the Crimes Act should be included, 'we'll go for it. The worst they can do is strike out.'
3. None of the emails referred to by Mr Beling comprise advice which explains how the Hannas' circumstances translate into a viable claim under in the draft Statement of Claim. Like other communications with the Hannas, they assume viable claims and go on to make optimistic generalised statements which would have the effect of raising clients' expectations. The factual and causal linkages to the various claims and loss set out in the draft Statement of Claim were not explained in a manner which demonstrated a coherent claim.
4. It is striking that in contrast to the hundreds of pages of responses, evidence and submissions drafted by Mr Beling in defence of his handling of this matter, there was no formal written advice from him to the Hannas. The closest Mr Beling comes to this is the brief email of 18 October 2012 quoted above. The emails between him and the Hannas are generally short. Neither the body of emails, nor the body of conference file notes contain adequate analysis of the key issues. Yet in the course of the investigation and this hearing, Mr Beling has drafted hundreds of close typed pages of responses, evidence and submissions in defence of his handling of the matter.
5. Mr Beling contended in the hearing that he provided oral advice prior to the mediation which provided a sufficient explanation for his advice that the Hannas had strong prospects of success.
6. But the effect of the evidence was that these oral statements did not fill the gap. Mr Beling was not able to explain during the course of his evidence to the Tribunal what the factual and causal linkages he relied upon were. When asked for details, he tended to revert to reciting the allegations themselves. It is clear the claims had a large element of speculation about them.
7. Mr Beling's evidence that he read out to the Hannas passages from some of the case reports or texts reinforces the conclusion that oral advice was not sufficient. I accept Mr Howell's evidence that this would have been of little use to his clients. What they needed was the analysis of how the applicable principles applied to their particular circumstances, and the strength or weakness of the argument that they do. This is the thing that was missing from Mr Beling's advice.
8. The VLSC accepted that sometimes it is enough for oral advice to be given. On other occasions, written advice is necessary. It is hard to see how oral advice could have been sufficient in the circumstances of this case.[69] In any event, Mr Beling was not able to demonstrate that he gave satisfactory oral advice.

1. I accept that Mr Beling raised the possibility of a $200,000 without prejudice settlement offer, or even settling for clearance of the arrears, prior to the mediation.[70] But it is clear he did not advise his clients to settle on either of those bases. The overall tenor of his advice was in the opposite direction. Mr Beling also discussed with them the issue of causation.[71] Prior to the mediation, however, the overall effect of the actions taken by Mr Beling was that his clients were not given the advice they needed. His belief then, which he still maintained in the hearing, and which is reflected in his emails to Mrs Hanna, is that '$750,000 was not unreasonable, especially in light of the fact that the ANZ had offered the Hannas $40,000 when they were unrepresented'[72]. In fact, Mr Beling's actions in discouraging settlement, continuing to support unrealistic expectations and in continuously asserting the strength of allegations which on an objective basis were highly questionable, worked to undermine his clients' understanding of their true case, rather than to enhance it.

Submission that a successful outcome was achieved

1. Finally, Mr Beling submitted that the legal advice he gave did in fact lead to the achievement of a 'successful outcome', as the expression was defined in the costs agreement, namely

'any judgement, financial settlement or award in the Hanna's favour greater than fifty thousand dollars (>$50,000)'.

He submitted that the fact that an order was made on 11 June 2013 implementing a settlement whereby the Hannas were to receive a net possible benefit of $52,717 demonstrated, by definition, that his legal advice was adequate.

1. I do not accept this contention for a number of reasons. First, Mr Beling ceased acting for the Hannas in January 2013. Thereafter, other solicitors acted, then the Hannas acted for themselves. So it is difficult for Mr Beling to claim that this outcome was achieved by him. Second, it appears the figure of $52,717 was only reached as a result of interest accruing on the debt over time - a figure in the vicinity of $40,000 was referred to as being owed at the time of the mediation in November 2012. Third, that settlement subsequently fell through. Fourth, the fact that Mr Beling selected the figure of $50,000 as a 'successful outcome' for the purposes of determining when he could charge fees in excess of $50,000, is not a strong argument to support the contention that that figure was one which Mr Beling and the Hannas regarded as a good result from the litigation. As noted, the Hannas sought $5 million, or failing that $750,000 at a minimum. Mr Beling said in the hearing he felt there was a good claim for $750,000. Even the figure of $200,000, which Mr Beling suggested to his clients for consideration later in the course of his retainer, is well above $50,000.

1. In relation to the adequacy of advice given to the Hannas about the strength of their case, Mr Hicks referred to the assertion by Mr Mahoney that the Hannas had a 'valid' claim for damages, and several file notes which stated that Mr Beling had provided a 'short summary of advice' (18 October 2012) and 'discussed the likelihood of success of proceeding' (18 November 2012).
2. These are not strong factors in Mr Beling's favour. Mr Mahoney did not carry out a comprehensive analysis of the strength of the Hannas' case, and the evidence of Mr Beling did not establish that the oral advice added anything of substance to the brief written advice provided.
3. Mr Hicks said:

If it is found that Mr Beling ought to have given more detailed and comprehensive legal advice to Mr and Mrs Hanna, it is not clear as to whether and to what extent (if at all) such advice would have been followed by them. The file itself reveals a fierce determination by Mr and Mrs Hanna (in particular, by Mrs Hanna) to proceed with what might be regarded as a campaign against the ANZ bank. It is unlikely that she would have been deterred.[73]

1. In my view, while she was clearly a difficult client to act for, the attitude of Mrs Hanna made it more important, not less, that she receive frank and objective advice as to the prospects of success.

1. The Hannas had very high expectations. In this context, it was particularly important for Mr Beling to give his clients realistic advice about the strengths and weaknesses of their claims.
2. Even more so, considering that the Hannas did not attend the mediation personally. Mr Beling explained that they wanted to attend the mediation. But he advised them it would be in their best interests to be excused. "He said (at page 10):

I advised them that would be in their best interests to be excused from the mediation. I advised them that this course of action would be good for their mental health and that it would also serve the tactical advantage of having an independent person present at the mediation to represent their interest without the possibility of ANZ attempting to bully or seduce them into an otherwise unreasonable settlement. I arranged for the Hannas to be excused from the mediation and the Hannas were happy about this, despite their initial desire to attend the mediation.[74]

1. The consequence of the Hannas not attending the mediation was that they would not have the benefit of 'reality testing' by the mediator of the 'nitty-gritty' of the strengths and weaknesses of their case. It would have been particularly useful in this case for the Hannas to have been present in private session with Mr Beling and the mediator, when hard questions could be faced as to how realistic their claims really were. It is unfortunate that Mr Beling arranged for the Hannas not to attend and so they did not have this opportunity, and so to that extent they were isolated from receiving any input about the strength of their case, other than from Mr Beling.

Finding on allegations 2 and 8 relating to adequacy of advice

1. The lack of meaningful written advice to the Hannas, (or even a draft summary by Mr Beling for his own purposes) with at least some analysis of what the best aspects of the claim were, how they would be proved, the strengths and weaknesses of the Hannas' position, and considering the major likely defences, is indicative of the muddle which the case was. The effect of Mr Hicks' evidence was to accept that provision of proper written advice would have been prudent.
2. In my view it is clear that on its own, the email of 18 October 2012 did not comprise adequate written advice on prospects of success at trial. The simple statement that the Hannas have strong prospects of success manifestly failed to satisfy the obligations set out in paragraph 58(a) - (f) above. And, for the reasons expressed above, this inadequacy was not made up for by other written or oral communications to his clients. Further, when requested during this hearing to provide specific explanations as to the basis for allegations made, especially allegations of dishonesty, Mr Beling was unable to articulate a coherent basis for those claims.
3. The advice Mr Beling was obliged to give did not have to be exhaustive. It did not have to demonstrate that the claims were irrefutable. But it did have to refer to the major components of the case in terms of fact and law, on the material to hand, even if only in summary terms, including the risks the Hannas faced. Despite all the work he did, Mr Beling did not do the most important thing. He did not step back and do an adequate objective analysis as to whether there was a realistic basis in fact and law for the claims made against the ANZ.
4. Accordingly, I find that allegation 2, and that part of allegation 8 which relates to matters aside from costs, are proved.

Allegation 3 - adequacy of costs disclosure (including allegation 8 in part)

1. Paragraph 59 of the VLSC's application for order states:
   1. The above estimate on costs evaluation for mediation purposes was not adequate as it did not include:

(a) the costs of disbursements, including any costs of a barrister or medical reports or assessments in the costs contained in his estimate;

(b) the current actual costs of the respondent contained in the lump sum bills referred to at paragraph 25 above and the itemised bill referred to at paragraph 27 above;

(c) an estimate of the party-party costs of the ANZ bank in addition to the full $50,000 of the respondent's costs pursuant to the Conditional Costs Agreement when making the statement: 'if you lose the case, the estimated amount you are likely to be out of pocket is approximately $26,316';

(d) an estimate of the costs the Hannas would be out of pocket even if they won the case (as required by the Notice referred to in paragraph 20 above).

1. The 'above estimate' referred to in paragraph 59 of the Application is the 3 November 2012 costs evaluation, including the table, set out under allegation 2 above. Although this was not raised by either party, in its terms, allegation 3 is in fact confined to the adequacy of Mr Beling's response to the particular matters raised by the FMC Registrar's letter of 12 October 2012. In particular, I note that, read literally, the part of the Registrar's letter relating to costs (being sub-paragraph (c) quoted at paragraph [104] above) only referred to costs incurred by the Hannas' own solicitor, and did not explicitly refer to the risk of having to pay costs of the opposing party, and an estimate of what those costs might be.
2. Once again, however, to the extent allegation 3 is so confined, allegation 8 does cover this matter. (Allegation 8 contends that Mr Beling did not provide adequate legal advice to the Hannas explaining the issues in the case, and their rights and obligations in respect of the proceeding.) Hence once again, it is appropriate for the analysis of this allegation to be done together with allegation 8.
3. These allegations invoke Mr Beling's obligation of ongoing disclosure under s 3.4.16 of the Act, which Mr Beling accepted applied to him. This provides:

A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under this Division as soon as is reasonably practicable after the law practice becomes aware of that change.

1. Neither allegation 3 nor allegation 8 alleges in terms that the costs disclosure given initially by Mr Beling (on 29 August 2012) was inadequate. During the hearing, Ms Anderson for the VLSC accepted that the allegations against Mr Beling did not include inadequacy of his initial costs disclosure.

