The Tribunal finds the respondent, Denis O'Brien guilty of misconduct at common law within the inclusive definition of professional misconduct in section 4.4.3(1) of the Legal Profession Act 2004 (the Act), in that he has engaged in conduct that would be reasonably regarded as disgraceful and dishonourable by professional colleagues of good repute and competency.

By 11 July 2016, the parties are to provide available dates for a hearing on the determinations to be made, proposed orders for provision of any written submissions before the hearing and an estimate of the time required for the hearing.

1. Mr Denis O'Brien is a legal practitioner and partner in the firm of O'Brien Lawyers in Horsham, Victoria.
2. The Victorian Legal Services Commissioner alleges that Mr O'Brien, by his conduct on 28 March 2014, is guilty of professional misconduct under the Legal Profession Act 2004 (the Act) - either misconduct at common law, or, in the alternative, professional misconduct by contravention of rule 30.1.1 of the Professional Conduct and Practice Rules 2005 (the 2005 Rules).
3. On 28 March 2014, Mr O'Brien made a decision to prepare and sign seven withdrawals of caveat for the purpose of property settlements that took place through the course of that day, even though he acted for the vendor not the caveator, and even though the caveator's solicitor had refused to provide withdrawals of caveat to him, except at settlement and in exchange for payment of the caveator's share of the proceeds of sale.
4. The withdrawals of caveat signed by Mr O'Brien were subsequently provided to the Registrar of Titles and then registered. The caveator's solicitor lodged a complaint with the Commissioner about Mr O'Brien's actions.
5. After an investigation, the Commissioner applied to the Tribunal for findings and orders under the Act. These reasons relate to the findings to be made about Mr O'Brien's conduct. There will be a subsequent hearing about any orders to be made by way of determinations.
6. In this proceeding, Mr O'Brien admits that he prepared and signed the withdrawals of caveat but not the allegations about his state of mind at the time he signed the withdrawals of caveat. He does not admit:
   • That he knew or was reckless as to the fact that he did not have the caveator's authority to execute withdrawals of caveat and provide them to the purchasers or their agents at settlement
   • That he signed next to the words "signature of agent being an Australian Legal Practitioner..." on the withdrawals of caveat and caused to be produced to the Registrar of Titles a document which he knew contained a false statement and/or was misleading
   • That he engaged in conduct that was dishonest, in breach of rule 30.1.1 of the Rules.
7. He says that at the time he signed the withdrawals of caveat he had an honest, if mistaken belief that as he was an Australian Legal Practitioner, he was entitled to sign the withdrawals.
8. Mr O'Brien also disputes that the conduct can be characterised as misconduct at common law or professional misconduct, and says that it should be characterised as no more than unsatisfactory professional conduct in the particular circumstances in which he found himself.
9. He accepts that signing the documents was an error of judgement and concedes it was a lapse in adherence to the required standard of conduct, but says that he found himself in an impossible position and signing the withdrawals of caveat appeared to be the only course available.
10. Through his legal representatives Mr O'Brien maintained that to properly characterise his conduct all the circumstances needed to be considered, including the conduct of the other solicitor. His Counsel submitted that the Commissioner ought to have called Mr Lucas, the solicitor for the caveator, and required production of his file; that Mr O'Brien was prejudiced by the Commissioner not doing so and an inference ought to be drawn from the fact that the Commissioner did not do so.
11. Counsel on behalf of the Commissioner submitted that the circumstances may be relevant as mitigating factors to be taken into account on determinations, but that whatever the difficulties Mr O'Brien found himself in, his conduct was properly characterised as professional misconduct; in any event all the relevant correspondence between the two firms was in evidence, any additional evidence from Mr Lucas would not be relevant as this proceeding is about Mr O'Brien's conduct, not Mr Lucas' conduct, and Mr O'Brien was free to call Mr Lucas or summons his file if he wished.
12. I discuss those submissions in more detail later in this reasons.
13. The Commissioner relied on the facts and documents admitted by Mr O'Brien and the evidence given in cross-examination by Mr O'Brien and Ms Christine Walsh.
14. Mr O'Brien made a witness statement, gave additional evidence and was cross-examined. He also relied on:
    • Witness statement of Christine Walsh, his senior law clerk, dated 9 December 2015. Ms Walsh gave additional evidence in chief and was cross-examined
    • Witness statement of Geoffrey Gronow dated 11 December 2015
    • Witness statement of Russell Cocks dated 29 November 2015
15. Both parties made submissions.
16. For the detailed reasons which follow, I am satisfied to the required degree that Mr O'Brien has engaged in professional misconduct within the inclusive definition in section 4.4.3(1) of the Act, in that he has engaged in conduct that would be reasonably regarded as disgraceful and dishonourable by professional colleagues of good repute and competency.
17. Because the charges were in the alternative, I do not need to make express findings about whether his conduct was in breach of the rule against dishonest conduct. I am satisfied however that in executing the withdrawals of caveat and causing them to be provided to the purchasers or their agents at settlements, he acted deliberately, with a reckless disregard of or indifference to whether it was true or false that he was an agent of, solicitor for or otherwise had the authority of the caveator to sign the withdrawals of caveat. In respect of the last settlement on 28 March 2014, I am satisfied that he knew before that settlement took place, if he did not know before, that he did not have the authority of the caveator to sign the withdrawal of caveat.
18. In characterising his conduct as professional misconduct I have taken account of the circumstances, including Mr O'Brien's evidence about the difficulties he faced, and his belief that he had no other option and was justified in taking the course he took. I am satisfied, however, that not only did he have a choice, but also that no matter how difficult the circumstances, no legal practitioner is justified in doing what Mr O'Brien did.
19. Having made the findings which follow, there will be a separate hearing in relation to the determinations to be made.
20. I turn now to the charges brought by the Commissioner.

Professional misconduct at common law and within the meaning of [those words] in section 4.4.3(1) of the Act by engaging in conduct that would be reasonably regarded as disgraceful and dishonourable by professional colleagues of good repute and competency in that the respondent:

1. Executed Withdrawals of Caveat and provided them to the purchasers (or their agents) at settlements for the Property when he knew (or was reckless as to that fact) that he did not have the caveator's authority to do so and in the knowledge that the Caveator refused to provide the Withdrawals for settlement;
2. Signed next to the words 'S_ignature of agent being an Australian Legal Practitioner (within the meaning of the Legal Profession Act 2004_)' on the withdrawals of caveat and cause to be produced to the Registrar of Titles a document which the respondent knew contained a false statement and/or was misleading.

Alternatively to charge 1 above, professional misconduct within the meaning of section 4.4.4(a) of the Act by reason of the Respondent contravening rule 30.1.1 of the Professional Conduct and Practice Rules 2005.

30.1 A practitioner must not engage in conduct, whether in the course of practice or otherwise, which is:

1. In paragraphs 24 - 26 of the Application for Orders, the Commissioner alleges that:
   • At the time Mr O'Brien signed the seven withdrawals of caveat he knew (or was reckless as to that fact) that he did not have authority to sign the withdrawal of caveats as he was neither the agent nor legal practitioner for the caveator.
   • By executing the withdrawal of caveats knowing (or being reckless as to that fact) that he was doing so without the authority of the caveator and causing them to be handed over at settlement, and doing so in the knowledge that the caveator refused to provide the withdrawals at settlement, Mr O'Brien caused to be produced to the Registrar of Titles a document which Mr O'Brien knew contained a false statement and/or was misleading.
   • In those circumstances, Mr O'Brien contravened rule 30.1.1 of the 2005 Rules.

