(c) advised that if no response was received then the Applicant may commence proceedings.

1. The Respondent did not respond to the Applicant's letter of 2 May 2014.
2. On 21 May 2014 the Applicant wrote to the Respondent and advised that an application to the Tribunal would be made in respect to his failure to comply.
3. On 30 June 2014 the Respondent provided his response to the Velardi request to the Applicant.
4. On 12 June 2015, the Applicant wrote to the Respondent seeking any submissions or material to be taken into consideration before a decision is made under s.4.4.13 of the Act in relation to the Velardi complaint. No response was received to this letter.
5. On 29 June 2015, the Applicant sent a decision letter in relation to the Velardi complaint to the Respondent.

1. On 18 September 2013, the Applicant received a disciplinary complaint from Mrs. Margaret Wallin (Mrs. Wallin) in respect to the Respondent (the Wallin complaint).
2. The nature of the Wallin complaint was that inadequate costs disclosure had been provided in respect to two matters:

(a) a sale of a property at 75 Princes Street, Kew (the conveyancing matter); and

(b) a dispute with Mrs. Wallin's architect (the dispute matter).

1. On or about 23 July 2012 Mrs. Wallin engaged the Respondent to act for her in respect to the conveyancing matter.
2. On or about 23 July 2012 the Respondent gave Mrs. Wallin an oral costs estimate of $1,200 in the conveyancing matter.
3. In breach of s.3.4.9 of the Act the Respondent at no time provided the costs disclosure required by that section to Mrs. Wallin.
4. On 31 January 2013, the Respondent caused a bill to be sent to Mrs. Wallin in respect to the conveyancing matter for $1,079.05.

1. The Applicant wrote to the Respondent by way of letter dated 22 October 2013, enclosing a copy of the Wallin complaint and requesting .that the Respondent provide a written explanation of the concerns raised in the complaint. The Applicant also required that the Respondent provide the Applicant with his file relating to the dispute matter.
2. The Respondent did not reply to the Applicant's letter of 22 October 2013 and on 14 November 2013 a reminder letter was sent requiring the Respondent to produce his file in respect to the dispute matter.
3. On 19 November 2014, the Respondent sent an email to the Applicant advising that he did not have the file in respect to the dispute matter as they were with Henderson & Ball.
4. On 21 November 2014, the Applicant wrote to Henderson & Ball and sought the file in respect to the dispute matter
5. On 27 November 2014, Henderson & Ball wrote to the Applicant and advised that they did not hold the file in respect to the dispute matter, although they held a box of documents.
6. On 6 January 2014, the Applicant wrote to the Respondent and advised that, although certain files had been located with Henderson & Ball the file in respect to the dispute matter had not been found and again asked the Respondent to check whether or not this file was in his possession.
7. The Respondent did not respond to the Applicant's letter of 6 January 2014.
8. On 25 February 2014, the Applicant wrote to the Respondent and provided him with a final opportunity to respond to the letter of 6 January 2014.
9. On 14 March 2014 the Respondent emailed the Applicant stating that he had located the file in respect to the dispute matter and offered to deliver it to the Applicant.
10. On 9 April 2014, the Applicant wrote to the Respondent and again required the Respondent to provide his file in respect to the dispute matter pursuant to s.4.4.11 of the Act.
11. On 6 May 2014, the Respondent provided the Applicant with his file in respect to the dispute matter.
12. On 18 February 2015, the Applicant wrote to the Respondent seeking any submissions or material to be taken into consideration before a decision is made under s.4.4.13 of the Act in relation to the Wallin complaint.
13. On 30 March 2015 the Respondent replied to the Applicant's letter of 18 February 2015.
14. On 8 May 2015, the Applicant sent a decision letter in relation to the Wallin complaint to the Respondent.
15. Further investigations followed and then lengthy negotiations took place with the Respondent.

In summary, the charges may be grouped as follows:

1. Charge 1 professional misconduct for failing to provide costs disclosure (section 3.4.9). 2. Charge 2 professional misconduct by making an improper costs agreement (section 3.4.27)

1. Charge 3 professional misconduct by failing to use best endeavours to complete legal work (Rule 1.2).

1. Charge 4 unsatisfactory professional conduct for failing to provide costs disclosure (section 3.4.9) 2. Charge 5 professional misconduct by making an improper costs agreement (section 3.4.27)

1. Charge 6 unsatisfactory professional conduct for failing to provide costs disclosure (section 3.4.10)

1. Charge 7 professional misconduct - substantial failure of standard of competence and diligence (section 4.4.3(1)(a)) 2. Charge 8 professional misconduct at common law - misleading affidavit 3. Charge 9 professional misconduct conflict of interest (Rule 9.1)

1. The Wallin complaint resulted in two charges:
   1. Charge 10 unsatisfactory professional conduct failing to provide costs disclosure (section 3.4.9)
   2. Charge 11 professional misconduct - failure to provide the Commissioner with a file for six months (section 4.4.11).

The Respondent is guilty of professional misconduct within the meaning of s.4.4.4(a) of the Act in that he failed to provide Ms Velardi with costs disclosure in respect to the Lederman claim as required by s.3.4.9 of the Act.

The particulars relied upon are those set out in paragraphs 1, 6-9, 11 and 108 to 117 above.

Charge 2 - Improper conditional costs agreement

The Respondent is guilty of professional misconduct within the meaning of s.4.4.4(a) of the Act, in that the Respondent contravened s.3.4.27 of the Act in that the Lederman conditional costs agreement:

(a) was not in writing, in clear and plain language and signed by the client; and

(b) did not set out the information required by ss.3.4.27(3)(a), (b), (e) and (d).

The particulars relied upon are those set out in paragraphs 1, 6-10 and 108 to 117 above.

The Respondent is guilty of professional misconduct within the meaning of s.4.4.4(a) of the Act, in that he contravened rule 1.2 of Professional Conduct and Practice Rules 2005 by failing to use his best endeavours to complete legal work as soon as reasonably possible.

The particulars relied upon are those set out in paragraphs 1-9, 12-27 and 108 to 117 above.

The Respondent is guilty of unsatisfactory professional conduct within the meaning of s.4.4.4(a) of the Act in that he failed to provide Ms Velardi with costs disclosure in respect to the MIS proceeding as required by ss.3.4.9 of the Act.

