Victorian Legal Services Commissioner v Burgess (Legal Practice) [2019] VCAT 76

1. In relation to charges 8 and 9, the respondent's practising certificate is cancelled with effect from 1 February 2019 and he is disqualified from obtaining a practising certificate for a period of two years from 1 February 2019.
2. The respondent is to pay compensation in the sum of $8,666.67 to Elizabeth Velardi.
3. In relation to charges 1, 2, 3, 4, 5, 6, 7 and 10 the respondent's practising certificate is cancelled with effect from 1 February 2019 and he is disqualified from obtaining a practising certificate for a period of six months from 1 February 2019, concurrent with the period of disqualification in relation to charges 8 and 9.
4. In relation to charge 11 the respondent is to pay a fine of $2,000.00 to the Victorian Legal Services Board.
5. The respondent is to pay the applicant's costs of this proceeding, including witness expenses, on a standard basis on County Court Scale, to be assessed by the Costs Court in default of agreement.

1. On 5 June 2018, the respondent (Mr Burgess) was found guilty of 11 charges[1]. Subsequently, a series of written submissions was received from the parties on the questions of penalty and compensation pursuant to a timetable set by order of the Tribunal.
2. Amongst the submissions received were some relating to subjects irrelevant to the questions of penalty and compensation. These submissions have not been considered in the context of determining penalty and whether a compensation order should be made.

1. Of the 11 charges, the two most serious charges were charges 8 and 9. Charge 8 is that Mr Burgess swore and filed an affidavit with the Supreme Court of Victoria where he knew and intended that it would be relied upon by the Supreme Court and where he knew the contents of the affidavit were false and/or calculated to mislead the Court. Mr Burgess was found guilty of professional misconduct at common law in relation to this charge. Charge 9 is that Mr Burgess allowed a conflict of his own interest and that of his client, Ms Vellardi, in relation to an application for costs thrown away in the Supreme Court matter in which Mr Burgess filed the affidavit referred to above. Mr Burgess was found guilty of professional misconduct in relation to this charge. The remaining charges will be dealt with below.

1. Mr Burgess has a long and deplorable history of previous misconduct spaning the period 2000 to 2014 involving:

1. 11 previous findings involving delay, failing to communicate with clients or others, failing to provide costs disclosure and failures of competence and diligence; 2. a previous internal finding in respect to a conflict of interest; and

1. seven previous occasions of failing to comply with the requirements from the applicant for the provision of explanations and/or files in regard to complaints against him.
2. Mr Burgess's previous encounters with the profession's regulatory regime indicate that his approach to practice is flawed and that it has remained so over a substantial period.

1. I am prepared to accept that throughout this period Mr Burgess has suffered from depression, which I take into account in relation to all charges with the exception of Charges 8 and 9.
2. In the later stages of the chronology of conduct which I the subject of the present charges and findings, Mr Burgess's personal and professional relationships disintegrated, no doubt exacerbating his depression.

1. This is a most serious matter. The first duty of legal practitioners is to the Court. That duty encompasses a duty of candour and, in particular, a duty not to mislead the Court. The judicial system relies on being given true facts by legal practitioners and not having anything concealed. There is a requirement of complete accuracy. Mr Burgess failed in maintaining these duties. I am not satisfied that Mr Burgess's depression was a factor in relation to this conduct.
2. In relation to this charge, there is a need for both specific and general deterrence together with protection of the public and protection of the reputation of the profession. All of these factors can also be seen in the context of protecting the judicial system.

1. It is well established that legal practitioners cannot allow their own interests to interfere with those of their clients. This is particularly so where the conflict occurs within the context of Court proceedings.
2. The conflict arising out of Mr Burgess's actions is intertwined with the making of the misleading affidavit in the context of whether costs thrown away ought to be borne by Mr Burgess or his client.
3. The same considerations in relation to this charge indicate the need for both specific and general deterrence together with protection of the public, protection of the reputation of the profession.
4. It should be noted that Mr Burgess defended Charge 8 to the conclusion of the hearing and, accordingly is not entitled to any credit for remorse or recognition of the improper nature of his conduct. Mr Burgess has displayed no contrition in relation to this charge.
5. The conflict of interest charge was the subject of a plea of guilty but Mr Burgess disputed the facts alleged. The plea of guilty was not entered early in the proceeding. Mr Burgess gets limited credit in this respect.

1. I am satisfied that Charges 8 and 9 arise from a single course of conduct and that they, therefore, can be dealt with globally. In relation to these charges Mr Burgess's practising certificate is cancelled with affect from 1 February 2019, he is disqualified from obtaining a practising certificate for a period of two years from 1 February 2019 and he is to pay the applicant's costs in relation to the proceeding insofar as it relates to these two charges.

1. I am satisfied that Mr Burgess's conduct resulted in a loss of $8,666.67 by Mr Vellardi in relation to the MIS proceeding. I am satisfied that it is appropriate that Mr Burgess pay that sum to Ms Velardi by way of compensation.

Substantial/consistent failure to reach/maintain reasonable standard of competence/diligence

1. Charges 1 to 7 and Charge 10 may be grouped as 'incompetence charges'. I am prepared to take into account Mr Burgess's depression in relation to these charges. I am satisfied that Mr Burgess generally paid little attention to the details of his obligations in relation to costs disclosures and that he did not pay full and proper attention to attending to matters on behalf of his clients. I accept that Mr Burgess has a long-term behavioural pattern and that his psychological state should be taken into account in relation to this pattern of behaviour. However, in relation to the requirements concerning conditional costs agreements, Mr Burgess's evidence was that he was ignorant of the requirements. This ignorance is no excuse as Mr Burgess, along with all other legal practitioners, is under a duty to become familiar with the requirements and to comply with them.
2. I am particularly concerned that Mr Burgess has a long and deplorable history of similar behaviour. This indicates that he has done little to address the shortcomings of his mode of practice.
3. I am satisfied that it is appropriate to regard the 'incompetence of charges' as a course of behaviour capable of being dealt with by way of global disposition. In relation to these charges, Mr Burgess's practising certificate is cancelled with effect from 1 February 2019 and he is disqualified from obtaining a practising certificate for a period of six months from that date, concurrent with the period of cancellation in relation to Charges 8 and 9. Mr Burgess is to pay the applicant's costs in relation to these charges.

1. This charge relates to Mr Burgess's failure to provide his file to the applicant when requested to do so. This failure persisted between 22 October 2013 and 6 May 2014. This failure inhibited the applicant's ability to investigate complaints made against Mr Burgess. It is a statutory duty of all legal practitioners to comply with such requests. Mr Burgess has failed to comply with requirements for the provision of explanations and/or files in relation to complaints against him on seven previous occasions. This indicates a need for specific deterrence. Mr Burgess is to pay a fine of $2,000 to the Victorian Legal Services Board in relation to this charge and is also to pay the applicant's costs in relation to this charge.

1. For the avoidance of uncertainty, Mr Burgess is to pay the applicant's costs of this proceeding, including witness expenses, on a standard basis on the County Court Scale, to be assessed by the Costs Court in default of agreement.

[1] Victorian Legal Services Commissioner v Burgess (Legal Practice) [2018] VCAT 873.