Allegation in paragraph 59(a) of the Application - disbursements

1. Paragraph 59(a) of the Application relates to disbursements. Neither the initial costs disclosure nor (more relevantly) the 3 November 2012 update contained an estimate of the amount of disbursements the Hannas would be likely to incur in conducting their matter, in particular barristers' fees and medical reports.[75] Mr Beling pointed to the standard clauses in the disclosure statement which indicated that the client would be required to pay disbursements, including filing fees and barrister's and expert's fees. In addition clause 4 of the conditional costs agreement stated that these disbursements are to be paid by the Hannas irrespective of the outcome of the matter.
2. But neither the table, nor the narrative in Mr Beling's letter of 3 November 2012 contained an estimate as to what the amount of these fees might be. Mr Beling said his clients were well aware that they would have to pay these fees. He pointed to communications about the need for the Hannas to pay the psychologist, Mr Gary Stockton direct, and also to pay counsel's fees when this was contemplated around the end of November 2012.
3. The file note of the conference conducted in the Broadmeadows library on 25 August 2012, Mr Beling includes the following:

Will advise as to costs and seek your approval[76]

1. In his oral evidence, Mr Beling contended that counsel's fees, as a proportion of the overall costs, would be a small amount. He said that it was possible that different interlocutory questions such as defending a strike out application and argument about the admissibility of the bank's documents could be dealt with in the one hearing, which would save costs.
2. However, even if Mr Beling did anticipate that counsel's fees would be relatively low, that is not reason for not providing a proper estimate of what they would be. Simply telling his clients that particular barristers' fees ranged between $400 and $7000, is not sufficient. In any event, these are not necessarily small amounts. It was unrealistic for Mr Beling to assume that counsel's fees would be a comparatively small amount of the overall costs incurred by the Hannas. In this regard, Mr Beling said in evidence that he did intend to brief counsel to appear if the matter went to a contested hearing - which he said could have run for five days.
3. It is clear Mr Beling did not provide an estimate of the total amount of the major disbursements that would be incurred, or a range. I accept that the Hannas were given some information relevant to the amount of barristers fees which might ultimately be incurred. But not nearly sufficient to enable them to make strategic judgements about the conduct of their case.
4. The allegation in paragraph 59(a) has been proved.

Allegation in paragraph 59(b) of the Application - costs already incurred

1. In relation to the estimate of costs incurred to date (3 November 2012) of $20,000 - $25,000, Mr Beling was asked why he could not have provided a precise figure, given that he was billing on a time basis. He acknowledged there was no reason why he could not have provided a precise figure, although he did note that the FMC registrar had only requested that he provide his client with an estimate. In my view, it would have been preferable to provide the client with the precise information, given that it was available, rather than a range which could be up to $5,000 out. This allegation is proved, however it is of little significance compared to the other matters concerning costs disclosure.

Allegation in paragraph 59(c) of the Application - risk of having to pay the ANZ's costs

1. The thrust of this allegation is that the Hannas were not given a proper estimate of the quantum of the ANZ's costs which they would be liable to pay if they lost the case. The position is complicated by the way in which Mr Beling expressed the costs estimate in his letter of 3 November 2012, and his reference to the figure of $26,316 as the estimated amount the Hannas would be out of pocket if they lost their case.
2. That figure of $26,316 is the difference between $50,000 (which is the cap on Mr Beling's fees, unless more than $50,000 was obtained) and the figure of $23,684 which Mr Beling estimated the Hannas would receive on a party party taxation (even if they won the case). That is, the $26,319 represented the unrecoverable solicitor-client costs for Mr Beling's services. It appears Mr Beling was indicating that if the case was run to a contested hearing, and the Hannas lost, they would have to pay him $50,000 which is $26,316 more than if they won it (with costs) - and so received $23,684 from the ANZ.
3. In my view, this way of expressing the position was apt to create confusion, and to distract from the most important component of advice concerning the amount the Hannas would be out of pocket if they lost, that is, the quantum of their potential costs liability to the ANZ.
4. The 3 November 2012 costs evaluation did not make any reference to the costs the Hannas might have to pay to the ANZ if they lost the case. This was a significant omission. Mr Beling pointed to the statement at paragraph 6 of the 29 August 2012 costs agreement as follows:

The range of possible costs judgments against you range from $0 - $100,000 (this is money you may have to pay).

1. That estimate does stand. However, the fact that it was not alluded to at all in his 3 November 2012 costs evaluation was at the least confusing, and at worst, could have led to that potential costs liability being overlooked. Or to that evaluation implying that the total potential liability was only $26,315. The statement made in the costs evaluation was:

Therefore if you lose the case, the estimated amount you are likely to be out of pocket is approximately $26,315.

1. This estimate of $26,313 as the amount the Hannas were likely to be out of pocket if they lost the case was significantly understated. Had the Hannas' case run as, say, a five day trial, had they lost and been ordered to pay the ANZ's costs, their liability would clearly have been much greater than that.
2. Also, the effect of this omission was amplified by this costs evaluation being given in the context of the 18 October 2012 advice that the Hannas had 'strong prospects for success'.
3. However, Mr Beling said that he advised the Hannas on numerous occasions orally leading up to the mediation that they would be liable to pay ANZ's costs of $100,000 if they lost the case. He referred to particular documents in support of that contention. Those documents do not support that contention. Nevertheless, given the Hannas did not give evidence, I am not prepared to find against Mr Beling's evidence that he gave the frequent oral warnings to the Hannas about the risk of paying the ANZ's costs which he said he did. [77]
4. I also note that (although its meaning is not entirely clear) in an email of 22 December 2012 Mr Beling said to Mrs Hanna:

If we do well on this one [the FMC case] then you could get a large settlement or judgement. If we do poorly, you may have to pay a lot of money.[78]

1. Mr Beling gave evidence that Mrs Hanna had made it clear to him that even if he had advised her and Mr Hanna at the time of the mediation that they would be liable for $100,000 or even $500,000 in the event they lost the case, it would not have deterred them. He said Mrs Hanna instructed him on many occasions that somebody had to take a stand against the banks and that she and Mr Hanna were the ones to do it. He referred to Mrs Hanna's proposed book, Banks and Money, and the Hannas' desire to become media celebrities for taking on the banks and winning. He said he attempted to manage the Hannas' expectations and reality-check them regarding costs exposure, to no avail. They were 'immune to reason.'
2. In my view, this made it more important, not less, for Mr Beling to confirm in writing the extent to which the Hannas faced a risk of being further out of pocket as a result of losing their case.
3. In this regard, I note that there is a difference between the initial estimate of '$0 -$100,000' which was given in writing, and the oral statements Mr Beling said he made to Mrs Hanna that they 'would be liable to pay ANZ's costs of $100,000'. That is, the estimate has changed from a range beginning at zero, to a single figure of $100,000. One would expect that after more than two months of intense involvement, Mr Beling would have come up with a more precise and reasoned figure than simply the top of the range which he had given at the outset, when he necessarily had much less knowledge about the likely extent of this potential costs liability.
4. In summary, the position is that Mr Beling did include in his initial costs disclosure to the Hannas, a statement that the possible range of costs judgements against them was $0 - $100,000. Two months later, his written statement to his clients as to their potential costs liability was confusing, and potentially misleading. This is not in accordance with his ongoing obligation to give written costs disclosure, under s 3.4 16 of the Act.
5. This allegation is proved, although the impact in practice of Mr Beling's failure to clarify the position as far as potential costs liability to the ANZ was concerned, was in practice somewhat ameliorated by his oral warnings to the Hannas.

Allegation in paragraph 59(d) of the Application - out-of-pocket costs, even if successful

1. The VLSC alleges that the 3 November 2012 costs evaluation was also deficient in that it did not include an estimate of the costs the Hannas would be out of pocket even if they won the case. In this regard, the failure to provide an estimate where fees were payable above $50,000, and also where the 25% uplift applied is relevant were payable, is relevant. In those instances, the fees payable for Mr Beling's services would have exceeded the $50,000 cap.
2. Clause 3 of the costs agreement said:

Apart from the first $50,000, Mr Beling will not seek his remaining legal costs unless the Hannas receive a settlement or award greater than $50,000. If the Hannas receive a settlement or award greater than $50,000, then Mr Beling is entitled to be paid his remaining costs from the Hannas' settlement or award money.

Uplift fees under section 3.4.28 of the Legal Profession Act 2004 of 25% of the legal costs incurred apply to this case if you receive a settlement or award greater than $200,000. Under s.3.4.14 of the Act, this means that the Hannas will have to pay Mr Beling twenty-five (25) percent of the legal costs extra to Mr Belling, in addition to his legal costs, if they receive a settlement or award greater than $200,000. Mr Belling usually charges $350 per hour and between $1000 and $2500 per day in court/tribunal, depending on the complexity of the matter. The reasons for the uplift fee are that: ANZ is a major Australian bank with immense resources; the matter is defended by the Respondent; the Respondent is represented by a highly skilled law firm; there may be subpoenas to be prepared and served if ANZ does not cooperate; there are relevant issues pertaining to possible offences committed by the Respondent against the Corporations Act; current pleadings will need to be refiled.

1. Take by way of illustration, the example utilised in cross-examination: If the case ran through to a contested hearing, Mr Beling estimated this would take 18 months - 2 years. Given that solicitor's costs of over $50,000 had been incurred during the four and a half months Mr Beling acted, then a figure of $200,000 for solicitor's costs was quite conceivable. Mr Beling confirmed that his view was, and remains now, that the Hannas had strong prospects of being successful in their claim against the ANZ, and receiving an award of the jurisdictional maximum of $750,000. Assuming the Hannas did achieve that outcome, or anything in excess of $200,000, in accordance with Mr Beling's assessment of the strength of their case, then he would receive fees of $200,000 plus a 25% uplift ($50,000). So the total fees would be $250,000.
2. Yet the 3 November 2012 costs evaluation simply stated that the further costs the Hannas were likely to incur in preparing for and running the trial were approximately $25,000 - $30,000. In his evidence, Mr Beling acknowledged that in hindsight in the 18 October 2012 costs evaluation the estimate including fees above $50,000 and the 25% uplift should have been included. But he said that the fact that they would be charged those fees was obvious to the Hannas from the costs agreement. In regard to the 25% uplift, it is clear that Ms Hanna was aware of this (from her email of 3 January 2013).

1. However, the fact remains that the updated costs assessment of 3 November 2012 simply stated:

Further costs likely to be incurred by you in preparing for and running the trial are between $25,000 - $30,000 (by virtue of our agreed ceiling in the Conditional Costs Agreement of $50,000).

1. Given that this is an update of the written costs disclosure initially given, it is potentially misleading for those figures of $25,000 - $30,000 to be referred to, but for the much higher fees which would be applicable in the scenario which Mr Beling regarded as likely not to be mentioned.
2. To that extent, the costs disclosure given was misleading, and so the allegation at paragraph 59(d) of the Application is satisfied.
3. Nevertheless it is clear from her email of 3 January 2013 that Mrs Hanna was aware of the 25% uplift.

1. In summary, the three most important obligations Mr Beling had in terms of costs disclosure were providing an estimate of disbursements to be incurred, advising as to the risk of having to pay the ANZ's costs and providing information about the amount of his costs his clients would have to pay for his services. Mr Beling provided little information in relation to the first. In relation to the second and third, the information provided was apt to confuse.
2. Accordingly, allegation 3, and that part of allegation 8 which relates to costs, is also proved. As described however, on the evidence of Mr Beling, I accept Mrs Hanna was reminded orally of the danger of having to pay 'the ANZ's costs of $100,000'. It is also apparent she was aware of the 25% uplift.

Allegation 4 - acceptance of wrong, unwise and inappropriate instructions

1. For the reasons set out below, I find this allegation not proved.
2. Paragraph 60 of the application for order states:
   1. The respondent also states in his initial response that 'Mrs Hanna would often second guess my advice and suggest avenues for research and investigation or legal tactics which were clearly wrong, unwise and inappropriate.' However, the respondent's admitted conduct in dealing with Mrs Hanna was inadequate and inappropriate in the circumstances.