The particulars relied upon are those set out in paragraphs 1, 6, 7, 28-30, 33 and 108 to 117 above.

Charge 5 - Improper conditional costs agreement

The Respondent is guilty of professional misconduct within the meaning of s.4.4.4(a) of the Act, in that the Respondent contravened s.3.4.27 of the Act in that the MIS conditional costs agreement:

(a) was not in writing, in clear and plain language and signed by the client; and

(b) did not set out the information required by ss.3.4.27(3)(a), (b), (e) and (d).

The particulars relied upon are those set out in paragraphs 1, 6, 7, 28-31 and 108 to 117 above.

The Respondent is guilty of unsatisfactory professional conduct within the meaning of s.4.4.4(a) of the Act in that he failed to provide Ms Velardi with costs disclosure in respect to the retainer of Stuart & Mills MIS proceeding as required by ss.3.4.10 of the Act.

The particulars relied upon are those set out in paragraphs 1, 6, 7, 28-31, 34, 35 and 108 to 117 above.

Charge 7 - Substantial Failure of Competence and Diligence

The Respondent is guilty of professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that the Respondent's conduct in respect to the MIS proceeding involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.

The particulars relied upon are those set out in paragraphs 1, 6, 7, 28, 29, 39-46, 51-64, 65-66, 67-83, 86, 87(d) and (e), 88-91, 95-101, 102 (a)-(d), 104 and 108 to 117 above.

The Respondent is guilty of misconduct at common law within the inclusive definition of professional misconduct in s.4.4.3(1) of the Act, in that he drew, swore and filed the 1 August 2013 affidavit in circumstances where he:

(a) knew and intended that it would be relied upon by the Supreme Court;

(b) knew that its contents were false and/or calculated to mislead the Court as to whether or not between early June and 10 July 2013 he was without instructions and thereby created a false or misleading impression as to the true state of facts.

The particulars relied upon are those set out in paragraphs 1, 6, 7, 28, 69, 70, 92, 102(a) and (c), 104, 105, 106 - 117 above.

The Respondent is guilty of professional misconduct within the meaning of s.4.4.4(a) of the Act in that, in breach of Rule 9.1 of the Rules the Respondent allowed his interests to conflict with the client's interests in respect to the application made for costs thrown away in the MIS proceeding**.**

The particulars relied upon are those set out in paragraphs 1, 6, 7, 28, 66, 85, 86, 87(a)-(c), 91, 92, 93, 94, 98, 99, 101, 102 (a) and (e), 105 and 108 to 117 above.

The Respondent is guilty of unsatisfactory professional conduct within the meaning of s.4.4.4(a) of the Act in that he failed to provide Mrs. Wallin with costs disclosure in respect to the conveyancing matter as required by s.3.4.9 of the Act.

The particulars relied upon are those set out in paragraphs 1, 118-123 and 124-137 above.

Charge 11 - Breach of s.4.4.11 - Failure to provide file

The Respondent is guilty of professional misconduct within the meaning of s.4.4.4(a) of the Act in that he contravened s.4.4.11 of the Act by failing to comply at the required time with the Applicant's requests for the Respondent's file in respect to the dispute matter in that the request was made originally on 22 October 2013 and not complied with until 6 May 2014.

The particulars relied upon are those set out in paragraphs 1, 118 and 124-137 above.

1. The standard of proof is the normal civil standard of a balance of probabilities, but it is necessary to take into account matters of the kind mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The following passages from Briginshaw's Case are relevant:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. (@ 361.)

The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. (@ 362.)

1. Section 3.4.9 of the Act sets out the requirements in relation to costs disclosure which must be made by a law practice to a client. Section 4.4.4(a) of the Act provides, inter alia, that conduct consisting of a contravention of the Act is capable of constituting unsatisfactory professional conduct or professional misconduct. Charge 1 is a charge of professional misconduct and Mr Burgess pleads guilty to this charge in relation to Ms Velardi's claim against Mr Lederman. Accordingly, Mr Burgess is found guilty of charge 1 as charged.

1. This charge relates to an alleged breach of section 3.4.27 of the Act which relevantly provides as follows:

(1) A costs agreement may provide that the payment of some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate.

(2) A conditional costs agreement may relate to any matter, except a matter that involves criminal proceedings or proceedings under the Family Law Act 1975 of the Commonwealth.

(a) must set out the circumstances that constitute the successful outcome of the matter to which it relates; and

(b) may provide for disbursements to be paid irrespective of the outcome of the matter; and

(d) must contain a statement that the client has been informed of the client's right to seek independent legal advice before entering into the agreement; and

(e) must contain a cooling-off period of not less than 5 clear business days during which the client, by written notice, may terminate the agreement.

(4A) Subsection (3)(c)(iii), (d) and (e) does not apply to a conditional costs agreement made with a sophisticated client.

1. Mr Burgess pleads not guilty to this charge.
2. I find no evidence to satisfy me that Ms Velardi was a sophisticated client.
3. Mr Burgess filed two witness statements in relation to the proceeding before the Tribunal. The first was dated 22 June 2017 (Mr Burgess's witness statement). A supplementary witness statement dated 31 July 2017 (Mr Burgess's supplementary witness statement) was also filed. Mr Burgess's supplementary witness statement deals with several matters, amongst which are two corrections to Mr Burgess's witness statement.
4. In evidence, Mr Burgess adopted both witness statements.
5. At paragraph 15 of Mr Burgess's witness statement, he states as follows:

I could see that the only way the retainer could work would be on the basis of a no-win no-fee agreement, but I had no experience of working on that basis and this is the only such agreement I have ever entered into.

1. I am satisfied that a 'no-win no-fee' agreement comes within the provisions of section 3.4.27 of the Act.
2. Paragraph 16 of Mr Burgess's witness statement states as follows:

All I knew about no-win no-fee agreements was that there was a limit on what you could mark up your fees by if you won and that you couldn't take a percentage of the proceeds of a court case. It was no part of our agreement that I would uplift my fees at all. I was unaware that there was a need for a client to sign a conditional costs agreement or that there were special rules which were required to be complied with, including that a written proposal for a costs agreement could not only be accepted orally or by conduct by the client so that as to create a valid costs agreement. I acknowledge that I should have looked the law up before entering into such an agreement, but it just did not occur to me that there might be special rules relating to conditional costs agreements.