1. Under s.4.4.3(1) of the Act, for the purposes of the Act professional misconduct includes:
   • 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
   • Conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in 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.
2. Misconduct at common law, which is within the inclusive definition of professional misconduct in s.4.4.3(1), has been defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency.[1]
3. Conduct that amounts to gross negligence or recklessness may fulfil the common law definition of misconduct.[2]
4. Section 4.4.4 of the Act sets out conduct that is capable of constituting either unsatisfactory professional conduct or professional misconduct. Such conduct includes, under s.4.4.4 (a), a contravention of the Act, the regulations or the Rules. As noted above, the Commissioner alleges that Mr O'Brien contravened rule 30.1.1 of the 2005 Rules, which provides that a practitioner must not engage in conduct, whether in the course of practice or otherwise, which is dishonest.
5. As the Commissioner submitted, it is settled law that reckless conduct may be dishonest. In Fidock v Legal Profession Complaints Committee [2013] WASCA 108, at [94] Martin CJ observed as follows:

The observations of Lord Herschell in Derry v Peek were adopted in Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 [113], and in Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262 [2] by Gummow, Hayne and Heydon JJ. In Banditt [2] their Honours said that to sustain an action in deceit, it must be shown that the false representation was made (1) knowingly, (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. But (3) is but an instance of (2), because one who makes a statement under the circumstances in (3) can have no real belief in the truth of what he or she states.[3]

1. Recklessness implies that the possible consequences that may follow from an act are adverted to by the actor but 'he is indifferent to whether those consequences occur or not'.[4]
2. The test is subjective, not objective. In order to have recklessly made a false statement, the practitioner must be aware of the risk that the statement is false, but nevertheless makes it 'not caring in the man's own heart and conscience whether it was true or false'.[5]
3. As Martin CJ observed in Giudice v Legal Profession Complaints Committee:[6]

A reckless disregard or indifference involves, at least, a subjective element of actual conscious disregard of or indifference to the risks created by the conduct...

[In observing that these matters are subjective - concerned with the practitioner's actual state of mind] 'conscious disregard'... connotes that the appellant wilfully or deliberately shut his eyes to, or excluded from contemplation, the risk that the statement was untrue or false.

1. In disciplinary proceedings in which the allegations are serious, which these are, the Tribunal's approach to the proof of the allegations is that set out in Briginshaw v Briginshaw.[7]
2. The following passages from Briginshaw[8] articulate the relevant principles:

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.

No doubt an opinion that a state of facts exists may be held according to infinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal.

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an 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.

In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

1. It is well accepted that Briginshaw did not create a different standard of proof for serious allegations in civil cases.[9] But a finding that a person has engaged in fraudulent, criminal or other serious conduct should not be made lightly - it should not be based on 'inexact proofs, indefinite testimony or indirect inferences'. As Rich J observed at p 350:

The nature of the allegation requires as a matter of commonsense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the Tribunal has reached both a correct and just conclusion.

1. In his response to a Notice to Admit Facts, Mr O'Brien admitted the facts set out in the Appendix to these reasons, and the authenticity of the documents relied on by the Commissioner. Where his admission was qualified I have indicated the qualification or additional statement in italics in the Appendix.
2. The uncontentious background circumstances are that:
   • Mr O'Brien's client Margaret Hennessy was the vendor of property, which had been sold under Terms of Settlement of County Court proceedings, with multiple settlements taking place on 28 March 2014.
   • Mr O'Brien held a Power of Attorney for Mrs Hennessy, who was in a nursing home at the time, and acted for her in the proceedings, which had been brought by her son Mark Hennessy as plaintiff against her, her grandson Everton Hennessy, and the Registrar of Titles as defendants.
   • Mrs Hennessy's last will at the time named her grandson Everton as sole beneficiary, and she had also executed a transfer of land to him.
   • Mark Hennessy claimed an interest in the land and had lodged a caveat over the property. The firm Saines Lucas acted for Mark Hennessy in the proceedings and in the conveyancing transactions.
   • Everton Hennessy had also lodged a caveat, and was represented by Stratmann & Co. Mr O'Brien's firm had also lodged a caveat to protect its interests under a charge in relation to costs.
   • Under the Terms of Settlement, the parties agreed that the property would be offered for sale; and 'from the net proceeds of sale at the settlement of the sale of the property the proceeds of sale' would be divided according to paragraph 8 of the Terms. After payment of certain costs, commissions, fees and accounts, Mrs Hennessy was to receive $50,000 and the balance of the funds were to be divided 40% to Mark Hennessy and 60% to Everton Hennessy. Mr O'Brien had the conduct of the sale and responsibility to distribute the proceeds of sale.
   • Although the Terms of Settlement provided for sale of the property as a single allotment, the agent appointed under the terms advised dividing the property into five separate parcels, one being further divided into two, hence the need for multiple withdrawals of caveat. The Terms of Settlement did not cover that eventuality. There were also multiple purchasers making settlement relatively more complex.
   • In the period leading up to the settlement date of 28 March 2014, a dispute arose between Mr O'Brien and Mark Hennessy's solicitor about Mr O'Brien's costs of the County Court proceeding and the conveyances. Under the Terms of Settlement, the costs were to be assessed by the Law Institute Costing Service and paid from the proceeds of sale subject to a cap of $80,000 and $4,000 respectively.
   • In the days immediately before settlement, Mr O'Brien had made repeated demands in writing of Saines Lucas for the withdrawals of caveat to be provided by 9.30am on the day of settlement so that the settlements could proceed over the course of the day (the first was booked for 10am).
   • Saines Lucas, as solicitors for Mark Hennessy as caveator, repeatedly refused to provide the withdrawals before settlement; and stated in correspondence that they would not provide them until certain information had been provided and except in exchange for a bank cheque representing their client's share of the proceeds of sale.
   • The solicitors for Everton Hennessy as caveator provided withdrawals of caveat the afternoon before settlement day.
   • The settlements were to take place at Mr O'Brien's office, administered by his conveyancing clerk, Ms Christine Walsh.
   • By the morning of settlement day, the dispute remained unresolved and the two solicitors appeared to have reached stalemate. At about 8.45am Saines Lucas sent a facsimile, re-iterating the view that the Terms of Settlement provided for payment to Mark Hennessy at settlement and advising that they would not attend settlement that day without receiving a bank cheque. There is a dispute as to whether and when Mr O'Brien saw it.
   • Mr O'Brien arrived at work at about 9.30am.
   • At 9.59am and 10.02 respectively Mr O'Brien sent a facsimile to Saines Lucas' Ballarat and Horsham offices, stating that as the last of the settlement statements had only been received late on the day before, it had been impossible to calculate the figures to be allocated to the parties. The facsimile gave notice that to avoid the consequences of being in breach of the terms of the contract of sale 'we will prepare and provide Withdrawals of Caveat (7) in relation to Caveat AH769043J'.
   • At some time after 10.00am Mr O'Brien signed seven withdrawals of caveat next to the words 'signature of agent being an Australian Legal Practitioner (within the meaning of the Legal Profession Act 2004).
   • The settlements proceeded over the course of the day and at each one a withdrawal of caveat signed by Mr O'Brien was provided to the purchaser or the purchaser's solicitors.
   • At about 12.30pm, Mr O'Brien received a facsimile from Saines Lucas, marked "Urgent' stating that:
     • 'Your office is not authorised to prepare the Withdrawals of Caveat on behalf of our client and of course you are not authorised to execute the Withdrawals of Caveat on behalf of our client.
     • Our client now holds your client and your Mr O'Brien in breach of the Terms of Settlement.'
   • Shortly before 1pm Mr O'Brien sent a facsimile to Saines Lucas advising that all but one of the settlements had been effected and 'to avoid breaching the remaining Contract, we propose to complete the final settlement'.

1. I make a number of preliminary findings on the basis of the admitted facts and documents.
2. Mr O'Brien did not act for Mark Hennessy, the caveator.
3. To Mr O'Brien's knowledge, the firm of Saines Lucas acted for Mark Hennessy before, at the time and after Mr O'Brien executed the withdrawals of caveat.
4. The Land Victoria withdrawal form, used by Mr O'Brien, provided for signature as follows:

Signature of agent being an Australian Legal Practitioner (within the meaning of the Legal Profession Act 2004)

1. Mr O'Brien was not the caveator, nor was he solicitor or agent for the caveator.
2. By his signature and stamp next to the words above on the withdrawals of caveat Mr O'Brien represented that he was either the caveator, an agent who was an Australian legal practitioner, or an agent of the caveator on some other basis.
3. That representation was false.
4. The withdrawals of caveat were signed by Mr O'Brien for the purpose of the settlements due to take place over the course of the day, and which in fact took place, and were given to the purchasers or their agents at those settlements in exchange for purchases monies.
5. The withdrawals of caveat executed by Mr O'Brien were in turn provided to the Registrar of Titles and registered.