The respondent's admitted conduct in dealing with Mrs Hanna was inappropriate as he states in the initial response that: 'I found it easier to accommodate Mrs Hanna than advise her that she was wrong.'

1. This allegation specifically relates to Mr Beling's 'admitted conduct' in 'accommodat[ing]' Mrs Hanna rather than advising her that she was wrong.
2. Mr Beling submitted that the scope of this allegation was narrow. This is because he said the scope of his 'admitted conduct' was narrow. He said it was largely limited to certain research he conducted on her instructions. For the following reasons, I accept this submission by Mr Beling.
3. The statements relied on by the VLSC in paragraph 60 were made by Mr Beling in his First Response to the VLSC of 11 April 2013, in the seventh point appearing under the heading '1(b) Why it took me in excess of 19 hours to draft a Statement of Claim'. That seventh point relevantly stated:
   1. Mrs Hanna's domineering and officious style of providing instructions. Mrs Hanna claimed to be an expert in credit law and debt recovery, and that she often provided legal advice to people in her community. Mrs Hanna would often second guess my advice and suggest avenues for research and investigation (such as bankruptcy law and human rights law) or legal tactics which were clearly wrong, unwise and inappropriate. I had to investigate each and every one of these instructions to appease Mrs Hanna. She is a high-maintenance client and a prolific emailer, who would email me regularly to convey every single thought which passed through her mind both concerning the matter and often in relation to irrelevant issues such as selling nails, her and Mr Hanna's state of health, and her movements for the week. I found it easier to accommodate Mrs Hanna than advise her that she was wrong.[79] ...
4. In his evidence, Mr Beling said this paragraph only related to research he did, and 'hearing Mrs Hanna out'. Mr Beling said that almost five hours of the research he did (which was 27.5 hours in total) was 'expressly requested by Mrs Hanna in her written instructions and was in my professional opinion unrelated to drafting the Statement of Claim'. He said he followed Mrs Hanna's instructions 'to the letter'.[80] He said his admission that he found it easier to accommodate Mrs Hanna than to advise her she was wrong, did not extend to including particular matters in the draft Statement of Claim.
5. In my view, a fair reading of the above passage relied on by the VLSC is that the statement by Mr Beling admitting that he found it easier to accommodate Mrs Hanna than to advise her she was wrong (which is how the allegation in paragraph 60 was particularised in the allegation) is in fact confined to five hours of the research done by him, and 'hearing her out' in conferences.
6. Of course a solicitor is justified up to a point in undertaking research which a client insists upon, even after the solicitor has explained to the client that it is not necessary or worthwhile to expend the client's funds on such inquiries.
7. In relation to discussions during conferences, Mr Beling said that after the first four or five times advising that a proposed course of action was clearly wrong, unwise or inappropriate, he simply let her 'vent' in order to avoid unnecessarily prolonging the conversation. The client would be properly charged for the additional time this would take in conference.
8. It appears that in drafting this allegation, the VLSC intended to invoke the more general point that Mr Beling was far too ready to adopt wrong, unwise and inappropriate instructions, resulting in counter-productive interactions with the ANZ in the litigation, and unnecessary expenditure his clients' funds. I agree with that proposition, and this conclusion is relevant to the other allegations.
9. However, on a proper reading, that is not what this allegation relates to. It is in fact confined to only a small portion of Mr Beling's conduct, which he admitted, concerning five hours of the research he did, and 'hearing Mrs Hanna out'.
10. Accordingly, I find allegation four not proved.

1. Paragraph 61 of the VLSC's application states:
   1. Further, the respondent's file for the proceeding received by the Commissioner as referred to in paragraph 31 above, does not contain a record of the appropriate care and conduct of the proceeding.

(a) to contain an appropriate record of legal work undertaken and performed by the respondent, including any analysis of the law and material facts;

(b) to contain any forensic analysis of the instructions and materials provided by the Hannas;

(c) to record that the respondent took proper steps to assist the Hannas to understand the issues in the case by providing legal advice in respect of the proceedings;

(d) to record any or any adequate legal advice provided by the respondent to the Hannas;

(e) to record that the respondent provided legal advice to the Hannas sufficient to permit the Hannas to give proper instructions particularly in connection with the mediation;

(f) to contain an appropriate record of legal work performed by the respondent in accordance with good practice in solicitor's offices to ensure the continuing professional care and conduct of the matter;

(g) to contain a record of any testing of instructions by independent inquiry before making serious allegations including that: the ANZ bank had fabricated evidence, falsified credit books and engaged in fraud as set out in the draft Statement of Claim for Mediation purposes only referred to in paragraph 55 above;

(h) a record of instructions from the Hannas and supporting documents sufficient to substantiate the legal claims in the draft Statement of Claim for Mediation purposes only referred to in paragraph 55 above.

1. Mr Beling contended that the failure of the VLSC, in effect to explain the apparent differences between the precise composition of his file (or copies of it) at various points of the investigation, (in the context of it being passed back and forth between him and the VLSC) undermined its case. However, as stated above, I do not regard any such differences as being significant in terms of the issues I have to decide. As noted, I have had regard to documents put before the Tribunal, including documents identified by Mr Beling is having been 'removed'. The documents relating to the key questions for determination are not in dispute as to their authenticity. The Tribunal is not bound by the rules of evidence. Any discrepancies are peripheral.
2. In my view, Mr Beling's file was inadequate in ways which reflect the inadequacies referred to in the other allegations, in particular those concerning his care and conduct of the Hannas' matter, and the lack of adequate advice given to them.
3. Mr Howell referred to this, and also to other matters, such as the disorganised state of the file, that it contained much duplication, much irrelevant material, and was not in chronological order. I agree this would have made the file difficult and inefficient to work with, difficult for another practitioner to understand if called upon to take over the matter from Mr Beling, and difficult to cost. Nevertheless, I accept what Mr Hicks said about these matters, namely, that these kinds of vices are often seen on solicitors' files, and everyone has their own style of working. I am not so concerned about these matters in the present context - where serious disciplinary claims are being made against a practitioner.
4. The gravamen of the VLSC's claim here is that while there is a large volume of material on the file, there is no advice to his clients (or even his own file notes) which actually analyse whether there is a proper basis for the key aspects of the case being pursued by the Hannas. In particular, the claims of fraud, dishonest concealment, falsification of credit books fabrication of evidence, misrepresentation and unconscionable conduct.
5. In relation to the large number of printouts of reported decisions and other research material on the file, there is no synthesised analysis apparent of how these relate to the Hannas' case. On 12 September 2012, Mr Beling emailed to Mrs Hanna a list of approximately 96 documents (91 cases and 5 pieces of legislation). It appears he requested that she provide these to him in hardcopy form, and that she did.
6. The case reports and extracts from textbooks and looseleaf services from Mr Beling's file produced to the Tribunal amount to approximately 700 pages. They bear annotations by Mr Beling, and a small number which appear to be by Mrs Hanna. (Her handwriting is distinctly different from Mr Beling's.) The extracts generally have a few words at the top of the front page indicating the relevant topic of the extract, for example: 'Relevant to discovery issues', 'Undue influence/unconscionability', 'Enforcement of arrears/action for possession', 'Default notice- service', 'Hardship', 'Unconscionable conduct/special disadvantage', 'Economic duress', 'Default notice', 'Substituted service', 'Unconscionability'. Most extracts have highlighting or underlining of some pages. There are occasional annotations throughout the extracts such as 'Arguments to use', 'imp' [important], 'Causation as to loss e.g. inability to build house in Flowerdale', 'Offer of deed of refinance', and 'Non-service of default notices'.
7. It is apparent the extracts have been read in some detail. Considering these extracts, the draft Statement of Claim and the other evidence given, the impression is left that is that Mr Beling conducted a broad ranging search, to some extent prompted by Mrs Hanna, for authorities which might support lines of argument which they hoped might be able to be made against the ANZ.
8. In principle, this is reasonable. But in the context of the file and the evidence overall, it demonstrates a lack of judgement as to how scarce resources of time and money should be directed on his clients' behalf. Too much of the time spent by Mr Beling was, in effect, devoted to educating himself about topics which could not realistically be pursued against the ANZ. I have found above that the draft Statement of Claim did not adequately link the numerous serious allegations to be made against the ANZ with events which actually occurred, nor demonstrated causation, or loss. Mr Beling's file does not provide the missing analysis. I do not accept Mr Beling's contention that the brief annotations he made on the printouts of cases and texts comprise such analysis. This is consistent with the other evidence which indicates that such analysis was not done.
9. I am satisfied that particulars(a) - (e) and (g) - (h) of paragraph 61 of the Application are satisfied in this regard. These refer to the lack of analysis of the law and material facts, lack of forensic analysis of instructions and materials provided by the Hannas, lack of proper steps to assist them to understand the issues, lack of a record of adequate legal advice provided to them, particularly in connection with the mediation, lack of a record of testing instructions by independent enquiry before making serious allegations, and a lack of supporting documents sufficient to substantiate the claims made, and proposed to be filed.
10. In relation to particular (f) of paragraph 61, it is not clear how this was put. To the extent that it is alleging that the hours of work done by Mr Beling were not recorded, or that information about time spent was not provided to his clients, I do not accept it. The itemised bill dated 13 February 2013 provides a breakdown of time spent each day on the categories of legal research, conferences, emails, preparation of draft statement of claim, etc. (Although I note it does not indicate precisely what legal research was being conducted in relation to each of the nine major 'research' time entries recorded between 17 September and 3 October 2012 - which together amount to 27 hours, 20 minutes.) Also, there is no itemised account for work done from the commencement of the retainer on 24 August 2012, up to and including 16 September 2012 - for which $9,850 was paid. (It appears no request was made by the Hannas for an itemised bill covering that earlier period.)
11. Thus, to the extent that particular (f) of paragraph 61 relates to the matters referred to in the above paragraph, I do not accept it. To the extent it relates to matters in (a)-(e) and (g)-(h) of paragraph, it does not add anything to the extensive particulars they set out.
12. Allegation 5 is proved.