1. At paragraph 17 of Mr Burgess's witness statement he states:

Having inspected the documents from Henderson and Balls file produced to the Commissioner by (I assume) the complainant, I can see that we prepared a draft conditional costs agreement but it did not seem to have been finalised and so probably was not sent. I believe that I was waiting until I was in a position to give a considered costs estimate in writing before putting it out, and when the receipt of instructions became drawn out, and the MIS crises landed, I must have overlooked that, but my state of mind afterwards that the proper papers had gone out. I acknowledge that this was slack, and that even if they had gone out, I should have been looking for their return, signed by Lisa. It never occurred to me that the firm did not have a valid costs agreement, but I thought no-win no-fee retainers could be accepted in the same way as normal costs agreements. I would never have sought to take advantage of that fact, and now know that the firm was bound by the costs agreement even if it was void and even if it did not bind Lisa.

1. In Mr Burgess's supplementary witness statement, Mr Burgess corrects paragraph 17 of his witness statement as follows:

First, what I referred to as a draft conditional costs agreement in paragraph 17 is not in fact a conditional costs agreement but a standard form costs agreement which my secretary would have generated as part of the process of setting up a file.

1. In any case at paragraph 21 of Mr Burgess's witness statement he states as follows:

I consulted with the partners and went back to Lisa a day or a few days later and told her I would act for her no-win no-fee as discussed in our first conference. Part of our agreement was that she would obviously have to pay out of pocket expenses and counsel's fees if counsel was engaged. That is what I said to her and she said okay and thanked me for being willing to act on that basis.

1. Section 3.4.26 of the Act provides that a costs agreement may be made (relevantly)

(a) between a client and a law practice retained by the client.

1. Mr Burgess was not a law practice as such. However, at all time relevant to charge 2, he was a partner of the firm of Henderson and Ball. There is no suggestion that any other partner or employee solicitor of Henderson and Ball was responsible for the conduct of Ms Velardi's claim against Mr Lederman. In submissions made on Mr Burgess's behalf it was stated that it is no part of Mr Burgess's case that he was not the person who caused Henderson and Ball to do, or not to do, things in relation to the complainant. The submissions continue that it is not his contention that section 3.4.27 imposed an obligation on someone but it was not imposed on him. His point is that it imposes no obligation on anyone. I disagree with this proposition. As stated previously, section 3.4.26 states that a costs agreement may be made between a client and a law practice retained by the client. This is a permissive provision, not a mandatory one. However, sub-section (2) contains a provision that a costs agreement must be written or evidenced in writing. Sub-section (3) provides that a costs agreement may consist of a written offer in accordance with sub-section (4) that is accepted in writing or by other conduct. However, a note to that sub-section states:

Acceptance by other conduct is not permitted for conditional costs agreements - see section 3.4.27(3)(c).

Section 3.4.27(3)(c) requires that a conditional costs agreement must be

1. It is submitted on behalf of Mr Burgess that section 3.4.27 and of the Act more generally contain no prohibition on firms entering into 'oral common garden variety conditional costs agreements.' Apart from the fact that such a description is unknown to the Act, it is clear that there was a situation where the parties were ad idem on the nature of the costs agreement. Section 3.4.26 permits the entering into of a costs agreement. Clearly, Ms Velardi and Mr Burgess so agreed. The agreement being in the nature of a conditional costs agreement, the mandatory provision of section 4.3.27(c) applies. Equally clearly, the entering into such an agreement without complying with the mandatory provisions of section 3.4.27 constitute a breach of the Act. It should be noted that such a breach is separate and distinct from a consequence in relation to the entitlement to payment of costs.
2. Having regard to the above, charge 2 is found proved.

1. This is a charge alleging professional misconduct by way of contravention of Rule 1.2 of the Professional Conduct and Practice Rules 2005. On Mr Burgess's part by him failing to use his best endeavours to complete legal work as soon as reasonably possible.
2. Mr Burgess pleads guilty to this charge but disputes the facts.
3. I am satisfied that paragraphs 1 to 5 of the Further Amended Application for Order are true and correct.
4. Rule 1.2 of the Rules reads as follows:

A practitioner must, in the course of engaging in legal practice, use the practitioner's best endeavours to complete legal work as soon as reasonably possible.