1. The Commissioner alleges that at the time Mr O'Brien signed the withdrawals he knew that he had no authority from the caveator, or was reckless as to that fact, and he knew the withdrawals he caused to be produced to the Registrar of Titles contained a statement that was false and/or misleading.
2. Mr O'Brien says that he made an honest mistake: he mistakenly believed that he could sign the withdrawals because he was an Australian legal practitioner, and did not turn his mind to the question of authority.
3. Mr O'Brien's state of mind on 28 March 2014 is relevant to both of the charges. In particular, his state of mind:
   • at the time he instructed Ms Walsh to prepare withdrawals of caveat;
   • at the time he executed the seven withdrawals of caveat for the purpose of settlements that day; and
   • prior to the last settlement, after had he received Mr Lucas' facsimile sent at around midday [TB 103].
4. Before turning to the evidence relevant to Mr O'Brien's state of mind, I discuss the submission on his behalf that Mr O'Brien is prejudiced by the Commissioner's failure to call Mr Lucas of Saines Lucas and an adverse inference ought to be drawn.

1. Counsel for Mr O'Brien submitted that the Commissioner ought to have called Mr Lucas to give evidence, and summonsed his complete file; and that unless and until the conduct of Mr Lucas is understood, explained and analysed it is not really possible to evaluate and appreciate the reasons for the conduct of Mr O'Brien. At an early stage he had invited the Commissioner to do so. The Commissioner declined to do so.
2. I understand from the submissions made[10] that Mr O'Brien wanted evidence adduced about such matters as the basis of statements made by Mr Lucas in his letters, including the extent of the instructions he had from his client and his client's capacity to give instructions. The submitted purpose of the evidence was 'to ascertain the basis on which Lucas conducted himself'.
3. I understand the submission in relation to Jones v Dunkel [11] to be that I should draw an adverse inference from the Commissioner's decision not to call Mr Lucas.
4. Counsel for Mr O'Brien submitted that the absence of a full and proper exposition of the conduct of Mr Lucas serves to do a significant injustice to Mr O'Brien in the conduct of his case. He submitted that:
   • The Tribunal is entitled to have provided to it the 'full matrix' of facts and circumstances which gave rise to the conduct the subject of the case.
   • The conduct of the other solicitor in this set of circumstances was inexplicable. No explanation has been offered as to why Mr Lucas took the position he did.
   • The Commissioner apparently takes the position that the Tribunal can and should deal with the case based on no consideration of the Saines Lucas side of the circumstances under consideration.
   • Referring to Jones v Dunkel, it is almost impossible to contemplate Mr O'Brien being able to call Mr Lucas to give evidence to the Tribunal. Likewise it is almost impossible to consider Mr O'Brien calling for production of the Lucas file to ascertain the basis on which Mr Lucas conducted himself.
   • It is no answer for the Commissioner to say Mr O'Brien may bring such evidence as he sees fit in answer to the charges made.
   • No proper basis for the Commissioner's failure to provide the full factual matrix related to the actions of Mr O'Brien has been identified. As a model litigant the Commissioner has obligations to act fairly.
   • No characterisation of the reasons why the withdrawals of caveat being signed appeared at the moment of that decision to be the only course available can be made without the full circumstances being under analysis.
5. Counsel for the Commissioner submitted that:
   • The Commissioner is entitled to make his own decision about what evidence to call.
   • Mr O'Brien may bring such evidence as he sees fit in answer to the charges.
   • It is not a case of the Commissioner withholding important evidence in the Commissioner's possession - the matters Mr O'Brien refers to are not relevant to the decision of the Tribunal.
   • Of course the Commissioner takes the risk that when the evidence is evaluated, the evidence will not in the view of the Tribunal prove the allegations made. But the allegations in this case are limited to Mr O'Brien's conduct in executing and providing the withdrawals of caveat.
6. The well-known 'rule' in Jones v Dunkel[12] is about the inferences that may be drawn from a party's unexplained failure to call a witness who might be expected to have been called.
7. The rule has been explained in the judgment of Newton and Norris JJ in O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916 at 929:

"... where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely:

(a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and

(b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken".

1. Care needs to be taken in applying the rule. The rule may give rise to competing inferences where either party may have called the relevant witness (Brandi v Mingot) (1976) 12 ALR 551. As Her Honour Warren CJ noted in CGU Insurance Limited v CW Fallaw & Associates Pty Ltd,[13]

'it is the unexplained failure by a party to call a witness who is in the camp of that party [emphasis added] that attracts the operation of the rule in Jones v Dunkel.'

1. For the following reasons, I disagree with the submissions made on behalf of Mr O'Brien.
2. The application for orders fairly sets out the facts alleged and clearly sets out the case brought by the Commissioner. There is no procedural unfairness of the sort that might arise if a respondent did not know the case he or she had to meet.
3. The documents annexed to the application for orders, the admitted facts and the evidence of Mr O'Brien and Ms Walsh provide a comprehensive factual basis for assessing Mr O'Brien's actions.
4. Mr O'Brien admits the authenticity of the documents relied on by the Commissioner, which he acknowledged included all of the relevant correspondence between his firm and Saines Lucas.
5. The correspondence comprehensively describes the communicated positions of the two firms.
6. This is not a case where there is a dispute about who said what in a conversation because there were no conversations between Mr O'Brien and Mr Lucas. Mr O'Brien gave evidence that he and Mr Lucas have not spoken for years.
7. Mr O'Brien had the opportunity, which he took, to give evidence about the circumstances leading up to his decision to execute the withdrawals of caveat and what was in his mind when he took that step. Mr O'Brien was able to give not only his account of the pre-settlement dispute but also his perspective on the conduct of the other firm and the position he believed it created for him. To the extent it is relevant, he was able to give whatever evidence he wished about his view that the other solicitor acted unreasonably, and the basis of that view. In other words, he was not prejudiced by the Commissioner not calling Mr Lucas. To the contrary, he was able to put his own conduct in the most advantageous light possible.
8. In relation to the submission that no explanation has been offered as to why Mr Lucas took the position he did, I agree with the submissions on behalf of the Commissioner that:
   • In this proceeding Mr Lucas does not have to explain his conduct, nor does the Commissioner have to do so - these are disciplinary proceedings brought against Mr O'Brien, not against any other legal practitioner.
   • Whatever the difficulties created for Mr O'Brien by the conduct of Mr Lucas, these proceedings concern Mr O'Brien's conduct in preparing, executing and exchanging at settlements withdrawals of caveat without any authority of the caveator and in circumstances where the caveator's solicitor had refused to provide them.
   • Any additional evidence Mr Lucas might give would not be relevant to the findings to be made.
9. In my view, whatever the basis of Mr Lucas' conduct, evidence directed to explaining or analysing his conduct, or the extent of his instructions to make the statements he made, or endeavouring to establish unfavourable findings against him would be irrelevant to the issues for determination in this case, quite apart from considerations of fairness to Mr Lucas, who is not a party to this proceeding, and whose conduct is not the subject of allegations by the Commissioner.
10. Relevantly, my task is not to resolve any dispute there might have been between Mr O'Brien and Mr Lucas about who was right and who was wrong about what the terms of settlement required - these are not proceedings between two parties to determine a civil dispute.
11. My task is to determine whether the decisions made and the action taken by Mr O'Brien to overcome the situation constitute professional misconduct.
12. In making findings about the particular allegations made by the Commissioner, I do not have to decide whether Mr Lucas took an unreasonable position, or if so why. What is relevant to the allegations in this case is that, for whatever reason, Mr Lucas made it clear in his correspondence that he would not provide the withdrawals of caveat before settlement, would only provide them in exchange for his client's share of the settlement proceeds, and had not provided them by the time the settlements were due to start.
13. For the purposes of my findings, and on the basis of the correspondence and other evidence, I can and do accept that Mr Lucas' stated position put Mr O'Brien in a difficult position; and that he believed he had no other option but to take the course he took. Whether the position he was in excuses his conduct is a separate matter. The particular difficulties of his position and any other mitigating circumstances are likely to be relevant to and the subject of submissions on any determinations to be made, at a subsequent hearing.
14. For the purposes of my findings it is irrelevant, in my view, what instructions Mr Lucas had from his client, and whether the caveator was capable of giving instructions.[14]
15. Whether as a model litigant or otherwise, the Commissioner has no obligation to call a witness whose evidence would not be relevant to the facts properly in issue.
16. In all the circumstances, the Commissioner would not reasonably be expected to call Mr Lucas as a witness and this is not a case where the rule in Jones v Dunkel has any work to do, in my view.
17. To the extent necessary to say so, I am also not persuaded that Mr Lucas could be said to be a witness in the 'camp' of the Commissioner[15] for the purposes of the rule in Jones v Dunkel. He made the complaint that led to the Commissioner's investigation but otherwise took no part in it. He is independent of the Commissioner. It was open to Mr O'Brien to summons Mr Lucas to give evidence or summons his file, subject to any objection based on legal professional or client legal privilege. But in any event, in my view, the submission is misconceived.
18. I decline to draw an adverse inference from the fact that the Commissioner did not call Mr Lucas or summons his file.
19. I turn now to the evidence about Mr O'Brien's state of mind.