Allegation 6 - the non-provision of written advice to Mr Hanna

1. Paragraph 62 of the VLSC's application states:
   1. The respondent did not provide any or adequate legal advice in writing to the Hannas during the period of 24 August 2012 and 30 January 2013 when the respondent was engaged to act for the Hannas, despite the fact that the respondent had been told that Peter Hanna was legally deaf.
2. In his evidence, Mr Beling admitted that in hindsight, he could have added more detailed particulars of legal advice which he said he provided to the Hannas in oral form. This would include more reference to the application of the applicable legal principles to the facts.
3. However, Mr Beling also stated he was still now unsure whether it would have been preferable to provide his advice in written form. Ultimately, the effect of the evidence was that the only advice 'formally' given in written form was his email of 18 October 2012. This was given in response to the letter from the Registrar of the FMC requesting that he said he should do so prior to mediation. This was the advice that the Hannas had 'strong prospects for success'.
4. Additionally, Mr Beling said that the draft Statement of Claim itself comprised a form of advice to the Hannas. An earlier draft had been sent to Mrs Hanna, and she had provided feedback, which he considered, prior to dispatching the draft to the ANZ on 9 November 2012. Aside from these documents, and the emails to Mrs Hanna, Mr Beling's advice to his clients was given in oral form.
5. In giving his evidence to the Tribunal, Mr Beling said the reason why he still had concerns as to whether it would have been better to give advice in written form was that he was worried Mrs Hanna would misinterpret documents he provided when speaking with Mr Hanna, who was not capable of reading them. He was concerned that she would do this in order to procure his agreement to push ahead with the litigation, and to obtain a precedential ruling, as part of the public campaign she was running, and to put on her website.
6. The VLSC contended that these concerns about Mrs Hanna suborning Mr Hanna were not, however, referred to in any significant way in Mr Beling's voluminous responses to the VLSC prior to receipt of Mr Howell's expert report, which raised these issues, in August 2016.
7. In his evidence and submissions, Mr Beling pointed out that he had got to know the Hannas quite well over the five months he acted for them, given that there were a number of conferences, numerous communications, and a lot of time devoted by him to the Hannas' matter. He also said Mr Hanna was comparatively coherent in 2012 (compared to the way he is now) and that he had been mindful of giving Mr Hanna an opportunity to speak without being interrupted by Mrs Hanna.
8. In my view, Mr Beling's rationale for not providing the bulk of his advice in written form is misguided. Even if Mrs Hanna was manipulative in the way he described, this is not a reason for refraining from putting advice in written form. Quite the contrary. Written advice would reinforce advice given orally. Advice written in concise and simple language (which is desirable for all clients) of course serves to draw the recipient back to the key points being conveyed in conference, overcoming the distorting effects of human memory of what was said. The simpler and clearer the written advice was the more likely it would be to serve to overcome the effects of any 'manipulation' by Mrs Hanna. Further, Mrs Hanna was also his client. She was not said to suffer from the disadvantages which Mr Hanna did. She was entitled to receive advice in the most precise, accurate and lasting form, that is, in writing.
9. If Mr Beling truly felt there was a potential conflict of interest between his two clients, the appropriate response would have been to discuss this potential conflict with them, and to consider whether he should continue to act for them both, rather than to restrict the advice he gave on the important and complex matters involved to verbal form.
10. I do not, however, find that Mr Beling's failure to provide written advice was deficient on the basis that Mr Hanna was 'legally deaf'. It was the evidence of Mr Beling that as long as there was not too much background noise, and he spoke clearly, slowly and directly, Mr Hanna was able to hear. I accept that evidence. It was consistent with my own experience of communicating with Mr Hanna on several occasions during the course of the Tribunal hearing.
11. However, for the reasons given above, I find this allegation proved, in that Mr Beling did not provide adequate written advice to his client, as was required, considering the importance and complexity of the matters involved.

Allegation 7 - Mr Beling's statement that his advice was limited to that given prior to the signing of the costs agreement on 29 August 2012

1. Paragraphs 63 to 66 of the VLSC's application are as follows:
   1. By letter dated 31 March 2014 (Annexure 9) the respondent was inter alia asked by the Commissioner: 'What advice did you provide to the complainant and her husband in relation to their proceedings in the Federal Magistrates' Court and when was such advice provided (please provide copies of any written advice provided)?'
   2. In the third response (Annexure 10), in answer to the Commissioner's request referred to above, the respondent purported to set out all the advice he provided to the Hannas.
   3. The third response set out the oral advice he purportedly provided to the Hannas which was stated to be solely comprised of advice given 'before they signed the costs agreement' on 29 August 2012.
   4. The third response by the respondent also stated:

'Mr and Mrs Hanna happily accepted the above advice, which was given to them before they signed the Costs Agreement. The Hannas also happily accepted my written advice prior to the mediation... The Commissioner has all copies of written advice provided.'

1. This allegation arises from a sloppily drafted response by Mr Beling of 22 April 2014 to the VLSC's letter of 31 March 2014. Having received the First Response on 11 April 2013 and the Second Response 16 January 2014, the VLSC asked directly what advice the Hannas had been provided with, and when.
2. Mr Beling's Third Response of 22 April 2014 responded to that question by listing 19 things the Hannas were advised about 'before they signed the costs agreement'. This had been signed on 29 August 2012. After listing those points, Mr Beling again stated that this advice was given to the Hannas before they signed the costs agreement.
3. Mr Beling's response contains the clear implication that the only advice he gave was prior to 29 August 2012. The 19 points listed include the substantial basis of the Hannas' case, as conducted by Mr Beling during the entire course of the retainer.
4. Nevertheless, it is clear from Mr Beling's file that oral and written advice was given subsequent to 29 August 2012. To take two obvious examples: Mr Beling's email of 18 October 2012 to Mrs Hanna saying 'I advise that you and Peter have strong prospects for success in the event that the FOS material from ANZ is admitted into evidence'. And on 9 November 2012 Mr Beling said in an email to Mrs Hanna 'don't settle'.
5. In these circumstances, it is not appropriate to make a 'finding' on this allegation.
6. This allegation does, however, draw attention to Mr Beling's dogged adherence to the case concept he had identified within the first few days of being contacted by Mrs Hanna. Over the subsequent months, costs mounted, without Mr Beling paying sufficient regard to his clients' interests in obtaining a pragmatic strategic assessment of their chances of success, bearing in mind the costs and benefits of continuing to rely on the initial conception of a strong case against the ANZ.

Allegation 8 - adequacy of Mr Beling's explanation of issues, and of the Hannas' rights/obligations

1. Paragraph 67 of the VLSC's application states:
   1. During the period 24 August 2012 to January 2013 when the respondent was engaged to provide legal services to the Hannas, he did not provide adequate legal advice to the Hannas explaining the issues in the case (including those of fact and law) and the Hannas' rights and obligations in respect of the proceeding.
2. The inadequacies in the advice Mr Beling gave to the Hannas have been analysed in detail, in the treatment of the other allegations in this decision (in particular, allegations 2 and 3).

1. Paragraph 68 of the VLSC's application states:
   1. Despite the above and notwithstanding the cap in the conditional costs agreement referred to in paragraph 16 above, the respondent has billed the Hannas in excess of $50,000 for his legal services in respect of the proceeding as referred to in paragraphs 25 and 27 above.
2. In the context of the other eight allegations, which are directed towards the inadequacy of the legal services provided by Mr Beling, allegation 9 focuses on the amount of fees charged by him for those inadequate legal services. The effect of allegation 9 is to allege that the service provided by Mr Beling to his clients was deficient in another way - in that the fees charged were substantially out of proportion with the value received by his clients.
3. The Tribunal is not engaged in a costing exercise here. It is not concerned to examine individual items charged, so as to determine whether they should be allowed or not. Rather, it is to consider in a more holistic way, whether what Mr Beling charged was so disproportionate in terms of the value received by his clients for the work he actually did, as to be a matter of concern from a disciplinary perspective.
4. This allegation only applies to one of the four charges - charge 1.

1. In a letter of 26 October 2016 to Mr Beling, the VLSC confirmed that this does not comprise an allegation of 'overcharging'. That is, it is not alleged that Mr Beling charged for time he did not spend, or charged a higher rate than had been agreed with his clients. Nor does it allege that he has sought payment in excess of the provisional $50,000 cap (plus GST) agreed with the Hannas.
2. What the VLSC does allege, however, is that in all the circumstances, the services provided by Mr Beling fell significantly short of something which would represent value for money for the Hannas. In particular, in the light of the outcome the Hannas were realistically likely to achieve from the litigation, the amount of time expended on legal research and drafting the Statement of Claim, and time spent as a consequence of his unrealistic conception of their claim, was disproportionately high.

1. Mr Beling read dozens of cases and conducted broad-ranging legal research about possible causes of action against the ANZ. In my view, most of this was so speculative that it very largely served the purpose of educating Mr Beling, rather than assisting in realistically progressing the clients' case.
2. Mr Beling accepted that he spent 27.5 hours on legal research, and 19 hours preparing the draft Statement of Claim. He charged at the rate of $350 per hour plus GST, that is, the clients were billed at the rate of $385 per hour. He said that almost five hours of the research he did was not necessary for the purpose of the case, and was done on Mrs Hanna's specific instructions. That leaves 22.5 hours of legal research, which comes to $8,662.50 (inc GST). The 19 hours drawing the draft Statement of Claim comes to $7,315.00. The 41.5 hours for research and drafting (excluding the additional five hours instructed by Mrs Hanna) amounts to $15,977.50. This is in addition to the $9,850 paid for services provided from 24 August - 16 September 2012. (That amounts to 25.5 hours. According to Mr Beling's file, this included at least eight hours of conferences, and at least 12 hours of reading, summarising and the like.)
3. It is clear that the Hannas were challenging clients to act for. Time, and therefore money, was no doubt taken up by Mrs Hanna's very active involvement in the legal case, and her misguided insistence on pursuing claims and tactics which were legally and ethically flawed.
4. Mr Beling was out of his depth, both in terms of the legal subject matter, and in terms of handling these particular clients. He had no experience with this type of claim. He is a sole practitioner, who conducts his business from his home. He is to that extent isolated from other professional colleagues with whom he might be able to discuss challenging issues, such as those which clearly arose in the conduct of the retainer for the Hannas.
5. In broad terms the major events which occurred concerning the Hannas' matter during the course of Mr Beling's retainer were that Mr Beling represented the Hannas at the 7 September 2012 directions hearing, he sought copies of documents from the ANZ's solicitors, drew the draft Statement of Claim, attended the mediation on 26 November 2012 and attended the directions hearing on 20 December 2012.
6. For the reasons set out above, the draft Statement of Claim did not advance the proceeding on behalf of the Hannas. They received little if any value from the time spent by Mr Beling conducting the research for, and drawing that document. Mr Beling carried out extensive research and drafting before he had a sufficient basis on which to embark on that work. A practitioner should be given some leeway in the context of a conduct allegation arising out of alleged lack of competence in handling a client's matter, where it is potentially complex, as was the case here. However, in this instance, the cumulative effect of the inadequacies in Mr Beling's handling of the matter is such that it can be said the $50,000.00 charged was quite out of proportion with the value the clients received.
7. A lot of time was required to be spent in conferences, and in responding to Mrs Hanna's communications. That time is largely justified, although of course there is a point where a solicitor must advise his clients in clear terms how much the additional work being done on issues specifically raised by them is simply causing extra expense to them, and not advancing their case.
8. However, the vast majority of the time spent on legal research and drawing the draft Statement of Claim was of little or no value. That claim needed to be re-drafted from scratch if it was to be put in a form which would avoid being struck out. The fact that Mr Beling contended in his defence that he was not in a position to advise the Hanna's properly until he received additional documents underlines the fact that too much time was spent on research and drawing the draft Statement of Claim.
9. Additionally, because of the flawed and counter-productive strategic approach adopted by Mr Beling, a large proportion of the additional costs accumulated (comprising preparation for court hearings, drafting correspondence and affidavit material, plus many small items for attendances, mainly sending and receiving emails and telephone calls) were also wasted.
10. Mr Beling contended that the fact that his fees were capped at $50,000 for the entirety of the litigation meant that they represented very good value for the Hannas. Beyond that figure, Mr Beling was going to work for the Hannas for no additional charge for the entire duration of the case. This could have been for 18 - 24 months. (Albeit that the Hannas would have to pay Counsel's fees, and that Mr Beling would recover his fees over $50,000 if a payment in excess of $50,000 was received by them, plus a 25% uplift above $200,000.) However, the retainer did not proceed beyond the point at which $50,000 in fees had been accumulated. This was in circumstances where, by January 2013 the Hannas were dissatisfied with his service, and he was dissatisfied with their failure to keep up with the payment schedule. Given I have found that the services provided were inadequate, there was justification for the clients' dissatisfaction. So they were, or would have been justified in not continuing with the retainer. In those circumstances, it is not appropriate to consider the value for money proposition in the context of an 18 - 24 month $50,000 retainer (excluding disbursements).
11. Accordingly, I find allegation 9 proved.