1. Instructions were received by Mr Burgess from Ms Velardi in relation to the Lederman matter on 4 April 2011.
2. According to Mr Burgess's witness statement, Mr Burgess drafted a witness statement for Ms Velardi to make in a claim being conducted by Mr Burgess on behalf of a sitting magistrate against Mr Lederman. Ms Velardi signed that witness statement on 1 May 2012. The claim by the Magistrate against Mr Lederman settled on 2 May 2012.
3. Mr Burgess's witness statement refers to him having sent some Civil Procedure Act documents to Ms Velardi to be signed and returned to him. He goes on to say that he does not recall her signing or returning the documents. There is no reference to any follow-up action on his behalf.
4. A witness statement made by Peter Baker, a member of the Victorian Bar, states that in April 2012 he was briefed to appear on behalf of the Magistrate in a claim against Mr Lederman. The trial of this matter was due to commence on 17 April 2012 and counsel who had been briefed was not able to appear and Mr Baker was asked to step in at short notice. Mr Baker goes on to say that during his preparation for that matter and probably during a conference with Ms Velardi in relation to her witness statement in that matter, Mr Burgess stated to Mr Baker that he, Mr Baker, would be briefed to prepare a statement of claim for Ms Velardi against Mr Lederman.
5. Mr Baker states that in or about early August 2012, Mr Burgess formally briefed him to prepare as Mr Baker had retained the brief from the previously settled matter and as the claim was similar to that being made by Ms Velardi. The brief by Mr Burgess to Mr Baker to prepare a statement of claim for Ms Velardi was simply a backsheet.
6. On 29 August 2012 Mr Baker sent to Mr Burgess by email a draft statement of claim for Ms Velardi. The next day a conference took place between Mr Baker, Mr Burgess and Ms Velardi in Mr Baker's chambers. Questions were raised in relation to potential statute of limitations issues. Mr Baker states that in that context he sought further instructions. He also states that despite his request for further instructions in the conference of 30 August 2012, 'I did not them [sic] at this time'.
7. Mr Burgess states that between May 2012 and July 2013 he was 'in contact' with Ms Velardi regarding the Lederman matter. He also states that during that period he was hopeful of resolving Ms Velardi's claim against Mr Lederman without necessarily commencing proceedings.
8. Mr Baker states that on each of 4 and 5 September 2012 he sent Mr Burgess an email which confirmed matters that had been discussed at the conference on 30 August 2012 regarding what further steps needed to be taken as well as referring Mr Burgess to a number of cases relevant to Ms Velardi's matter. In anticipation of receiving a response from Mr Burgess, Mr Baker prepared further amendments to the draft statement of claim. Mr Baker did not receive a response from Mr Burgess to the matters raised in his emails of 4 and 5 September 2012. Mr Baker sent a further email to Mr Burgess on 26 September 2012, amongst other things suggesting to Mr Burgess that whenever he got a chance that they should talk about the content of the email. Mr Baker states that he did not receive a response from Mr Burgess to that email. On 31 October 2012 Mr Baker sent a further email to Mr Burgess reminding him of Mr Baker's views about the statute of limitation period for Ms Velardi's claim. Mr Baker did not receive a response from Mr Burgess to that email. Mr Baker then states that he did not receive any further instructions from Mr Burgess and consequently he, Mr Baker, did not finalise the statement of claim and his memorandum.
9. Mr Burgess states that in relation to the emails from Mr Baker of 4 and 5 September 2012 regarding tasks to be attended to 'I worked on my tasks to the extent I thought that work justified at that juncture'.
10. Mr Burgess states that he did communicate with Mr Baker after the 4th and 5th of September 2012: 'not a lot but the conference was not the last time we spoke'. No details are provided and the assertion is at odds with the statement by Mr Baker.
11. I am satisfied also that Mr Burgess did not advise Ms Velardi of the contents of Mr Baker's email of 31 October 2012.
12. I am also satisfied that on 16 January 2013 Ms Velardi sent Mr Burgess an email stating her concern about the delay with the matter and that the claim had not yet been lodged.
13. On 20 February 2013 Mr Burgess wrote to Ms Velardi and enclosed a draft statement of claim and requested the filing fee. On or about 24 February 2013 Ms Velardi returned the draft statement of claim with certain amendments and signed the overarching obligation certificate and returned these documents to Mr Burgess with a cheque for the filing fee.
14. The writ and statement of claim in the Lederman matter was not filed until May 2013. The statement of claim was largely the same document as drafted by Mr Baker in August 2012.
15. On 14 May 2013 Mr Lederman's solicitors wrote to Mr Burgess and stated they were instructed to proceed with a strike-out application on the basis that the Lederman claim was statute barred.
16. In October 2013, Ms Velardi terminated Mr Burgess's retainer in the Lederman claim. In her witness statement, Ms Velardi states that Mr Burgess did not at any point during the course of his retainer inform her that the defendants had raised the issue of the claim being statute barred either in whole or in part.
17. The question of whether all or part of Ms Velardi's claim against Mr Lederman was statute barred was never adjudicated. After Ms Velardi engaged the services of other lawyers to take over the Lederman claim, the matter settled at mediation on 28 July 2014. Ms Velardi is bound by confidential terms and therefore unable to give details, however she has stated that she was very disappointed.

1. I am satisfied on the basis of the above that the facts as set out above are sufficient to sustain the charge. Clearly, Mr Burgess undertook little work on the Lederman claim between April 2011 until he briefed counsel on behalf of Ms Velardi in August 2012. The instructions received in April 2011 were to investigate and pursue the proceeding. I am satisfied that the lack of progress was due to Mr Burgess's undertaking little work between these dates. I am satisfied that Ms Velardi wished to proceed with the Lederman proceeding and that the lack of progress was due entirely to Mr Burgess's inactivity.

1. This is a charge of unsatisfactory professional conduct within the meaning of section 4.4.4(a) of the Act in that Mr Burgess failed to provide Ms Velardi with costs disclosure in respect to the MIS proceeding as required by section 3.4.9 of the Act.
2. Mr Burgess pleads guilty to this charge and it is found proven accordingly.

1. This is a charge that Mr Burgess is guilty of professional misconduct within the meaning of section 4.4.4(a) of the Act, in that he contravened section 3.4.27 of the Act in that the MIS conditional costs agreement:

(a) was not in writing, in clear and plain language and signed by the client; and

(b) did not set out the information required by sections 3.4.27(3)(a), (b), (e), and (d).

1. This charge is of a similar nature to charge 2, the difference being that it relates to the MIS matter instead of the Lederman matter.
2. I refer back to paragraphs 5, 6, 7, 8, and 9 of this decision.
3. Mr Burgess pleads not guilty to this charge and contends that the retainer in relation to this matter was not a no-win no-fee arrangement and therefore not the subject of a conditional costs agreement. In her witness statement, Ms Velardi states that during the initial conference between herself and Mr Burgess, Mr Burgess told her that he believed that she had a strong case against Graham Lederman and that he would like to take that case on a 'no-win, no-fee' basis but would have to run it by his partners and would then advise her of his final decision. Ms Velardi also states that during the course of that meeting she advised Mr Burgess that she also had a claim in New South Wales in which her company Dom Laudan Pty Ltd and herself were being sued by MIS Funding No. 1 Pty Ltd and that she asked whether Mr Burgess would also be willing to look after that matter on a 'no cost, no win fee' basis. She states that again, Mr Burgess told her that he would have to fun this past his partners and would advise her of his final decision. Later in her statement, Ms Velardi states that about a week later Mr Burgess contacted her and said that he and his partners had all agreed to take on both the Lederman claim and the MIS proceeding on a 'no win, no fee' basis. Ms Velardi continues that Mr Burgess did not give her anything in writing or ask her sign anything recording the agreement or about costs generally in relation to either the Lederman claim or the MIS proceeding.
4. Mr Burgess's statement states that he consulted with the partners and went back to Ms Velardi telling her that he would act for her on a no-win no-fee basis as discussed at the conference. In another part of his witness statement, Mr Burgess states that he did not tell Ms Velardi that his former firm would do 'these matters' no-win no-fee. This is not to say that he positively told her that he would not so act. Given that both the Lederman matter and the MIS matter were discussed at the first conference, I am satisfied that when Mr Burgess told Ms Velardi that he would act on a no-win no-fee basis, this referred to both matters. Mr Burgess's witness statement also points out that Ms Velardi was never charged anything by his former firm in relation to either matter, except for out of pocket expenses and counsel's fees and the fees in Stuart and Mills' first bill.
5. Paragraph 36 of Mr Burgess's witness statement, in referring to the MIS matter, states 'I do understand that even though the firm would have to charge scale and only if Lisa won, and would recover costs if Lisa was successful on the same scale, a written estimate of the firm's costs was something which Lisa ought to have had the benefit of'.