1. Mr O'Brien relied on four witness statements:
   • His own dated 9 December 2015;
   • Witness statement of Christine Walsh - senior law clerk statement dated 9 December 2015;
   • Witness statement of Geoffrey Gronow, Members' Advocate, LIV, and advisor, dated 11 December 2015
   • Witness statement of Russell Cocks, experienced conveyancing solicitor and lecturer in ethics dated 29 November 2015.
2. Mr Gronow and Mr Cocks were not required to attend for cross-examination, although the Commissioner made submissions about the relevance and weight of the statements in this part of the proceeding.
3. As submitted by the Commissioner, Mr Gronow's and Mr Cocks's statements are clearly relevant to any hearing in respect of determinations which may follow findings as to the conduct, but are of limited relevance to the findings to be made in this part of the proceeding.
4. Mr Gronow is the Members' Advocate at the LIV and provided advice to Mr O'Brien in 2015 as to the issues involved in this case, including issues of legal practice and ethics and Mr Gronow's perspective on Mr O'Brien's conduct. Relevant, in due course, to determinations, Mr Gronow provides his opinion of Mr O'Brien's current understanding of his professional obligations.
5. For the purposes of this decision, in which I am required to make findings as to Mr O'Brien's state of mind, I note Mr Gronow's statement that he did not think Mr O'Brien fully understood the significance of his actions at the time, and that it seemed to him that Mr O'Brien had inadvertently and wrongfully removed the caveat from the title, primarily because of his desire to fulfil his duty to his client and to arrange for settlement at the earliest possible date.
6. Mr O'Brien's state of mind at the time is, of course, a matter for the Tribunal to determine on the evidence before it.
7. In his statement, Mr Cocks provides an opinion about the conveyancing transactions, the limitations of the terms of settlement, the complexity of the situation Mr O'Brien found himself in, and the practical and ethical issues arising from the situation.
8. Relevantly, he states 'I am instructed that at the time that Denis signed those withdrawals he had an honest, if mistaken belief that he was entitled to sign them', and refers elsewhere to the instructions that Mr O'Brien had formed the mistaken belief that as a solicitor he could sign.
9. While Mr Cocks's opinion about Mr O'Brien's current understanding of his professional obligations will be relevant on the question of determinations, a view of his state of mind based on instructions can have no weight, and that matter is in any event a matter for the Tribunal to determine, with the benefit of all of the evidence including Mr O'Brien's evidence under cross-examination.
10. I note Mr Cocks's view that suggestions that Mr O'Brien's actions undermine or subvert the public's faith in the Torrens System or the Torrens System itself appear to be overblown and that all parties in the transactions achieved precisely what they agreed to. I discuss the parties' submissions about this matter, and the respondent's submissions that no harm was done because the parties to the terms of settlement received their entitlement under the terms, in the part of these reasons to do with characterisation of the conduct.
11. I turn now to Christine Walsh's evidence.

1. In her witness statement dated 9 December 2015, Ms Walsh provided background information about the conveyancing transactions, the reason why Mrs Hennessey's property was divided into separate parcels and a description of the additional challenges of preparing multiple sets of auction contracts and vendors statements, liaising with multiple solicitors for the purchasers, and preparing for settlement. She states that because there were three caveators - Mark Hennessey, Everton Hennessey and Mr O'Brien's firm - three sets of seven withdrawals of caveat had to be obtained.
2. Ms Walsh summarised the correspondence between O'Brien Lawyers and Saines Lucas over the week prior to settlement, after title details were provided. Her statement describes the increasing urgency of their requests for the withdrawals of caveat to be provided in time for settlement and the position as at the morning of 28 March 2014.
3. In relation to the events of 28 March 2014, Ms Walsh stated:
   • She was in the office from 6.00am readying the files for settlement - some of the statements of adjustments had been received late the evening before and they acted for one purchaser who was still to deliver the monies to their office that morning for settlement. Accordingly, she was still directing cheques on the morning of settlement in an effort to ensure the settlements all went through on the date scheduled in the contracts.
   • She advised Mr O'Brien at 9:30am that the plaintiffs had not responded to their facsimile,, nor had they provided the withdrawals of caveat. Settlements were to begin in less than 30 minutes.
   • Mr O'Brien, like herself, felt extreme frustration as a direct result of Saines Lucas' obstructive behaviour. At 9:42am, they made the decision to prepare withdrawals of caveats naming Mark Hennessey as the caveator and for Mr O'Brien to sign such withdrawals to avoid the failure of settlements occurring that day.
   • Their intuition that Saines Lucas was not going to allow the settlements to occur, after so much work having gone in to getting the numerous contracts and settlement documents ready for settlement, was confirmed in a facsimile received at 10:01am on settlement day from Saines Lucas stating that they would neither attend settlements nor provide the requested withdrawals of caveat - presumably on the basis that O'Brien lawyers were unable to provide a figure equal to the terms of settlement which would be paid to their client following the settlements, prior to settlement. Their inability to do this was based on several other issues, not directly related to the settlements, such as the amount of monies to be paid for other terms that had been laid out in the terms of settlement for which they had not been able to get clarification of monies required at the date of settlement.
   • Saines Lucas had withheld advising the firm that they would not provide withdrawals of caveats as requested until the very moment the first settlement was scheduled to begin, with all other settlements to follow at approximately half hour intervals. There were three other law firms representing the purchasers of the properties to attend their office that day for settlements.
   • Mr O'Brien had the withdrawals of caveat prepared by her and he signed them in an effort to avert the breaches of contracts by their elderly client, and the consequent costs, expenses and damages resulting from such breaches.
   • After undertaking an amount of work equal to four times that estimated and allowed to the firm in the terms of settlement - their representation of their client was always to obtain the best outcome for her and in doing so the complications of extra settlements sold by auction - also greatly benefited Saines Lucas' own client despite the fact that Saines Lucas sought to frustrate their office at every turn during the process.
   • It is Ms Walsh's opinion that Mr O'Brien acted in response to the obstructive behaviour of the plaintiff and had the best interest of not only their client but the several purchasers and purchasers' representatives in his consideration when he decided to prepare and sign withdrawals of caveat on behalf of the plaintiff. She says that he is an honest and honourable person and lawyer and she believes he was only trying to achieve the best outcome for all parties despite the plaintiff's unwillingness to cooperate - in fact to frustrate the settlements on the due date.