1. The primary purpose of professional disciplinary proceedings is to protect the public, through the maintenance of professional standards and the reputation of the profession Although they are a species of civil proceeding, they have been described as sui generis (in a category of their own). A number of the principles applicable to criminal proceedings are applied in a modified way to disciplinary proceedings.[81]

1. These four charges are brought under Part 4.4 of the Legal Profession Act 2004. This establishes the regime for the investigation of conduct of legal practitioners, and the bringing of disciplinary charges against them. Relevant provisions in Part 4.4 include:

unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

Section 4.4.4 specifies conduct that is capable of constituting unsatisfactory professional conduct and section 4.4.5 specifies conduct that constitutes unsatisfactory professional conduct.

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

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

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

4.4.4 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

Without limiting section 4.4.2 or 4.4.3, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct -

(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules;

The Tribunal may find a person guilty of unsatisfactory professional conduct even though the application alleged professional misconduct.

1. This application was brought by the VLSC under s 4.4.13. Sections 4.4.15 - 4.4.20 contain provisions regulating the conduct of disciplinary hearings by VCAT.
2. Section 4.4.3 (like its predecessor and successor provisions) is an inclusive definition. That is, it defines the conduct in s 4.4.3(1)(a) and (b) as being within the category of professional misconduct. But it is not an exclusive definition. It also encompasses the concept of misconduct at common law.

1. Charges 1 and 2 allege 'professional misconduct at common law within the meaning of section 4.4.3(1)(a) of the Act for failing to exercise due care and competence ...'
2. Charges 3 and 4 allege professional misconduct, but not at common law, only in a statutory sense, under s 4.4.3(1)(a) and s 4.4.4(a), comprising contravention of r 12.2 of the Rules.
3. The VLSC correctly accepted that to prove misconduct at common law it must shown that Mr Beling has acted in a way which would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency. It referred to Re A Solicitor[82], Myers v Elman[83], Re a Solicitor[84], and Ex parte Attorney General (Cth); Re A Barrister and Solicitor[85], as authority for this. It is clear from the authorities, as the VLSC correctly accepted, that mere negligence, even of a serious character, will not necessarily suffice to constitute professional misconduct at common law.
4. The VLSC pointed to the authorities to the effect that a practitioner must not bring serious allegations on behalf of a client against a party without a proper basis, and without obtaining evidence to substantiate such serious allegations, particularly those involving fraud or dishonesty. It referred to Myers v Elman, Rondell v Worsley[86], Brown v Bennett[87], Y v M[88], Gazley v Wellington District Law Society[89] and Clyne v NSW Bar Association[90]. Several of these cases concern costs orders made against practitioners, who had failed in their duty to the court by pleading serious claims such as dishonesty and fraud, without reasonably credible material on which to base them. Both the VLSC and Mr Beling referred to the classic statement in Clyne v New South Wales Bar Association, concerning the absolute privilege afforded to practitioners in ventilating serious matters before the courts:

The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence.

1. The only authority which the VLSC referred to which relates to assessment of the seriousness of the conduct, and whether it amounts to professional misconduct, or something less, is Ex parte Attorney General (Cth); Re A Barrister and Solicitor[91]. In that case, the Full Court of the Supreme Court of the ACT, constituted by Fox, Blackburn and Woodward JJ said at [243]:

It is recognized that negligence and want of professional skill are not necessarily in themselves misconduct. In Re W. C. Mosely Street C.J., with whom Gordon and James JJ. concurred, said: 'I agree that mere neglect or delay in the transaction of a client's business does not necessarily amount to misconduct of such a character as to be punishable by the court in the exercise of its disciplinary jurisdiction, but it may do so, and each case must depend upon its own circumstances. It may be difficult sometimes to know where to draw the line, but, wherever it should properly be drawn, I think that, in the present instance, the neglect was of such character, and took place in such circumstances, as to carry the case well over it and into the region of professional misconduct.'

In Re a Solicitor, Lord Denning M.R., with whom Karminski and Orr L.J.J. concurred, said: 'In my opinion negligence in a solicitor may amount to a professional misconduct if it is inexcusable and is such as to be regarded as deplorable by his fellows in the profession.' See also Cordery (op. cit. p. 516), Lund, The Professional Conduct and Etiquette of Solicitors (1960) at pp. 61, 52; Orkin, Legal Ethics, pp. 211, 221.

1. The ACT Supreme Court decision concerned a disciplinary case where a very inexperienced solicitor - he had only been practising for 13 days when the conduct occurred - acted for both parties in a conveyance, giving rise to conflicts of interest.
2. The Court said at [255]:

In particular [the Court] finds that the solicitor, having placed himself in the difficult position of acting for both vendor and purchasers, did not fulfil his duties to his respective clients and particularly to the vendor. Again, having placed himself in the even more difficult position of acting both for one of the purchasers as borrower and his own father as lender, he failed to carry out adequately his duties to the purchaser.

The acts of omission and commission involved went further than mere negligence. On the other hand we do not take the view that the solicitor acted disgracefully or dishonourably. His errors arose from inexperience, mistakes of law, and a general lack of understanding of a solicitor's duties to his clients. He acted for several contrary interests in a situation of some difficulty and took far too much upon himself.

1. The court went on to find that the practitioner had engaged in 'unprofessional conduct'- as opposed to professional misconduct.
2. The same conclusion was arrived at in Law Society of Tasmania v Turner[92]. That case concerned a firm's management of its mortgage practice. In relation to mortgages administered by the firm, where mortgagors defaulted in making interest payments, the firm adopted the practice of using funds from other mortgagees to cover the shortfall. However, there were significant mitigating factors, including that this practice was engaged in by a number of other reputable firms without disapproval by the Law Society.
3. The statutory regime in Tasmania was different to that applicable here, but the case is an illustration of the way in which the courts approach the question of determining how serious the conduct being considered is. Crawford J said:

...I am not persuaded that the respondents are guilty of professional misconduct, as opposed to unprofessional conduct, within the meaning of those expressions as I have determined them to be. I have not reached a state of satisfaction that, without the benefit of hindsight, legal practitioners of good repute and competency would have regarded the respondents' conduct as disgraceful or dishonourable.[93]

1. In terms of the distinction at common law between professional misconduct, and lesser conduct, in a medical context, Kirby P (as he then was) said in Pillai v Messiter (No 2):

The words used in the statutory test ("misconduct in a professional respect") plainly go beyond that negligence which would found a claim against a medical practitioner for damages: Re Anderson, (at 575). On the other hand gross negligence might amount to relevant misconduct, particularly if accompanied by indifference to, or lack of concern for, the welfare of the patient: cf Re Anderson (at 575). Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct: ibid. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson (at 760-761). These are the approaches which have been taken in our courts. They have been taken in the courts of England where such misconduct is alleged. And they have similarly been taken in the courts of the United States. The entry in Corpus Juris Secundum, vol 58, (1948) at 8181, reads:

"Both in law and in ordinary speech the term 'misconduct' usually implies an act done wilfully with a wrong intention, and conveys the idea of intentional wrongdoing. The term implies fault beyond the error of judgment; a wrongful intention, and not a mere error of judgment; but it does not necessarily imply corruption or criminal intention, and, in the legal idea of misconduct, an evil intention is not a necessary ingredient. The word is sufficiently comprehensive to include misfeasance as well as malfeasance, and as applied to professional people it includes unprofessional acts even though such acts are not inherently wrongful. Whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the conduct and not from its consequences.[94]

1. In summary, to amount to misconduct at common law, conduct does not have to be dishonest, or deliberate, or illegal. It may be conduct which is properly described as abuse of privileges, infamous conduct, gross or serious negligence or conduct involving some degree of iniquity, moral turpitude or moral obliquity. The test to be applied is whether it would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency.

Professional misconduct at common law within the meaning of s 4.4.3(1)(a) of the Act for failing to exercise due care and competence in the course of engaging in legal practice, for failing to fulfil his duties to his clients Peter and Tracie Hanna (the Hannas) during the period 24 August 2012 to 30 January 2013 to exercise proper care and conduct of the proceedings before the Court in which his clients were the applicants and for which work he charged a fee for his legal services in excess of $50,000.

The particulars relied upon are those set out in paragraphs 1 to 68 above and the Commissioner relies upon Ex parte Attorney General (Cth); Re A Barrister and Solicitor [1972] 20 FLR 234 and Myers v Elman [1940] AC 282.

1. Charge 1 relies on all nine of the key allegations analysed above. I have found that the matters alleged in relation to those nine key allegations been proved, with only a few exceptions. Those exceptions are primarily allegations 4 and 7, which are of comparatively minor significance, and some aspects of allegation 3, relating to costs disclosure.
2. Charge 1 alleges professional misconduct at common law, but 'within the meaning of s 4.4.3(1)(a) of the Act'.[95] As the VLSC acknowledged, this allegation of professional misconduct at common law requires satisfaction that disgraceful or dishonourable conduct has been engaged in (as judged according to the standards of colleagues of good repute and competency).
3. Section 4.4.3(1)(a) refers to conduct which involves a substantial or consistent failure to reach or maintain a reasonable standard of competence. Charge 1 also refers to Mr Beling's alleged failure to exercise 'due care and competence' and his failure to exercise 'proper care and conduct' of the Hannas' case over the entire period of the retainer.
4. That is, it relates to Mr Beling's competence in handling the Hannas' case overall - rather than, for example, a failure to comply with a provision of the Act, a relevant Tribunal order or a condition on his practice, or any of the other matters specified in the Act as capable of constituting professional misconduct.
5. The effect of charge 1 is to allege that Mr Beling's handling of the Hannas' file was not just negligent, but that it amounted to conduct which colleagues of good repute and competency would regard as disgraceful or dishonourable.

1. Mr Beling submitted in his final 'Oral Submissions'[96] that charge 1 should be interpreted as pertaining to unsatisfactory professional conduct, as that is what s 4.4.3(1)(a) refers to (where a substantial or consistent failure to maintain a reasonable standard of competence and diligence is involved). However, it is clear from the wording of charge 1, and this was confirmed by discussions during the course of the hearing, that the VLSC alleges misconduct at common law.