1. In Mr Burgess's supplementary witness statement he says as follows:

Secondly, I said in para 36, of Henderson and Ball's costs in the MIS matter in New South Wales, that I understand that in the absence of a costs agreement, the firm 'would have to charge scale and only if Lisa won'. I got mixed up about which matter I was speaking about. ... Mr Burgess continues that he did not agree to do the MIS matters on a no-win no-fee basis.

1. My assessment of whether or not this charge is proven comes down to whether or not I am comfortably satisfied to the normal civil standard of a balance of probabilities, taking into account matters of the kind mentioned in Briginshaw. Taking into account the evidence of Ms Velardi and Mr Burgess in this respect, I am satisfied that instructions were given by Ms Velardi in the MIS matter, and were accepted by Mr Burges on a no-win no-fee basis. I am also satisfied that the no-win no-fee basis constitutes a conditional costs agreement and that it was not in writing, in clear and plain language and signed by the client, nor that did it set out the information required pursuant to section 3.4.27 of the Act. Accordingly, I find the charge proved.

1. This is a charge alleging that Mr Burgess is guilty of unsatisfactory professional conduct within the meaning of section 4.4.4(a) of the Act in that he failed to provide Ms Velardi with costs disclosure in respect to the retainer of Stuart and Mills in the MIS proceeding as required by section 3.4.10 of the Act.
2. Paragraph 34 of the further amended application for orders alleges that on 29 April 2011, Mr Burgess wrote to Stuart and Mills Lawyers to have that firm act as Sydney agents and to seek to have the default judgment in the MIS proceeding set aside.
3. Paragraph 35 of the allegations states that in breach of section 3.4.10 of the Act, at no time did Mr Burgess provide Ms Velardi with the costs disclosure required in respect to the retainer of Stuart and Mills Lawyers.
4. Mr Burgess pleads guilty to this charge without qualification. Accordingly this charge is found proved.

1. Charge 7 alleges that Mr Burgess is guilty of professional misconduct within the meaning of section 4.4.3(1)(a) of the Act in that his conduct in respect to the MIS proceeding involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. The particulars relied upon are those set out in the following paragraphs of the Further Amended Application for Orders as set out earlier in this decision: paragraphs 1, 6, 7, 28, 29, 39-46, 51-64, 65-66, 67-83, 86, 87(d) and (e), 88-91, 95-101, 102(a)-(d), 104 and 108-117.
2. Mr Burgess pleads guilty to this charge but disputes facts.
3. By an order made on 17 November 2016, the Tribunal required Mr Burgess to file and serve 'an outline of argument which identifies in broad terms the issues for determination'. Mr Burgess did file and serve such a document which is headed 'Burgess's identification of issues in broad terms'. This document is dated 20 March 2017. The document contained the following qualification:

Where in this document I say I will not contest a particular charge, I may nevertheless give evidence in relation to matters which I consider to be of relevance to the charge, unless a statement of agreed facts is arrived at.

1. In relation to charge 7, this document contained a statement to the effect that Mr Burgess would not contest this charge because he acknowledges that he was responsible for failures amounting to professional misconduct to:

(a) Communicate appropriately with Stuart Mills between 10 August and 12 September 2011 (application paras 39-40 and 42-43);

(b) Communicate appropriately with Ms Velardi in July 2012 (paras 51, 53), and after the 23 August 2012 hearing (para 60), and in relation to non-achievement of Court ordered deadlines and non-appearances at directions hearings (102(d));

(c) Communicate appropriately with the Court in response to the 12 June 2013 callover form (paras 70, 71);

(d) Communicate sufficiently with Mr Kotros after the 16 July 2013 hearing (paras 87(d), (e), 88, 89);

(e) Progress and communicate adequately with Middletons about discovery (paras 54, 56, 57, 58) and mediation (paras 52, 56, 57, 58, 61, 62, 63);

(f) Communicate adequately with Middletons about witness statements (para 74, 79, 95) in a timely fashion;

(g) Attend, cause Ms Velardi to attend, or arrange representation at hearings on 23 August, 8 and 20 November 2012; and

(h) Agreeing to orders that Ms Velardi pay the costs of the 23 August 2012 hearing (even though it was always my intention to pay those costs personally) (para 63).

1. In this document, Mr Burgess foreshadowed that the following questions may arise:

(a) Did my former firm take steps to advise Ms Velardi of the 16 July 2013 trial date at an appropriately early juncture (paras 67, 69)?

(b) Did my handling of the information in relation to Ms Velardi's mental health between late Thursday 10 July and early Monday 15 July 2013 (application paras 80-83) amount to a failure to maintain a reasonable standard of diligence sufficient to justify professional discipline?