1. At the hearing, Ms Walsh adopted her statement and gave additional evidence on oath:
   • She said that at about 9:45am it became evident that they would not be receiving the withdrawals of caveat from Saines Lucas.
   • Mr O'Brien instructed her to prepare withdrawals of caveat which he believed he could sign as solicitor. She prepared the documents.
   • She said she did enquire whether they were able to do so but "Mr O'Brien believed that as a solicitor he could sign, in the hope that all of the settlements would go through".
   • She took the withdrawals of caveat through to him and by 9:55am they would have all been signed.
   • The first couple of settlements were at 10.00 to 10.15am. Mr O'Brien had to leave as a close friend had passed away.
2. In cross-examination Ms Walsh:
   • Agreed that by 9:45am, correspondence had been received from Saines Lucas, and confirmed that the relevant correspondence was the facsimile [TB 35] being a facsimile dated 28 March 2014 [which states that... "Accordingly, we are instructed by our clients not to attend settlement today without receiving a bank cheque in finalisation and payment as specified in the terms of settlement"]
   • Agreed that in her witness statement she had not referred to that letter as being received and read by her and Mr O'Brien before she prepared the withdrawals of caveat. She said that in her witness statement she had indicated that they had not received notification that withdrawals would be provided
   • In terms of process she said that in one settlement O'Brien lawyers acted as honorary agents, in the other five, four solicitors attended settlement personally, and in the last settlement O'Brien lawyers were acting for the purchaser as well.
3. In re-examination, Ms Walsh confirmed that she had written the letter dated 27 March 2014 [TB 33] and said that they couldn't provide settlement statements until after the settlements because they had to wait for all to occur before they had the monies.

1. Overall, I found Ms Walsh to be a careful witness, doing her best at the hearing to give truthful evidence and be clear in her answers. She gave the impression of a knowledgeable conveyancing clerk, who had sought to manage a complex series of conveyances.
2. There were some inconsistencies between her witness statement and her evidence at the hearing, and some important omissions in her witness statement.
3. In her witness statement she stated that as at 9:30 am plaintiffs had not responded to the facsimile of the evening before, nor had they provided the withdrawals of caveats.
4. As she conceded in cross-examination, and consistent with the documentary evidence, by 9:45 am the firm had received and she had shown Mr O'Brien Saines Lucas' facsimile dated 28 March 2014 [TB 35]. Mr O'Brien made a similar concession, discussed below.
5. This evidence is important because it establishes that before Mr O'Brien instructed Ms Walsh to prepare the withdrawals of caveat, she had brought Saines Lucas' fax of the same morning to his attention. It contained the clear statement that they would not be attending settlement that day without receiving a bank cheque in finalisation and payment as specified in the terms of settlement.
6. Further, in her witness statement, she stated that 'We made the decision to prepare withdrawals of caveat ...'
7. In her evidence in chief she said that Mr O'Brien instructed her to prepare withdrawals of caveat, which he confirmed in cross-examination and which is in all the circumstances more likely. In any event, as he conceded in cross-examination, Mr O'Brien was the supervising solicitor and had the ultimate responsibility for the decision.
8. In her witness statement, Ms Walsh made no mention of any conversation or query about doing so, only that the decision was made and the reason was to avoid the settlements falling through.
9. In her evidence in chief she said that she that she enquired whether they were able to do so and Mr O'Brien "believed that as a solicitor he could sign".
10. I accept her evidence that she asked the question, which was corroborated by Mr O'Brien in cross-examination, and observe that it is to her credit that she did so. This is important evidence relevant to what had been brought to Mr O'Brien's attention before he made the decision to sign the withdrawals of caveat. It establishes that Mr O'Brien's clerk directly queried whether it was something that he could do.
11. I give less weight to Ms Walsh's statement in evidence in chief that Mr O'Brien believed that he could sign the withdrawals of caveat as a solicitor. Not only does she say nothing about that in her witness statement, even though it is clearly a relevant matter, but also at the hearing she said only that he believed that he could sign as a solicitor, not that he told her at the time that he believed he could do so.
12. Ms Walsh gave me the impression of someone being careful to be truthful in the statements she made under oath. She did not directly corroborate Mr O'Brien's evidence that he had answered her query by saying "Yes, as a solicitor". I say more below about the view I formed about whether Mr O'Brien held this belief at the time.
13. I give most weight to her evidence about Mr O'Brien's purpose in instructing her to prepare withdrawals of caveat for him to sign - to avoid the settlements falling through.

1. In his witness statement dated 9 December 2015, Mr O'Brien gives a detailed background to the events leading up to the sale and settlement of the property, including the circumstances in which he became involved in Margaret Hennessey's affairs and began acting for her; the background to and the challenges of the County Court proceeding; the terms of settlement, and the various requests he made for, and Saines Lucas's refusals to provide, withdrawals of caveat in advance of the settlements.
2. In relation to the events of 28 March 2014, Mr O'Brien made the following statements:
   • When I arrived at our offices on the 28 March 2014 at about 9:20am, I was informed by Ms Walsh that she had not received a response from Mr Lucas or Ms Toth [Saines Lucas' conveyancing clerk]. She handed me the seven (7) withdrawals of caveat she had prepared on behalf of O'Brien Lawyers for signing by me. I then thought that as I was entitled to sign such withdrawals as a legal practitioner, I could also sign the other withdrawals to ensure that the terms of settlement were complied with.
   • At the time I did not give any thought that I would be purporting to be acting as solicitor and/or agent of Mark. I considered I was merely acting in the role of the solicitor to avoid the consequences of five (5) settlements falling over including the provision of housing of two (2) families access to farming lands by other purchasers, and to avoid the penalties, costs and readjustments consequent on default of the five (5) contracts of sale. I was aware of the anxiety of my then 95-year-old client to have the matter brought to an end, and distribute the funds to all parties. Accordingly, I asked Mrs Walsh to prepare the seven (7) withdrawals of caveat which she prepared (as shown on her computer records) at 9:42am which I then signed. I also drafted a facsimile (Annexure 12) [TB 36] in which I gave notice of my intentions to Saines Lucas. I then left the conduct of the settlements to Mrs Walsh.
   • I did not receive a response to my facsimile from Saines Lucas. I later left the office to attend a funeral of a friend. Whilst at the funeral I realised that I was suffering from a "low" in my blood sugar levels resulting from my Type I diabetes. I consumed a number of jellybeans I carry with me. I am unable to say when this "low" first started as I occasionally (especially when under severe strain) suffer from "hypo unawareness" episodes. This may have affected my earlier judgement.
   • When I return to my offices at about 12:30pm I was handed a facsimile (Annexure 14) [TB 42] from Saines Lucas. As all settlements except one, involving an amount of $5000.00, had been effected we gave notice to Saines Lewis of our intention to proceed with this final settlement. This occurred at 2.00pm and we did not receive a response from Saines Lucas until 4:05pm.
   • I am now aware that I was not entitled to execute such withdrawals, and regret doing so.
   • That although Mr Lucas was aware of my execution of the withdrawals of caveat, he took no steps to prevent their lodgement for registration by the solicitors for the parties (who were known to him), notify the Registrar of Titles to prevent such registration, or issued Court proceedings for any injunction or other relief. Instead he demanded payment of monies due to his client within five (5) days of his correspondence. This was precisely what I had always proposed.
   • As all settlements proceeded on the due date, and we collected all monies into our trust account, we were then able to calculate the monies due to Mark Hennessey, and forward same to his solicitors. This was done on the 11 April 2014 when all adjustments and outstanding issues were finalised. We also forwarded the balance of funds to Stratmann and Associates in accordance with the Orders.