1. The VLSC's ultimate submission was:
   1. The failure to provide adequate advice when combined with the confused nature of the draft Statement of Claim prepared by Mr Beling for the mediation is significant and was in direct dereliction of Mr Beling's obligations to ensure his clients are properly informed about their legal rights and obligations in respect of the proceeding. The material shows a lack of knowledge of the law by Mr Beling and of good practice in solicitor's offices.
   2. Having regard to all the evidence, it is submitted that the extent of Mr Beling's omission or failure is more than mere negligence for the purposes of disciplinary proceedings and constitutes professional misconduct being conduct [which would be regarded as] disgraceful or dishonourable by legal practitioners of good repute and competency (charges 1 and 2) and unsatisfactory professional conduct involving a consistent failure to reach or maintain a reasonable standard of competence and diligence (charges 3 and 4).[97]

1. Mr Beling continued to maintain in the hearing that the claim was viable, that the Hannas had reasonable prospects of achieving a judgement of $750,000 and that it was 'perfectly acceptable' to include the 'more aggressive claims against the ANZ' in order to pursue his clients' interests 'with the maximum vigour which is allowed by the law'.[98]
2. Mr Beling submitted that there was a sufficient basis for the fraud, dishonesty, corruption and intent to conceal evidence claims. He pointed to Mrs Hanna's instructions, the ANZ's admission that an incorrect statement had been made on 27 April 2011 that a legal letter had been issued on 21 April 2011, Mrs Hanna's statements that ANZ representatives had subsequently told her the default letter would be re-sent, the ANZ's solicitors' insistence on placing the material derived from the FOS investigation in a sealed envelope in the court file, and their lack of response to his requests for production of documents from September 2012.
3. For the reasons set out above, I have found that these matters did not constitute a sufficient basis for the making of such allegations against the ANZ in the draft Statement of Claim.
4. Mr Beling also sought to invoke Mr Mahoney's evidence as support for his conduct. Mr Mahoney had alleged in the letters of demand he wrote that the Hannas had 'a valid claim for damages against ANZ resulting from obvious misrepresentation and harsh and unconscionable conduct on the part of ANZ'. However, as noted, Mr Mahoney did not make the serious allegations of fraud, dishonesty and corruption against the ANZ which Mr Beling did. Also, Mr Mahoney approached the matter in a proportionate way, and took practical steps to seek to resolve the matter promptly to the Hannas' benefit, apparently with a minimum of expense. He obtained instructions to offer to settle, on the basis the ANZ forego arrears, and the Hannas would not disparage the Bank. This was set out in his letter of 18 July 2012.
5. In Mr Belling's favour, it is important to bear in mind that when he conveyed the draft Statement of Claim to the bank it was stated to be for the purposes of mediation only. He did not get to the stage of formally making these allegations in a document filed with the Court. To that extent the present case is different to those referred to by the VLSC above, which were referred to as articulating the principles concerning the making of serious allegations without a proper basis. Also, the VLSC does not allege that Mr Beling has behaved dishonestly.
6. I note that Mr Beling had attempted to arrange for counsel to settle his draft Statement of Claim. Had that occurred, in my view it would inevitably have been substantially altered. However, it did not, because of Mr Beling's unrealistic belief that the draft could be 'settled' for $1000 - $2000. In fact, the claim needed to be redrafted from scratch. Mr Beling had led his clients to believe it could be 'settled' for $1000 - $2000. It is apparent that the Hannas were unhappy about the idea of briefing counsel. They could not understand why Mr Beling needed to bring somebody else in to do the job which they believed they had retained him to do. There was some ambiguity arising from the fact that Mr Beling described himself at the outset as a 'solicitor advocate', even though he did advise the Hannas that he intended to brief counsel for 'statement of the claim, hearings and special advice'.[99]
7. But while it was certainly appropriate for Mr Beling to seek to brief Counsel, his response to Mr Kohn's preliminary view was quite inappropriate: when given the sensible advice that the claim needed to be redrafted from scratch, Mr Beling's response to Mrs Hanna was that he would look for another barrister.
8. I also note that as the retainer went on, Mr Beling did engage with the issue of 'causation' and the possibility of considering much lower, and less unrealistic settlement figures.
9. However, the effect of the findings I have made in relation to allegations 2, 3, 5, 6 and 8 (noting that most but not all matters alleged were proved) is that the Hannas were not given advice which enabled them to understand the issues in the case and their rights and obligations sufficiently to permit them to give proper instructions, particularly in connection with the mediation.
10. Mr Beling referred to authority in the realm of negligence[100] to the effect that advice could be wrong without being negligent, and great minds might differ on the question of whether advice was right or wrong. Here, however, the problem is that the advice given did not have a foundation - Mr Beling accepted the largely speculative and incoherent case concept his clients had conceived, and expanded on it, without being able to articulate a basis for the supposedly strong case his clients had.
11. The Hannas were clearly challenging clients to manage. They were apparently quite prepared to pursue misguided or unmeritorious claims and to utilise the media as much as they could. Also, Mr Beling said, and it appears consistent with the circumstances, that Mrs Hanna was very determined, and motivated to conduct a crusade against the ANZ.
12. Mr Beling's conduct had a significant impact on his clients, in that it deprived them of the legal advice they were entitled to receive prior to the mediation, even if it was not the advice they wanted. At the same time, the work he did came at great expense.

1. In my view, the most serious aspects of the conduct I have found Mr Beling engaged in which are the subject of charge 1 are: the preparation of such an unprofessional document in the form of the draft Statement of Claim, the failures to carry out a proper analysis of his clients' position, to provide his clients with realistic advice as to their prospects of success or to moderate their unrealistic expectations, including advice that there was a good basis for the inclusion of serious allegations of fraud, dishonesty, corruption and intent to conceal evidence when no objective basis for such claims could be articulated, the potentially confusing nature of the advice given about the costs and risks they faced, and finally, the fact that he charged his clients $50,000 for services which provided them with little if any value.
2. Although the focus of most of the allegations by the VLSC against Mr Beling was on issues of negligence and poor client service, the ethical aspect of Mr Beling's conduct was raised, for example in paragraph 56(a) of the Application for Order. This refers to the fraud, dishonesty, corruption and intent to conceal evidence, allegations as being put without a proper basis.
3. In my view, Mr Beling's conduct in putting forward the allegations of fraud, etc, is the most serious in a disciplinary sense, given that no coherent chain of reasoning to support these claims was articulated, even in this disciplinary hearing. An example of Mr Beling's attitude in this regard was his response to Mrs Hanna's suggestion that they allege a breach of section 36 of the Crimes Act (Cth) headed 'Fabricating Evidence'. He said to her:

We'll go for it. The worst they can do is strike it out.

1. I have considered whether Mr Beling's conduct should be looked at in the same way as the solicitor in the ACT case referred to above. Could it be said that his conduct arose from naivety and inexperience, and that there is no element of moral obliquity attached to it?
2. In my view, that would not be the correct conclusion to draw here. Mr Beling had been admitted to practice for 10 years when acting for the Hannas. Although he had not worked full time for that whole period (including when completing his PhD) he had practised in a variety of settings, as described above. He is clearly knowledgeable about legal theory across a range of topics. He has for some years taken on the responsibility of conducting his own practice, with a practising certificate entitling him to receive trust moneys.
3. I find that Mr Beling's conduct the subject of charge 1, considered as a whole, as well as displaying gross negligence, does contain a component of moral obliquity. It is conduct which is serious, and indeed shocking, which colleagues of good repute would regard as disgraceful and dishonourable.
4. The allegations of fraud, dishonesty, corruption and intent to conceal evidence, were not formally put in a claim filed with the Court. However, even though he did not formally certify that there was a proper basis for them, his conduct in putting his name as a practising legal practitioner, to a document indicating that these serious allegations would be pursued against the ANZ, goes further than 'mere negligence'. Claims of this type are made by non-practitioner litigants in person on occasion. But for a practising lawyer to take them up, and expand them, is a serious matter. It was an abuse of the privileges which accompany the holding of a practising certificate for Mr Beling to promulgate these allegations. In my view, if other practitioners acted in the way Mr Beling has, the reputation of the profession would quickly decline.
5. Even confining consideration to those aspects of Mr Beling's conduct which might be said to be solely within the realm of negligence, in my view, it is, in the words of Lord Denning quoted in the ACT case above, negligence which amounts to misconduct at common law as it is 'inexcusable and is such as to be regarded as deplorable by his fellows in the profession.'
6. Mr Beling took over the conduct of a proceeding commenced by lay clients where the claim was in hopelessly inadequate form and in dire need of redrafting. Instead of bringing clarity and coherence, however, Mr Beling enlarged the scope of the claims made without an objectively justifiable basis, and magnified the confusion.
7. It was clear the Hannas had scarce resources (even if, as Mr Beling contended, they exaggerated their impecuniosity). To undertake litigation of this type against one of the major banks obviously entailed a significant element of financial risk. For litigants in the Hannas' position it is vital to explore effectively the opportunity available at the initial stage of the proceeding to seek to negotiate a resolution, while the stakes are still comparatively low.
8. Yet Mr Beling was an impediment to resolution, rather than an agent for it. The effect of his actions was to discourage his clients from investigating the possibility of resolving their claim. This showed a serious disregard for their interests. He advised them 'don't settle'. He arranged for them not to attend the mediation. This was despite Mrs Hanna emailing him on 9 November 2012 stating:

We are concerned we won't financially make it to the long awaited Court date, if we don't settle this month ... we won't have any money especially if I'm sick for markets this week until next Wednesday.

1. Given the imbalance of resources between his clients and the ANZ, it was very important for Mr Beling to take the opportunity to seek to resolve the matter at the early mediation. So the content of the claim which he indicated to the ANZ was proposed to be made against them, was of correspondingly high importance.
2. Mr Beling's costs disclosure advice to his clients of 3 November 2012 was ambiguous and on its face had the potential to convey the impression that their exposure to costs liability (both to him, and to the ANZ) was much lower than it actually would have been.
3. Although Mr Beling did obtain an order at the 20 December 2012 directions hearing for the production of documents by the ANZ, little else of substance was achieved during the retainer. There was a disproportionate expenditure of clients' funds on research and drafting work at the initial stage of the proceeding, which largely served merely to educate himself. Mr Beling failed to seek the advice of a person such as a barrister before proceeding too far with such a novel and challenging, indeed speculative case. The chance to procure a mediated resolution was lost. The clients' understanding of their case was little improved, and they were charged $50,000 for work which was of little value to them.
4. I find that colleagues of good repute and competency would regard his proved conduct the subject of allegations 1 - 9 as disgraceful and dishonourable. Accordingly, charge 1 is proved.

Professional misconduct at common law within the meaning of s 4.4.3(1)(a) of the Act for failing to exercise due care and competence during the period 24 August 2012 to 30 January 2013 in the course of engaging in legal practice by failing to adequately advise his clients the Hannas in all the circumstances.

The particulars relied upon are those set out in paragraphs 1 to 52, 57 to 68 above and the Commissioner relies upon Ex parte Attorney General (Cth); Re A Barrister and Solicitor [1972] 20 FLR 234 and Myers v Elman [1940] AC 282.

1. The allegation made by charge 2 (that is, failing to adequately advise the Hannas) is a subset of the allegation made by charge 1 (failing to exercise due care and competence/proper care and conduct of the Hannas' matter).
2. Similarly, the conduct encompassed by charge 2, as set out in the Particulars (that is, allegations 2 - 8) is a subset of the conduct encompassed by charge 1 (allegations 1 - 9).
3. Accordingly, I regard charge 2 as, in effect, an alternative to charge 1. Given I have found charge 1 proved, charge 2 is dismissed.

Professional misconduct within the meaning of s 4.4.3(1)(a) and s 4.4.4(a) for contravention of r 12.2 of the Rules by failing during the period 24 August 2012 to 30 January 2013 in the course of engaging in legal practice to adequately advise his clients the Hannas in the circumstances so as to permit his clients to give proper instructions.