(c) In the context of the 11 July 2013 instructions that Ms Velardi was unfit to proceed with her trial, did my response to the instructions to brief Mr Kotros the previous day amount to a failure to maintain appropriate reasonable standard of diligence sufficient to justify professional discipline? (Paras 77, 78, 80)

1. The admissions made by Mr Burgess are, of themselves, together with his plea of guilty to this charge, sufficient to satisfy me that this charge is proved. However, for the sake of completeness, I now address the questions raised by Mr Burgess.
2. As to the question of whether Mr Burgess's former firm took steps to advise Ms Velardi of the 16 July 2013 trial date at an appropriately early juncture, I find that this question is irrelevant as it refers not to Mr Burgess but to his former firm.
3. However, for the sake of completeness it should be noted that in Ms Velardi's complaint she stated that in the first week of July 2013 Mr Burgess sent her a letter letting her know that the trial date was set for 16 July 2012 [sic] (two week's notice) and that he needed to brief a barrister which he estimated would cost around $10,000 and also included with his letter was an application form to apply for funding from Legal Aid. This assertion was repeated in Ms Velardi's witness statement. However, she further states that Mr Burgess's letter to her was dated 6 June 2013 but that she only recalls receiving the letter in the first week of July 2013. The copy of the letter in question which was included in the material produced to the Tribunal is dated 6 June 2013. In any case, I am satisfied that the hearing date of 16 July 2013 was fixed by orders made on 20 November 2012 and that Mr Burgess did not notify Ms Velardi of the trial date by any means prior to the letter dated 6 June 2013. I find that the delay in advising Ms Velardi of the trial date falls within the ambit of the charge and the finding.
4. The question of Mr Burgess's handling of the information in relation to Ms Velardi's mental health immediately prior to the anticipated hearing date, I note that this occurred within a very limited time frame. Ms Velardi's witness statement contains the following:

At this time I was under a considerable amount of stress. The respondent's failure to communicate with me exacerbated my stress levels which in turn contributed to my suffering depression. On or about 10 July 2013 I went to see my psychologist, Lawrence Hayden, as I was not emotionally well. Mr Hayden was concerned about my emotional state and told me that he did not believe that I was in any condition to prepare or appear at court.

The following day, being 10 July 2013 I contacted the respondent and advised him that my psychologist was of the opinion that I was not fit to prepare or appear at trial and that the respondent should seek an adjournment. I provided the respondent with the name and contact details of Mr Hayden.

1. Mr Hayden wrote a report dated 13 July 2013. This date was a Saturday.
2. On Monday 15 July 2013, Mr Burgess sent an email to the solicitors acting on behalf of MIS. Omitting formal parts, this email reads as follows:

I confirm that I have changed firms over the weekend.

Lisa Velardi has suffered a mental breakdown, such that she is not fit to attend Court and/or give instructions. In these circumstances, we have no option other than to seek an adjournment. Attached is a Psychologist report.

1. It should be noted that Mr Hayden's report concludes with the opinion that Ms Velardi 'is in no fit state mentally to appear in a Court of Law at this time'. No reference is made to Ms Velardi's capacity to give instructions. Indeed, contained within the report are the following observations:
   1. Perception:

This patient happens to have a clear and accurate perception of what has occurred, and as a result, overwhelming feelings of hopelessness as to the position she now finds herself in and an overwhelming feeling of not being able to cope with this in any way for the future.

Besides the sometimes possible distorted cognition of what has been done to her and what is being done to her, she has very good levels of consciousness, memory, orientation, concentration and abstract thoughts.

1. Given the proximity of this information being conveyed to Mr Burgess and the anticipated trial date, the receipt of information from Ms Velardi and her psychologist and the forwarding of that information to solicitors acting on behalf of MIS could not have been greater expedited by Mr Burgess. The question remains as to whether Mr Hayden's report goes so far as to provide an opinion that Ms Velardi was unable to give instructions. However, referring back to Ms Velardi's witness statement, it is clear that Ms Velardi advised Mr Burgess on 11 July 2013 that her psychologist was of the opinion that she was not fit to prepare for trial as well as not fit to appear at trial.
2. Preparation for trial must be seen in the context of the timetable which had been set and which had not been complied with. The time for preparation for a hearing was well in the past by 11 July. I am satisfied that Mr Burgess's assertion made to the solicitors acting on behalf of MIS that Ms Velardi was unable to give instructions was an attempt to cover up his previous inaction. Accordingly, I am satisfied that Mr Burgess's use of the information in relation to Ms Velardi's mental health during the period immediately before the trial date constitutes a failure to maintain a reasonable standard of competence and diligence.
3. On or about 10 July 2013 Ms Velardi advised Mr Burgess that Mr Kotros of counsel would appear for her at the trial pro bono. On the same day Mr Kotros emailed Mr Burgess asking him to confirm his instructions to appear and seeking a conference. Mr Burgess did not arrange a conference with Mr Kotros, send him a backsheet or respond to other emails from Mr Kotros. In the context of information concerning Ms Velardi's mental state, a conference was unlikely. However, I am satisfied that Mr Burgess made no attempt to arrange such a conference, thereby leaving the decision whether or not to proceed with the conference to Ms Velardi. I am satisfied that Mr Burgess took no steps to ensure that Mr Kotros was properly briefed to appear on behalf of Ms Velardi on 16 July 2013 save that on 15 July 2013 Mr Burgess forwarded to Mr Kotros the report of Mr Hayden. Mr Kotros states that Ms Velardi's case was not ready for trial. This is quite a separate issue from her ability to attend at the trial.
4. Mr Kotros appeared before Associate Justice Daly on 16 July 2013 and the trial dates were vacated. Mr Burgess did not attend. Mr Kotros' witness statement contains the following narrative:

The plaintiff's counsel indicated to the Court that the plaintiff would likely seek that its costs thrown away be paid by Mr Burgess personally, given the way he had conducted the matter (as set out in an affidavit filed by the plaintiff ...Her Honour indicated that the Court too had had some difficulties dealing with Mr Burgess. The Court reserved the question of Mr Burgess's liability for the plaintiff's wasted costs.

1. The question raised by Mr Burgess is whether in the context of the 11 July 2013 instructions that Ms Velardi was unfit to proceed with her trial, did his response to the instructions to brief Mr Kotros the previous day amount to a failure to maintain appropriate reasonable standard of diligence sufficient to justify professional discipline. The answer to this question is yes. I add that this is also to be viewed within the overall context of Mr Burgess's lack of attention to the conduct of the matter on behalf of Ms Velardi.

1. Charge 8 alleges that Mr Burgess is guilty of misconduct at common law within the inclusive definition of professional misconduct in section 4.4.3(1) of the Act, in that he drew, swore and filed the 1 August 2013 affidavit in circumstances where he:

(a) knew and intended that it would be relied upon by the Supreme Court;

(b) knew that its contents were false and/or calculated to mislead the Court as to whether or not between early June and 10 July 2013 he was without instructions and thereby created a false or misleading impression as to the true state of facts.