1. Mr O'Brien adopted his witness statement as true and correct.
2. In cross-examination he:
   • agreed that in his response to Saines Lucas's midday letter, he said nothing about believing he had authority
   • agreed he did not refer to any belief that he had authority in his letter to the Commissioner dated 4/4/14 [TB105]
   • said "I took the view that I had no alternative"
   • agreed that the Commissioner's letter [TB 112] dated 11 September 2014 states 'It appears that... you had lacked any authority to do so....and were not authorised by agency or otherwise....
   • agreed that in his reply [TB 115] he does not say that he believed he could sign because he was a legal practitioner. Instead he says at [TB 116] 'We considered we were justified in providing the Withdrawals of Caveats, without provision of evidence of agency, as permitted by the Transfer of Land Act 1958
   • said 'At the time of signing the question of agency didn't enter my head
   • agreed he hadn't mentioned any medical condition in his two letters to the Commissioner, and said he had no intention of discussing his medical condition in those letters
   • agreed he had not produced any medical evidence but said "I can show you the pump that I am wearing"
   • agreed that nothing in the terms of settlement gave him authority
   • agreed that he knew at the time of settlement that each of the caveators had to provide withdrawals of caveat
   • agreed he had withdrawals of caveat from the grandson's solicitor
   • agreed that he repeatedly asked Mr Lucas to provide withdrawals of caveat and in his 27 March facsimile [TB 33] stated that if he did not receive them by 9.30am he would hold the caveator and/or Saines Lucas liable for them
   • [when it was put to him that he knew withdrawals of caveat have to come from the caveator or their solicitor] said 'that was the usual practice and that was what I was expecting'
   • accepted that Saines Lucas's letter at [TB 35] - made it quite clear that withdrawals of caveat would not be brought to settlement
   • [when it was put to him that it was equally clear that Saines Lucas were not endowing him with any authority] said there was no mention of that
   • agreed he has significant experience in conveyancing
   • confirmed that he believed he was able to sign because he was a solicitor and that it did not cross his mind to think about whether he had authority
   • [when Ms Walsh's evidence on the matter was put to him] agreed that she had asked whether he was entitled to sign, and that he said yes 'as a solicitor'
   • [when it was put to him that the risk was being made apparent in that conversation] said that his recollection was that he could sign the withdrawals of caveat because he was a solicitor
   • [when it was put to him that Saines Lucas' midday letter squarely put him on notice of the risk] answered that all but one of the settlements had been completed; that if Mr Lucas had said 'you are not authorised to proceed,', he would have acted differently
   • [when the same question was repeated] said that he received that letter after he had signed all of the withdrawals of caveat,
   • [when the question was repeated] conceded that he supposed that letter was 'spelling it out'
   • agreed that after receiving that letter he had instructed Ms Walsh to send the facsimile in reply, [stating that they intended to proceed with the last settlement] and agreed that he did not tell Ms Walsh to stop
   • said that he thought Mr Lucas might reply to the facsimile and was expecting him to do so, and thought he had given sufficient notice of his intention
   • agreed that Mr Lucas had offices over the road and that he didn't walk across the road
   • disagreed that the facsimile sent at about 10.01 that morning did not give Saines Lucas reasonable notice of his intentions before the settlements started, and said that he didn't know until then Mr Lucas would not provide the withdrawals of caveat - that it was the only notice he could give
   • agreed that in the lead up to settlement he didn't pick up the phone
   • [when it was put to him that when he signed the withdrawals of caveat he knew he had no authority] said that 'it wasn't a question of authority'
   • [when it was put to him that he knew from long experience that he couldn't sign the withdrawals of caveat] said that that was not his understanding, that it was very rare for him to sign a withdrawal of caveat - he is not normally called on to sign them
   • said that he has since learned that it was not something he ought to have done
   • did not agree that he had wilfully shut his eyes.
3. In re-examination Mr O'Brien said:
   • He had been in partnership with Mr Lucas but that it had ended badly; they do not have a good relationship and Mr O'Brien hasn't spoken to him in 10 years.
   • Payment could not have been made until all the settlements were finished.
   • There had been no need for any correspondence with Stratmann & Co.
   • Either solicitor could have asked for an undertaking and that if Saines Lucas had requested his written undertaking he would have readily given it.
   • He believed they had done everything possible to alert Saines Lucas to the impossibility of doing what they asked, and gave them every notice possible.
   • His understanding is that Land Titles do not question as to who signed withdrawals of caveat - if they are signed by a solicitor the withdrawal is accepted.
   • In response to Ms Walsh's question, he took the view that as a legal practitioner he could sign, and the first time he turned his mind to the basis on which he signed the withdrawals of caveat was in his reply to the Commissioner after he was made aware that the wording refers to acting as an agent.
   • Looking back now, he acknowledges that it says 'signature of agent' and at that time he was not the agent.
   • He doesn't say that he thought he was authorised.
4. In answer to a question I asked - that given the nature and the contents of the withdrawals how could he believe that he could sign them - Mr O'Brien answered that in his mind the terms of settlement superseded the relevance of the withdrawals of caveat; his thinking was that the terms of settlement provided for the property to be sold - that was the priority. He said that it was a split second decision; in hindsight he didn't think.

1. In important respects, Mr O'Brien was not an impressive witness.
2. He gave inconsistent evidence about whether he had signed the withdrawals of caveat before or after he knew of Saines Lucas' 28 March letter [TB35]. He first said that he signed them prior to receiving the letter, which is inconsistent with what he wrote to the Commissioner on 28 October 2014 [TB115]; then said his recollection was that when the withdrawals of caveat were prepared he hadn't received any communication, which conflicted with Ms Walsh's evidence. When her evidence was put to him he said that she may have received it - then said that "but I was made aware that the withdrawals of caveat had not been provided".
3. In my assessment, he was evasive when direct questions were put to him about his actions after he received Saines Lucas' letter at midday on settlement day and I found some of his answers disingenuous, particularly on the issue of whether he had given any real notice to Saines Lucas.
4. Mr O'Brien eventually made a number of important concessions in cross-examination, for which I give him credit, but overall he gave the impression of being more concerned to justify his position and attack the conduct of the other solicitor than to answer the questions he was asked.

22. The plaintiff [the son] shall at settlement of the sale of the property lodge a withdrawal of his caveat...... and undertake not to lodge any further caveat with respect to the said property.

1. The terms of settlement plainly did not give Mr O'Brien the authority to sign withdrawals of caveat, as he conceded.
2. As submitted by the Commissioner the correspondence passing between Mr O'Brien and the caveator's solicitor also makes it plain that the caveator did not give Mr O'Brien authority to sign the withdrawal.
3. The Commissioner submits that Mr O'Brien's conduct was plainly deliberate in that he foreshadowed in his facsimile to the other solicitor that he intended to sign withdrawals of caveat and provide them at the settlements only minutes before the first settlement was due to occur. Mr O'Brien executed seven separate withdrawals of caveat. There is no suggestion that he did so accidentally, or inadvertently, thinking he was doing something else. I am comfortably satisfied that Mr O'Brien made a deliberate decision to have withdrawals of caveat prepared and sign them. I do not accept it was a split-second decision to sign them. Preparing them took time.
4. I have carefully considered his evidence at the hearing that he made an honest mistake, that it did not cross his mind to think about whether he had authority to sign the withdrawals, and that his recollection was he thought he could sign them because he was a solicitor.
5. I am mindful that Mr O'Brien maintained this position in his evidence and did not concede at any point that he turned his mind to the fact that he did not have the authority of the caveator and the risk that he was making a false representation of authority or other false statement.
6. I am unable, however, to accept his evidence to that effect for the following reasons.
7. It is simply incredible that an experienced solicitor who had been in practice for some decades and was experienced in conveyancing, and whose practice had sufficient conveyancing work to employ a senior conveyancing clerk, did not know that he could not sign the withdrawals of caveat as a solicitor because he was not the caveator's solicitor.
8. As submitted on behalf of the Commissioner, it is implausible that Mr O'Brien would have made the demands he made of Saines Lucas for the withdrawals to be provided before settlement, in the terms that he made them, and then suddenly believe that it would be all right for him to sign them because he was a solicitor. It is implausible that, at the time Ms Walsh rightly queried whether they could do what they were doing, at the time he signed them, and then again in the middle of the day when he received Saines Lucas' letter, he did not turn his mind to the question of authority to sign the withdrawals of caveat or the risk that he made a false statement.
9. Saines Lucas' letter relevantly states:

As set out in our previous correspondence our client will not provide the Withdrawal of Caveats until payment is received today. As you are aware we advised your office that we had prepared the Withdrawals of Caveats and we are holding the seven Withdrawal of Caveats at out office. Your office is not authorised to prepare the Withdrawal of Caveats on behalf of our client and of course you are not authorised to execute the Withdrawals of Caveats on behalf of our client.[emphasis in bold added]