The particulars relied upon are those set out in paragraphs 1 to 52, 57 to 67 above [that is, allegations 2-8].

1. Charge 3 refers to failing to adequately advise the Hannas in the circumstances so as to permit his clients to give proper instructions. I take into account that charge 3 does not include as Particulars, allegations 1 and 9, namely, the preparation of the draft Statement of Claim, and the charging of $50,000 for Mr Beling's services. It is necessary to bear in mind that these must be excluded when considering charge 3, as compared to charge 1. The conduct of most concern in relation to charge 3 is the failure to provide the Hannas with the analysis and advice they needed, especially prior to the mediation, as well as the ambiguity in estimates provided by Mr Beling to the Hannas of their potential liability for costs, both to him, and to the ANZ.
2. Charge 3 alleges professional misconduct within the meaning of s 4.4.3(a) and s 4.4.4(a) (for contravention of Rule 12.2). The way the charge is drafted indicates that satisfaction of breach of both these provisions is required. The VLSC's submissions were consistent with this, contending both a breach of Rule 12.2, and that the criteria in s 4.4.3(a) were satisfied.

First issue - unsatisfactory professional conduct

1. As noted, s 4.4.3(1)(a) has the effect of including within the concept of professional misconduct, unsatisfactory professional conduct where that involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.
2. Here, in the light of the analysis above, I have no hesitation in concluding that Mr Beling's conduct the subject of the applicable allegations which were proved (namely allegations 2, 3, 5, 6 and 8) constituted 'unsatisfactory professional conduct' under s 4.4.2 of the Act. That is, it was conduct which fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

Second issue - 'consistent' failure to reach or maintain a reasonable standard of competence and diligence'

1. Hence the first component of s 4.4.3(1)(a) is satisfied - the conduct is 'unsatisfactory professional conduct'. In relation to the other components of s 4.4.3(a), the VLSC made it clear that it alleges 'a consistent failure to reach or maintain a reasonable standard of competence and diligence'.[101]
2. I note the VLSC did not allege a 'substantial' failure to reach or maintain a reasonable standard of competence and diligence. The VLSC did not make any submissions addressing the question of whether Mr Beling's conduct the subject of allegations 2 - 8 constituted a 'consistent' failure to reach or maintain the stated standard, nor did Mr Beling.
3. The issue of what constitutes a 'consistent' failure was dealt with by the New South Wales Court of Appeal in Council of the Law Society of New South Wales v Webb[102]. The Court was considering the New South Wales provision which is identically worded to s 4.4.3(1)(a). In that case, a solicitor unwittingly became involved in a fraudulent scheme. It was perpetrated by a Mr Lee, who had told the solicitor, Mr Webb, that he had organised a syndicate for the purchase of properties. Mr Lee told Mr Webb he was acting as agent for property purchasers who wished to retain Mr Webb to act for them in the conveyances. Mr Webb had met several clients in relation to two prior similar transactions involving Mr Lee. But he did not meet the clients in relation to the 10 transactions the subject of the disciplinary proceeding. The fraudulent scheme involved purchasers paying more than the vendors understood they would receive, with the difference being taken by Mr Lee, without Mr Webb having knowledge of the fraud.
4. Mr Webb had confirmed with the Law Society that he did not need to meet these clients as long as he obtained 100 point identity checks. This he did.
5. Nevertheless, in the circumstances, Mr Webb was found guilty of unsatisfactory professional conduct by the Administrative Decisions Tribunal. This was in relation to his failure properly to satisfy himself as to the authenticity of Mr Lee's agency.
6. The Law Society appealed, contending Mr Webb was guilty of professional misconduct, rather than just unsatisfactory professional conduct. It accepted that his conduct was not a substantial failure to reach or maintain a reasonable standard of competence and diligence. But it contended that Mr Webb's conduct did comprise a consistent failure to reach or maintain that standard. This was on the basis that the conduct had occurred in relation to 10 separate conveyancing transactions, over the course of a year.
7. The Tribunal at first instance said:

[114] ... on balance, we consider that what was effectively the repetition of the same error by the Solicitor should not be treated as a 'consistent' course of unsatisfactory professional conduct when nothing was done to draw his attention to the nature and scale of the consequences of his error. This view of the question is in line with the Tribunal's suggestion in Asuzu that there should have to be a 'repeated or persistent failure resulting from the legal practitioner making the same mistakes of principle or acting in the same inappropriate way in a variety of situations (our emphasis)'. There was here no real 'variety of situations'.[103]

1. The Court of Appeal found that the Tribunal was correct in concluding that the 'consistent' requirement had not been satisfied.
2. The Court of Appeal referred to Xu v Council of the Law Society of New South Wales[104] which related to conduct described by Handley AJA referred to as 'incredibly sloppy' by a solicitor in properly identifying the parties to a conveyancing transaction. He said that if such acts were 'repeated in other transactions' that would satisfy the 'consistent' requirement in the provision.
3. In Council of New South Wales Bar Association v Asuzu[105] the Administrative Decisions Tribunal said:

[41] In relation to the use of the word 'consistent' in s 497(1)(a) [the equivalent of s 4.4.3(1)(a)], we note the relevant meaning in the Macquarie Dictionary is:

2. constantly adhering to the same principles, course, etc.

[42] Similarly, the Oxford English Dictionary provides the following definition:

7. Of persons or their conduct: Marked by consistency (see consistency n. 5b); constantly adhering to the same principles of thought or action.

[43] These definitions of 'consistent' and the scope and purpose of the section suggest that for a failure to fall within this aspect of s 497(1)(a) there would need to be repeated or persistent failure resulting from the legal practitioner making the same mistakes of principle or acting in the same inappropriate way in a variety of situations.[106]

1. In referring to the decisions of Xu and Asuzu, the Court of Appeal in Webb said:

[26] ... The references to the need for the failures or mistakes to occur in a 'variety of situations' or for them to be 'repeated in other transactions' emphasise that it is the persistent occurrence of the same or similar failures to reach or maintain a reasonable standard of competence and diligence on separate occasions which gives them the quality of being 'consistent'. The fact that they have that quality makes it likely that the explanation for the conduct is a want of fitness or competence rather than a serious of casual or uncharacteristic lapses or, as in this case, a single overarching mistake made in the context of related transactions.

[27] The repeated failure of the respondent to seek confirmatory instructions from his clients in ten transactions in which he was taking instructions from the same person was explained by the fact that he believed and trusted Mr Lee and considered, at least partly in reliance on his earlier telephone inquiry to the Law Society, that he was justified in acting on Mr Lee's instructions without having any direct contact with the clients. The Tribunal was justified in concluding that 'the repetition of the same error by the Solicitor should not be treated as a 'consistent' course of unsatisfactory professional conduct'; and is not shown to have erred in not characterising that conduct as professional misconduct.

[22] The distinction made by that definition is between conduct which involves a 'substantial' failure to reach or maintain the required standard and conduct which involves a 'consistent' failure to do so. The former directs attention to the nature and consequences of the failure, which may be sufficiently serious to raise questions as to the lawyer's competence and diligence and thereby warrant the description 'substantial'. The reference to a 'consistent failure' is to ongoing or persisting acts of failing on different occasions to reach or maintain the required standard. The same or similar failures which occur on a series of related occasions and are explained by an overarching error of judgment on the part of the lawyer (which is not itself the or a relevant failure which is the subject of complaint) do not involve a 'consistent failure' in the sense in which that expression is used in this definition.

1. Although the Court of Appeal's decision in Webb is not binding on the Tribunal, its reasoning on the identical provision to s 4.4.3(a) is persuasive.
2. In the case of Mr Beling, the question as to the application of the word 'consistent' arises in a different context to the decisions of Webb and Xu. They concerned multiple conveyancing transactions rather than the conduct of litigation on behalf of a client.[107] Nevertheless, they do relevantly invoke the notion of a single mistake having consequences in multiple transactions (where the failure would not be 'consistent') as opposed to the making of the same or similar mistake on a number of different occasions (where the failure would be 'consistent').
3. In my view the appropriate approach is to consider what it is that comprises the alleged failure to reach or maintain a reasonable standard of competence and diligence in the particular circumstances referred to. And then to ask whether that failure has occurred consistently. Charge 3 refers to the alleged failure of Mr Beling to adequately advise his clients, so as to permit them to give proper instructions. It invokes as particulars the matters in allegations 2 - 8.
4. I find that the matters the subject of charge 3 are more aptly characterised as a single course of conduct, than as a series of individual actions or omissions, for the purpose of this analysis. Mr Beling's failure to advise his clients adequately so as to permit them to give proper instructions, is most logically characterised as a single failure. It occurred over a relatively short period, in relation to one litigious matter, for one set of clients.
5. This interpretation is given support by the fact that s 3.4.4(1)(a) includes 'substantial' as the alternative limb. In my view, that is the more appropriate descriptor for Mr Beling's conduct. But the VLSC has not alleged that here.
6. Accordingly I find that the VLSC has not proved the component of s 4.4.3(1)(a) which it has alleged was breached by Mr Beling, namely that there has been a consistent failure to reach or maintain a reasonable standard of competence and diligence.
7. Thus, Mr Beling is not found guilty of professional misconduct under charge 3.
8. However, I have already concluded as part of the analysis under s 4.4.3 (1)(a) that the conduct the subject of charge 3 constitutes unsatisfactory professional conduct. So the next question is whether an alternative finding of unsatisfactory professional conduct should be made, under s 4.4.20 of the Act.
9. Given that the way charge 3 is drafted is that contravention of Rule 12.2 is a necessary component of that charge, I need to consider whether the alleged breach of Rule 12.2 has occurred.

1. Rule 12.2 of the Professional Conduct and Practice Rules 2005, provides:

A practitioner must seek to assist the client to understand the issues in the case and the client's possible rights and obligations, if the practitioner is instructed to give advice on any such matter, sufficiently to permit the client to give proper instructions, particularly in connection with any compromise of the case.

1. I was not referred to any authorities in relation to the interpretation of Rule 12.2. It appears in that section of the Rules dealing with 'Advocacy and Litigation'. Rule 12 is headed 'Duty to client'. It is focused on arming clients with an understanding of the issues in their case and their possible rights and obligations, such that they are able to give proper instructions, particularly in connection with any compromise of the case. It places a mandatory obligation on the practitioner to 'seek to assist the client to understand' those things.
2. Here, Mr Beling was clearly instructed to give advice to the Hannas, as this was obviously integral to his retainer to conduct the proceeding on their behalf. He had an obligation to advise them in relation to the litigation generally, and in particular, given the early stage the proceeding was at, and the fact that it was listed for an early mediation, to advise them about any possible compromise of the case. In fact, given the Hannas' circumstances, this obligation was particularly important - they were vulnerable clients who owed money to the ANZ, and time was important in the sense that their arrears were mounting as time went on, and they had a case, conceived by themselves, which, on its face, appeared to be speculative at best.
3. For the reasons set out in detail above, in relation to allegations 2, 3, 5, 6 and 8, especially allegation 2, I find the Hannas were not given advice which enabled them to understand the issues in the case and their rights and obligations sufficiently to permit them to give proper instructions, particularly in connection with the mediation.