1. Mr Burgess pleads not guilty to this charge and disputes the jurisdiction of the Tribunal to hear this charge.
2. The basis of the challenge to the Tribunal's jurisdiction to hear this charge is that he contends that there was no complaint made about the contents of the affidavit or its use and the 1 August 2013 hearing.
3. It is clear that the Commissioner did not commence an own motion investigation. Accordingly, the question is whether the contents of the 1 August 2013 affidavit come within the ambit of the complaint made by Ms Velardi.
4. Mr Burgess contents that the application stated that Ms Velardi did not know what was in Mr Burgess's affidavit and made no complaint about its contents or its use at the 1 August 2013 hearing.
5. The following is extracted from Ms Velardi's complaint to the Commissioner:

I instructed Andrew to seek an adjournment on Friday 12th July and he did not do this until late afternoon of 15th July or the morning of 16th July.

The day before the trial was to commence, I called Andrew Burgess only to find that he had left his firm and the receptionist gave me his new number. I called Andrew in a panic - he apologised for not calling me as he was busy setting up his new practice.

My Barrister, although with no instruction from Andrew Burgess, did appear for me in Court on 16th July and I was granted an adjournment. All parties were asked to return to Court on 1st August to agree on costs and to reschedule a trial date. It wasn't until my Barrister contacted me via email and telephoned later that day after Court, was I aware of all the matters that Andrew ignored and failed to comply with. The solicitors for the plaintiff believed that Andrew Burgess should be the one to pay the costs for the day of 16th July as Andrew failed on almost all occasions to reply to correspondence, turn up to directions hearing etc. This was all noted in an affidavit submitted to the Court by the solicitors for the plaintiff on 16th July. I was horrified and disgusted and extremely upset by what I just discovered. I called Andrew Burgess and asked if there was anything he should be telling me or anything that I should know given that the solicitors for the otherwise were seeking Andrew to pay the costs. He told me that it was ridiculous that costs should be awarded against him firstly and that he would sort it all out on the 1st August. Andrew did attend on the 1st of August and of course submitted his affidavit, which I have to date not seen and he had the costs awarded against him.

1. The subject of Ms Velardi's complaint in this regard is clearly the conduct of Mr Burgess which led to an award of costs against Ms Velardi. Reference is made to the affidavit of 1 August 2013. Despite no specific knowledge of the contents of the affidavit, Ms Velardi made a complaint concerning the course of action by Mr Burgess, including submitting the affidavit. The reference to the affidavit is sufficient to bring an examination of its contents within the ambit of an investigation by the Commissioner into the course of action. The veracity or falsity of the contents of the affidavit is validly the subject of the investigation.
2. I am satisfied that this was not an entirely new matter being investigated, nor was it the subject of an own-motion investigation by the Commissioner.
3. The view of the Commissioner regarding the affidavit was set out in his Murray letter dated 12 June 2015.
4. Paragraph 83 of the Commissioner's Murray letter is as follows:
   1. In my view, your sworn evidence in the affidavit of 1 August 2013 regarding your inability to obtain instructions from Ms Velardi between early June and 10 July 2013 is inconsistent with our sworn evidence in the affidavit of 28 January 2014 and the material on your files. Given that you say you spoke to Ms Velardi 'on many, many occasions' and in light of the content of your files - including an explicit reference in your letter of 27 June 2013 to receipt of instructions from Ms Velardi - it appears to me that your affidavit evidence of 1 July 2013 was false and/or calculated to mislead the Court. It is in my view clear that you communicated with Ms Velardi during this period and that you had every opportunity to obtain instructions from her, and that in fact you did receive instructions from her.
5. I conclude that the contents of Mr Burgess's affidavit of 1 August 2013 is validly within the subject matter of Ms Velardi's complaint and, accordingly the Tribunal has jurisdiction to hear this charge.

1. Omitting head and formal parts, the affidavit is as follows:

1, ANDREW THOMSON BURGESS of Level 13, 200 Queen Street, Melbourne in the State of Victoria Lawyer make oath and say as follows:

1. I am a lawyer in the firm D B Legal, and have the care, conduct and control of this matter on behalf of the Defendants.
2. During the period early June - 10 July, 2013 I was without instructions to brief Counsel for the trial of this proceeding listed on 16 July, 2013, or to prepare for trial, including preparation of witness statements.
3. I eventually received instructions on 10 July, 2013 to brief Nicholas Kotros, barrister, to appear for the Defendants.
4. The Second Defendant telephoned me on 11 July, 2013 and gave me instructions for the first time that she had seen a psychologist on the previous day, and she was mentally unfit to attend at trial and give proper instructions. I then spoke with the psychologist, Lawrence Hayden, and asked him to urgently provide me with a repot as to the Second Defendant's mental state. However, I did not receive his report until 15 July, 2013, whereupon I immediately sent copies to Nicholas Kotros and also the Plaintiff's lawyers. Now produced and shown tome and marked "ATB 1" in the report I received.
5. I spoke with the Second Defendant on a number of occasions over the next 2 weeks, and I asked her repeatedly to have Lawrence Hayden forward his updated report, so that an Affidavit could be prepared for filing with the court by 29 July, 2013. Although I left a number of telephone messages, I was not able to speak with Lawrence Hayden until 29 July, 2013, and he said that he would send his further report.
6. Despite further messages, and a telephone conversation with Lawrence Hayden on 30 July, 2013 in which I told him of the extremely-urgent need for his report, I only received his further report at 4.10 pm on 31 July, 2013. Now produced and shown to me and marked "ATB 2" is a true copy of the further report I received.
7. The Defendants gave consent to Orders made herein on 28 March, 2013, for the Plaintiff to file and serve an Amended Reply, and deferring the dates for witness statements to 8 may, 2013 and a draft index for the Court Book to 14 June, 2013. I received a witness statement of Stephen William Arrowsmith from the Plaintiff's lawyers on 4 June, 2013, a witness statement of Anita Suk Fan Fung on 14 June, 2013, and a witness statement of Justin Richard Came on 20 June 2013. A draft Court Index Book was received on 17 June, 2013.
8. Mr Burgess gave evidence that his statement contained in the affidavit that during the period early June - 10 July 2013 he was without instructions to brief counsel for the trial of the proceeding listed on 16 July 2013 or to prepare for trial, including preparation of witness statements was 'shorthand' for the fact that he was without funds. Mr Burgess further maintained in evidence that this was a common term used by the legal profession to indicate to a court that a practitioner was not in funds to enable progression of a proceeding. I reject this contention, both in terms of whether it was a term of common usage to indicate a lack of funds and on the basis that it went nowhere near explaining the true situation.
9. There is an old saying: 'half a truth is as good as a lie'. The statement in Mr Burgess's affidavit that he was without instructions 'to prepare for trial, including preparation of witness statements' belies the fact that Mr Burgess had taken no steps to prepare for trial, including preparation of witness statements. The affidavit seeks to camouflage Mr Burgess's complete inactivity in relation to the preparation of the matter for trial. I am satisfied that Mr Burgess knew and intended that the affidavit would be relied upon by the Supreme Court and that he knew that its contents were false and were calculated to mislead the Court. I am satisfied that the affidavit created a false and misleading impression as to the true state of facts.
10. I find Mr Burgess guilty of this charge.