1. Further, Mr O'Brien made no mention of any belief that he was entitled to sign the withdrawals in contemporaneous correspondence with Saines Lucas or in correspondence to the Commissioner later in 2014.
2. In his letter at around 10am on 28 March, giving notice of his intentions, Mr O'Brien does not mention any belief that he could sign the withdrawals of caveat. He describes Saines Lucas' conduct as 'simply being obstructive' and states that 'to avoid the consequences of being in breach of the terms of the Contract of Sale, in terms of both costs and damages, we give notice that we will prepare and provide [the withdrawals]'.
3. The letter is consistent, in my view, with a calculated decision to take the risks involved in signing the withdrawals to achieve a particular outcome.
4. Relevantly, Mr O'Brien did not alter course when he received Saines Lucas' letter at midday. As Mr O'Brien conceded in cross-examination, that letter 'spelled it out' that Mr O'Brien had no authority. In his reply, Mr O'Brien made no reference to any belief that he was entitled to sign the withdrawals and stated that to avoid breaching the terms of settlement, the firm proposed completing the final settlement.
5. The absence of any mention of a belief that he could sign the withdrawals, in the context of a chain of correspondence in which every point appeared to have been taken by Mr O'Brien in the dispute about the withdrawals of caveat, is inconsistent with that view being held at the time.
6. Further, as submitted on behalf of the Commissioner, his conduct in respect of the last settlement is consistent with a continuing and reckless disregard of the consequences of providing the withdrawals of caveat at the settlements.
7. The Commissioner's letter dated 4 April 2014, [TB 105] soon after the settlements had taken place, squarely raises the assertion by Mr Lucas as the complainant that Mr O'Brien had no authority to prepare, execute and provide the withdrawals of caveat.
8. In his lengthy letter in reply to the Commissioner dated 13 May 2014, [TB 107], Mr O'Brien provides much detail about the history of the matter, including the correspondence between the parties leading up to settlement, the basis of his view that Mr Lucas was trying to frustrate the settlement, and the beneficial consequences of the settlements proceeding.
9. He makes no mention of any honest belief that he could sign the withdrawals of caveat because he was a solicitor, only that 'we considered we had no alternative', that 'I gave adequate notice to Mr Lucas of my intentions to effect the settlements to avoid the consequences of placing my client in breach of the several Contracts'; and 'I did not consider there were any proper grounds for Mr Lucas to withhold providing such Withdrawals of Caveats'.
10. Mr O'Brien's letter to the Commissioner is consistent with Mr O'Brien believing he was justified in doing what he did, and morally entitled to prepare and execute the withdrawals of caveat, but not with a belief that he had any legal entitlement or right to do so.
11. I have taken into account Mr O'Brien's evidence that he may have had a blood sugar 'low' at the time, which affected his judgment. Mr O'Brien's evidence in his witness statement was that he realised at the funeral [during the morning] that he was suffering from a blood sugar 'low' resulting from his Type 1 diabetes, and addressed it by consuming some jellybeans. He was unable to say when the "low" first started as he occasionally suffers from "hypo unawareness" episodes.
12. Any medical condition may of course be a mitigating factor to be considered in making any determinations. To the extent that it is raised as potentially relevant to Mr O'Brien's state of mind on 28 March 2014, I am not satisfied that would adequately account for his conduct over the whole of the day, apart from the absence of any medical evidence about his condition and how it might affect him.
13. Further, this was not a split second decision executed instantaneously. Mr O'Brien made a series of decisions over the course of the day: to instruct Ms Walsh to prepare the withdrawals; to sign them once they had been prepared; to send the 10am letter to Saines Lucas, which is coherent and clear in the statements made; to allow the settlements to proceed over the course of the day; and in particular to allow the last settlement to proceed after receiving and responding to Saines Lucas' midday letter.
14. For the above reasons, I am unable to accept Mr O'Brien's evidence that he believed, mistakenly, that he could sign the withdrawals of caveat because he was a solicitor, and did not turn his mind to the risk of what he was doing at any relevant time on 28 March 2014. It is more likely than not, in my view, that his evidence about his belief was in the nature of a reconstruction after the fact, rather than an accurate recollection.
15. On the whole of the evidence it is more likely than not, in my view, that Mr O'Brien at the least wilfully shut his eyes/ closed his mind to the risk of what he was doing; that he was careless- in the sense of not caring - as to whether or not it was true or false that he had the authority of the caveator to execute the withdrawals of caveat.
16. With Briginshaw in mind, I am satisfied to the required degree and find, in relation to Mr O'Brien's state of mind that:
    • When Mr O'Brien executed the withdrawals of caveat and caused them to be provided to the purchasers or their agents at settlement, he knew that he was not the caveator's solicitor, that the caveator had not given him authority to do so, and that the caveator's solicitor had refused to provide the withdrawals for settlement.
    • When he signed the withdrawals of caveat as 'agent being an Australian Legal Practitioner', he knew that he was not the solicitor for the caveator and was reckless as to whether he was an agent for the caveator.
    • In the circumstances, he caused to be produced to the Registrar of Titles a document that contained a false statement without any real belief in the truthfulness of the statement.