1. Mr Beling submitted that charge 3 must be dismissed because it although it was based on an alleged breach of Rule 12.2, it only alleged 'failing... to adequately advise' the Hannas, rather than failing to 'seek to assist' them to understand the issues in their case, as Rule 12.2 requires.
2. I do not accept that contention. A practitioner may fail to 'seek to assist' a client by failing to 'adequately advise' that client. The effect of this charge brought by the VLSC is that he failed to 'seek to assist' the Hannas by the actions he took during his retainer. Mr Beling may have believed he was promoting his clients' interests. But he did not seek, in the sense of 'attempt', or 'try', especially at the vital stage of prior to the mediation, to assist the Hannas to understand the issues of strategic significance in their case. The only written advice he provided stated that they had strong prospects for success (in the event the 'FOS material' was admitted into evidence) without explaining the basis on which this conclusion was reached. Nor was this explained by any of the other documentary or oral statements which Mr Beling referred to. Mr Beling arranged for his clients not to attend the mediation, and advised them not to settle.
3. As a result, I find that Rule 12.2 was breached by the conduct found proved in relation to allegations 2, 3, 5, 6 and 8.
4. Accordingly, applying s 4.4.20, Mr Beling is found guilty of unsatisfactory professional conduct, but not professional misconduct, under charge 3.

Professional misconduct within the meaning of s 4.4.3(1)(a) and s 4.4.4(a) for contravention of r 12.2 of the Rules in the course of engaging in legal practice by failing to seek to assist his clients to understand the issues in the case and his clients' rights and obligations by providing insufficient advice in writing on prospects to his clients the Hannas prior to mediation as required by the Registrar of the Federal Magistrates' Court by letter dated 12 October 2012 so as to permit his clients to give proper instructions in connection with the compromise of the case.

The particulars relied upon are those set out in paragraphs 1 to 52, 57 to 59, 61 to 64 and 66 to 67 above.

1. Charge 4 is drafted in a relevantly similar way to charge 3. So, for the same reasons, the 'consistent' element is not satisfied, and statutory professional misconduct under charge 4 has not been proved either. The reasoning above applies with even more force to charge 4, because it focusses on a specific action, namely Mr Beling's response to the letter from the FMC Registrar of 12 October 2012.
2. As a consequence, the only finding which would be available in relation to charge 4, is unsatisfactory professional conduct.
3. However, the allegation made by charge 4 (that is, relevantly, failing to assist the Hannas to understand their case by providing insufficient advice in writing as to prospects to permit them to give proper instructions, following the Registrar's letter of 12 October 2012) is a subset of the allegation made by charge 3 (failing during the course of the whole retainer to adequately advise the Hannas so as to permit them to give proper instructions).
4. Similarly, the conduct encompassed by charge 4 (allegations 2, 3, 5, 6 and 8) is a subset of the conduct encompassed by charge 3 (allegations 2 -8).
5. Accordingly, I regard charge 4 as, in effect, an alternative to charge 3. Given I have found charge 3 proved (to the extent that Mr Beling's conduct the subject of charge 3 constituted unsatisfactory professional conduct) charge 4 is dismissed.

1. This matter is to be set down for a further hearing to determine what orders should be made in the light of the above findings.
2. I note the overlap between charges 1 and 3. In this regard I note it is a fundamental principle that Mr Beling not be penalised twice for the same conduct.[108]

[1] From 1 July 2015 the functions of the LSC were taken over by the VLSC under the Legal Profession Uniform Law Application Act 2014 (Vic). Schedule 1 to that Act is the Legal Profession Uniform Law.

References in this decision are to the LSC or VLSC as appropriate. The Legal Profession Act 2004 was repealed on 1 July 2015 and replaced by the Uniform Law. However, under the applicable transitional provisions, this matter falls to be determined under the 2004 Act.

[2] Paragraph 53 recited dates on which Mr Beling engaged in legal research. It was specified as a particular for charge 1 only.

[3] The Particulars to charge 2 include paragraph 68 of the Application (being allegation 9 - that Mr Beling charged $50,000 for his services). But in his closing written submissions at [6], Mr Beling pointed out that the VLSC did not appear to rely on allegation 9 in relation to charge 2. The VLSC's submissions indicated that the inclusion of allegation 9 was a point of difference between charges 1 and 2. And the words of charge 1 include a reference to charging $50,000, while the words in charge 2 do not. So I have proceeded on the basis that paragraph [68] was included in the particulars to charge 2 in error.

[4] [1938] HCA 34; (1936) 60 CLR 336.

[5] [1992] HCA 66; (1992) 67 ALJR 170.

[6] [2013] VSCA 305.

[8] Mr Beling. accepted that it was not appropriate for the VLSC to call Mr Hanna.

[9] VLSC's Closing Submissions at [15].

[10] See also the discussion in Woods v The Legal Ombudsman [2004] VSCA 247 at [30] - [36].

[11] Respondent's Closing Submissions dated 23 April 2017, paragraph 4.

[12] Respondent's Closing Submissions dated 23 April 2017, paragraph 46.

[13] This was in circumstances where civil proceedings were brought by Mr Beling at VCAT (for payment of his fees) against the Hannas, and a counterclaim (alleging, in effect, negligence and overcharging) were commenced, but then adjourned on the application of Mr Beling pending this disciplinary proceeding.

[14] In fact, no allegation of breach of Rule 13 (which states a practitioner is not to act as a mere mouthpiece of the client) was ultimately brought. Nevertheless, there is obviously a component of 'mere mouthpiece' type of conduct encompassed within the charges.

[15] [2016] VSC 180.

[16] Mr Beling's file, page 333 (as numbered by the VLSC).

[17] Mr Beling's file page 677-8 - email from Tracie and Peter Hanna to the FOS and ANZ dated 29 March 2012.

[18] Mr Beling's first response to the LSC, dated on or about 11 April 2013 - Application for Order page 57.

[19] Mr Beling's first response to the LSC, dated on or about 11 April 2013 - Application for Order page 58.

[20] The reference to '2012' in the last three lines is clearly an error, intended to be 2013.

[22] Folder of emails between Mr Beling and Mrs Hanna, pages E12-18. There were other emails relating to requests to print documents, or variations of those requests (e.g.E22, E24, E40). Note - references in this decision to page numbers with the prefix 'E' relate to that folder of emails.

[25] In relation to his brief email of instructions to the psychologist of 11 October 2012 - Document E 66.

[29] Email from Mrs Hanna to Mr Beling - Document E30.

[33] Application for Order pages 20 - 22.

[39] This is apparently on the basis that if the case was run to a contested hearing, and if the Hannas lost, they would have to pay Mr Beling $50,000, which is $26,516 more than if they won it (with costs) - and so received $23,684 from ANZ. But this does not include any reference to the ANZ's costs - see below.

[44] Mr Beling's fourth response to the LSC, 18 July 2014, Application for Order page 208.

[46] Mr Beling's first response to the LSC, 11 April 2013, Application for Order pages 68, 69.

[52] Mr Beling's file only contains an unsworn copy of his affidavit of 14 December 2012, and apparently does not include the exhibits - pages 184 - 189.

[58] Beling v Legal Services Commissioner [2016] VSC 180.20.

[59] Mr Howell was critical of the fact that there did not appear to be any consideration given by Mr Beling to ensuring that Mr Hanna was able to provide proper instructions, given that the file indicated he was legally deaf and had an intellectual disability. However, the Particulars in the Application for Order (at paragraph 62) only refer to an alleged failure to take action to obtain Mr Hanna's properly informed instructions in the light of his deafness, but not his apparent intellectual disability.

[60] It is not clear to me how these losses were said to flow from the ANZ's conduct, although Mr Beling said damage was caused by exposure to the elements during the period April - November 2011.

[61] Mr Beling said he did not adopt all of the allegations Mrs Hanna had made, or sought that he make, in the draft Statement of Claim.. He said he had not adopted allegations under ss '88(d)' [which is a non-existent provision] and 98(1) of the Code. He did however make an allegation under s 88(3) of the Code. - Mr Beling's fourth response to the VLSC, 18 July 2014 - Application for Order page 287.

[62] Although there is an additional figure of''$95,000' which appears on a line of its own, with no indication of what it might relate to.

[63] Mr Beling's Final Submissions at paragraph 26.

[67] VLSC's Closing Submissions, paragraph 32.

[68] VLSC's Closing Submissions, paragraph 32.

[69] See also the analysis in relation to allegation 6 below.

[70] In his fourth response to the VLSC, said he advised the Hannas 'to consider a low figure, such as $200,000', but Ms Hanna refused. He said he asked the Hannas what they thought about settling for payment of the arrears, but again they refused. - Application for Order page 209.

[71] There is a reference to 'CAUSATION' in a file note of a conference between Mr Beling and Mr and Mrs Hanna on 15 December 2012. There is also a handwritten file note by Mr Beling headed 'Causation', undated, but located close to the conference file note in his file. -See Mr Beling's file, pages 44 and 39 respectively.

[72] Mr Beling's fourth response to the VLSC, Application for Order page 209.

[75] The table provided by Mr Beling on 3 November 2012 does refer to $2000 for 'Disbursements: Court fees and other fees and payments, to the extent that they have been reasonably incurred'. However, Mr Beling did not contend that this covered barristers fees or medical reports, and in any event, it is obviously of a different order of magnitude to what those fees would have been.

[77] Mr Beling's 'Re-examination' document, 5 March 2017, page 5.

[79] This text was repeated by Mr Beling, at least at page 8 of his Second Response of 16 January 2014 (page 83 of the Application).

[80] Mr Beling's Second Response to the VLSC, 16 January 2014, page 5 (page 80 of the Application).

[81] Matthew Stirling v Legal Services Commissioner [2013] VSCA 374 at [63] and following.

[82] [1912] 1 KB 302 at 311-12

[83] [1940] AC 282

[85] [1972] 20 FLR 234

[87] [2002] 2 All ER 273 at 310 and 323-4.

[88] [1994] 3 NZLR 581 at 585-8.

[89] [1976] 1 NZLR 452.

[90] [1960] HCA 40; (1960) 104 CLR 186 at [200].

[92] [2001] TASSC 129.

[94] (1989) 16 NSWLR 197 at 200.

[95] Generally, charges of misconduct at common law are not expressed as being covered by the concepts in s 4.4.3(1)(a) or (b), but simply expressed as misconduct at common law.

[96] Albeit that he did not appear on the final hearing day. He did not seek an adjournment. Rather, he provided the Tribunal with his final 'Oral Submissions', which he said he would simply have read out verbatim, had he attended.

[97] VLSC's Closing Submissions, at [7] and [91].

[98] Mr Beling's Closing Submissions, at [13].

[99] Mr Beling's file, page 141 - file note of conference on 25 August 2012.

[100] Vati v Trumble Szonto and Braham 1997 VLPT 4, and the authorities referred to therein.

[101] VLSC's closing submissions at [7] and [91].

[102] [2013] NSWCA 423.

[103] Ibid at [17] (passage quoted in the Court of Appeal decision).

[104] [2009] NSWCA 430.

[105] [2011] NSWADT 209.

[107] The question of how the word 'consistent' was to be applied did not ultimately arise in Asuzu.

[108] Woods v The Legal Ombudsman [2004] VSCA 247 at [54].