1. Charge 9 alleges that Mr Burgess is guilty of professional misconduct within the meaning of section 4.4.4(a) of the Act in that, in breach of Rule 9.1 of the Rules, he allowed his interests to conflict with the client's interests in respect to the application made for costs thrown away in the MIS proceeding.
2. Mr Burgess pleads guilty to this charge but disputes the facts.
3. The findings in relation to the previous charge are sufficient to satisfy me that this charge is made out.

1. This charge relates to a complaint from Mrs Margaret Wallin that she had been provided with inadequate costs disclosure in respect to two matters:

(a) a sale of a property at 75 Princess Street Kew (the conveyancing matter); and

(b) a dispute with Mrs Wallin's architect (the dispute matter).

1. The charge alleges that Mr Burgess is guilty of unsatisfactory professional conduct within the meaning of section 4.4.4(a) of the Act in that he failed to provide Mrs Wallin with costs disclosure in respect to the conveyancing matter as required by section 3.4.9 of the Act.
2. The substance of Mrs Wallin's complaint is that on or about 23 January 2012, she engaged Mr Burgess to act for her in respect to the conveyancing matter and that on or about the same date he gave her an oral costs estimate of $1,200 in relation to that matter. The complaint also alleges that on 31 January 2013 Mr Burgess caused a bill to be sent to Mrs Wallin in respect to the conveyancing matter for $1,079.05 and that at no time had he provided her with a costs disclosure required by section 3.4.9 of the Act.
3. Mr Burgess states in his witness statement: 'Mrs Wallin asked me how much a full conveyance of a property she was hoping to sell would cost. I don't remember if I told her that it would cost about $1,200, but that is quite possible: that is about what Henderson and Ball was charging, inclusive of disbursements at that time. Given that Mrs Wallin says I did so, I suppose that is more likely than not.'
4. Mr Burgess's witness statement continues at paragraph 84: 'She asked me urgently to prepare just a short form vendor's statement for the property for the purposes of a private sale she hoped to achieve. The firm did not give any written disclosure. I was not going to charge $750 or more for the short form vendor's statement which I completed within a day or two, and the sale did not eventuate, as I learnt not long after I was first instructed. I assumed that the retainer was over at that time and would have felt quite entitled to send a final bill but I did not get around to it.'
5. The tax invoice dated 31 January 2013 that was sent to Mr and Mrs Wallin carries the notation that the solicitor and contact were both Andrew Burgess. The account details are set out as follows:

To our professional costs including instructions, attending you in conference 23 July 2012 discussing title search, urgently preparing a contract of sale and forwarding to you, all attendances upon the agent discussing the architect's threats, instructions for auction, applying for all usual certificates, attending you, discussing building plans, preparing the auction contract and forwarding to your agents, perusing letter from Robert James Lawyer, letter to you advising, and all care skill and attention. The professional fees outlined in the tax invoice amount to $900 and disbursements of $89.05.

1. Having regard to the items set out in the tax invoice, it is clear that the instructions given by Mr and Mrs Wallin went beyond merely the production of a vendor statement. It is equally clear that the costs in relation to the items carried out easily would exceed $750. The costs disclosure obligation imposed by the Act relates not only to initial disclosure but also ongoing disclosure. Clearly, Mr Burgess failed to make the disclosure required by the Act. This is a classic example of a situation which demonstrates the need for proper costs disclosure.
2. I find that Mr Burgess failed to give costs disclosure as required by the Act and find this charge proved accordingly.

1. This charge alleges that Mr Burgess is guilty of professional misconduct within the meaning of section 4.4.4(a) of the Act in that he contravened section 4.4.11 of the Act by failing to comply at the required time with the Commissioner's requests for Mr Burgess's file in respect to the dispute matter in that the request was made originally on 22 October 2013 and not complied with until 6 May 2014.
2. Mr Burgess pleads not guilty to this charge and disputes the Tribunal's jurisdiction.
3. Mr Burgess asserts that there was no investigation of the subject matter of Charge 11 prior to the repeal of the 2004 Act and therefore no right or obligation to be preserved by section 14(2) of the Interpretation of Legislation Act. He further contends that the right which the Commissioner says was preserved by section 14(2) accrues only following an investigation. He argues that since there was no investigation, the right to bring a disciplinary prosecution did not accrue. Mr Burgess contends that the Commissioner accrued no right and no obligation under the 2004 Act, prior to its repeal which could be preserved by section 14(2) of the Interpretation of Legislation Act to prosecute Mr Burgess for professional misconduct by failing to inform the Supreme Court of 'the whole truth, because he never investigated that prior to the 2004 Act's repeal and only formed the opinion on which the 'right' or the obligation' contended for by the Commissioner depended in relation to the making of a knowingly misleading statement to the Court. Again, I am satisfied that the requirement for Mr Burgess to produce his files was made in the course of the investigation of a complaint and that the requirement was validly made. I am also satisfied that Mr Burgess failed to respond to the requirement within the required period. Accordingly, I find this charge proven.