1. In his outline of submissions, Counsel for Mr O'Brien submitted that the background circumstances are relevant to characterisation of the conduct and that in the circumstances the conduct should not be characterised as professional misconduct.
2. Counsel submitted that the evidence in the Tribunal Book together with Mr O'Brien's evidence at the hearing establishes:
   • The solicitor for another caveator had agreed to provide the withdrawals of his client's caveats prior to settlement.
   • The solicitor for the son, Mark Hennessey, had refused to provide withdrawals ahead of settlement and was insisting on exchanging withdrawals for his client's share of the proceeds of sale.
   • Calculation and payment of each caveator's share of the proceeds of sale was difficult if not impossible.
   • Unless withdrawals of caveat were provided at settlement, it was unlikely the purchasers would pay the purchase monies at settlement.
   • It was reasonable for him to believe he had no other option.
   • No harm was done as each party entitled to payment under the terms of settlement received the payment they were entitled to receive.
   • The surrounding circumstances including Mr Lucas' conduct are relevant to whether the conduct is professional misconduct or unsatisfactory professional conduct.
   • Mr O'Brien acknowledges with the benefit of hindsight and some counselling that his act in signing the withdrawals of caveat was not appropriate, however he was caught in an extraordinary set of circumstances - the perfect storm.
   • His present awareness of the issues and the simple facts of life mean that he could never be in such a circumstance and make the same mistake again.
3. In characterising conduct, the background circumstances may be relevant as providing a context for the conduct, although they will usually be most relevant to determinations. There is no doubt that Mr O'Brien was in a difficult situation. The charges however concern the decision he made in that situation.
4. I accept that at the time, Mr O'Brien believed he was justified in taking the course he took, and believed that he had no other choice. The thrust of his responses to the Commissioner and much of his evidence at the hearing concerned those matters.
5. In fact he had other options.
6. I agree with the submission on behalf of the Commissioner that Mr O'Brien had the option of offering an express undertaking to Mr Lucas to hold the proceeds of sale on trust pending finalisation and agreement as to the various payments to be made before the distribution to Margaret, Mark and Everton Hennessy.
7. In re-examination Mr O'Brien said that either of the caveator's solicitors could have asked for such an undertaking; and that if Mr Lucas had required a written undertaking, he would have readily agreed.
8. In my view, as an alternative to taking unilateral action in respect of the withdrawals, offering a written undertaking himself would have been a far better choice.
9. As the settlement day approached and the stalemate became entrenched, Mr O'Brien also had the option of calling a truce in the acrimonious correspondence and simply picking up the telephone to discuss ways in which the settlements could be effected. He could have but, as he acknowledged, did not walk across the road to speak to Mr Lucas in person.
10. In re-examination, Mr O'Brien explained that he was originally in partnership with Mr Lucas, it ended badly and they hadn't spoken in 10 years. That may be so, but it remains the case that speaking in person to Mr Lucas to try to break the deadlock, in the interests of both their clients, was an option for him and a better choice than the decisions he made.
11. In any event, even if Mr O'Brien had no other options, and it was inevitable that the settlements could not proceed that day, his conduct is clearly professional misconduct and is well within the definition of misconduct at common law in my view.
12. Whatever the pressures Mr O'Brien was under, he has effectively taken the law into his own hands, bypassing the legal practitioner who did have authority to sign withdrawals of caveat, and overriding the decision of that legal practitioner to withhold withdrawals of caveat until settlement and until they could be exchanged for payment of monies.
13. Whether the other solicitor was right or wrong to take the position that he did, Mr O'Brien created documents that were false - they were withdrawals of caveat signed by a person who no had authority from the caveator, in circumstances where the caveator's solicitor had expressly refused to provide them.
14. He then caused those false documents to be provided to solicitors for purchasers in exchange for payment of settlement monies, in breach of the trust between fellow practitioners. The purchasers were not parties to the terms of settlement. Regardless of whether the caveators received their entitlements under the terms of settlement, Mr O'Brien by his conduct misled fellow practitioners.
15. The submission on Mr O'Brien's behalf that 'no harm was done' as each party received what they were entitled to under the terms of settlement, is close to an argument that the end justifies the means, no matter what might be the means.
16. It also entirely overlooks the fact that these transactions involved Contracts of Sale with purchasers who had nothing to do with the terms of settlement and were entitled to receive lawfully executed withdrawals of caveat in return for payment of monies at settlement. The solicitors and other entities whose names appear on the copies of the registered withdrawals as the lodging party were also entitled to assume that a solicitor would not provide them with unlawfully executed documents.
17. By Mr O'Brien's actions, false documents were provided to the Registrar of Titles and registered.
18. I agree with the submission on behalf of the Commissioner that whatever Mr O'Brien's motivations were, his actions subverted the underlying principles of the Torrens system.
19. As Mr O'Brien acknowledged in his evidence in re-examination, the Registrar of Titles does not examine whether a legal practitioner in fact has authority - the signature of a legal practitioner on a withdrawals of caveat is taken at face value, nor does a purchaser's solicitor require proof of authority.
20. Both the registrar and other practitioners are entitled to rely on a legal practitioner's assertion of authority to sign documents such as withdrawals of caveat by the mere act of signing them.
21. If solicitors take the law into their own hands in this way, the trust that underpins the involvement of solicitors in conveyancing transactions and registrations at Land Titles will be undermined.
22. The findings I have made, set out at the end of the previous section of these reasons, are serious findings and are sufficient to found either charge.
23. Even if I had been satisfied, however, that Mr O'Brien's state of mind was something less than knowingly or recklessly creating a document with a false statement in it, such as negligently or mistakenly doing so, the conduct would still fall within the inclusive definition of professional misconduct in s. 4.4.3(1) of the Act, in my view, in that it constitutes unsatisfactory professional conduct where the conduct involves a substantial failure to reach or maintain a reasonable standard of competence and diligence [4.4.3(1)(a) of the Act].
24. In expressing that view, I take into account the submission on behalf of Mr O'Brien that this is a similar case to _Fittock v Legal Profession Conduct Commissioner (No 2)[16]_and should not be characterised as professional misconduct. A number of other cases were referred to in counsel's submissions that appear to turn on their facts, relate to different legislative contexts, or are relevant to determinations rather than the findings to be made.[17]
25. Fittock involved quite different circumstances in my view, and different legislative phrases and definitions. I agree, however, with the discussion by the Court at [107] - [112] about the meaning of 'substantial'; and the relevance of such matters as the extent and seriousness of the departure from the requisite standard of conduct, discussed at [110].
26. Counsel for Mr O'Brien submitted that Mr O'Brien found himself in a "perfect storm". I agree with the submission by counsel for the Commissioner that "legal practice is not a sunny day exercise; the rules are there for the stormy days when practitioners might be tempted to break them". No matter how difficult the circumstances, no practitioner is justified in doing what Mr O'Brien did.
27. The charges are in the alternative. While I am satisfied that the evidence establishes both, I am comfortably satisfied that charge 1 is proven and so find.

1. At all material times you (the Respondent) were an Australian Legal Practitioner within the meaning of s.1.2.3(a) of the Legal Profession Act 2004 (the Act); engaged in legal practice as a partner in the firm of O'Brien Lawyers; and the holder of a practising certificate which authorised you to practice as a principal.
2. At all relevant times, you acted for Mrs Margaret Hennessy in a proceeding in the County Court of Victoria having proceeding number CI-11-02973 in which she was named as the first defendant (the Proceeding).
3. At all relevant times you held the Power of Attorney for Mrs Margaret Hennessy.
4. Mr Mark Hennessy commenced the Proceeding against Mrs Hennessy, his mother, and others, claiming, inter alia, an interest in land known as and situated at 476 Lowes Marsh Road, Gymbowen being more particularly described in Certificate of Title Volume 6482 Folio 313, Volume 6886 Folio 116, Volume 9599 Folio 582, Volume 11480 Folio 698, Volume 11480 Folio 699 and Volume 1148 Folio 700 (the Property).

1. Mrs Hennessy was the sole registered proprietor of the Property; and
2. Mr Hennessy had lodged a caveat over the Property having dealing number AH769043J (the Caveat).

1. The firm Saines Lucas (SL) acted for Mr Mark Hennessy (the Caveator) in the Proceeding.
2. On 4 November 2013 the parties to the Proceeding entered into an agreement to settle the Proceeding and executed written terms of settlement (TOS).
3. It was a term of the TOS that:

1. the Property would be offered for sale by public auction (clause 4); subject to Clause 5 of the Terms of Settlement. 2. the Respondent would act as solicitor for Mrs Hennessy as vendor in the sale of the Property (clause 3);

1. after certain sums of money listed in the TOS were paid, Mr Hennessy would receive 40% of the proceeds of the sale of the Property (clause 8) save and except that it was implied that such payment of 40% of "The balance of the funds" would be paid upon agreement as to the determination of the figures on which such balance was calculated; and

1. at the settlement of the sale of the Property the Caveator would lodge a withdrawal of his caveat over the Property (clause 22) save that it was assumed a single Withdrawal of Caveat would be required and it was not anticipated that eight (8) Withdrawals of Caveat would be required.
2. The Property was sold on 28 February 2014 to six (6) separate purchasers.
3. Each of the contracts of sale for the Property provided for settlement of the sale to take place on 28 March 2014; Admitted to the dates for payment of the balance of monies owed pursuant to the terms of the six (6) Contracts of Sale.
4. On or about 19 February 2014:
   1. your firm received a facsimile from SL; and
   2. in the facsimile described above in paragraph 11 a., SL advised that a Withdrawal of Caveat had been prepared and would be provided upon the Caveator receiving his share of the proceeds of the sale of the Property; it was stated by Saines Lucas that "a" single Withdrawal of Caveat had been prepared on the assumption that the sale of the property would be effected by one (1) Contract of Sale. The facsimile further stated "that our client (Mr Hennessy) instructs that he will have some of the machinery removed prior to the auction with the balance of the machinery to be removed prior to settlement."

1. your firm received a facsimile from SL marked 'Urgent'; and
2. in the facsimile described above in paragraph 12a., SL advised that they would provide Withdrawals of Caveat on the basis that the Caveator receive payment pursuant to the TOS.

(i) Saines Lucas acknowledged that it was aware of the multiple settlements by referring to "Withdrawal of Caveats" in the plural.

1. "a detailed schedule of the First Defendant's costs and disbursements",

2. "that your costs for acting as your client's Power of Attorney are distinct from the costs billed by you as the First Defendant's legal representative. We note that any costs associated with you acting as the First Defendant's Power of Attorney are not to be deducted from the settlement monies as these have not been agreed to in the Terms of Settlement"

neither of which was included in the Terms of Settlement.

1. you caused your firm to send a facsimile to SL; and
2. in the facsimile described above in paragraph 13a., your firm listed the [Title] particulars for properties it required the Withdrawals and proposed that the division of monies under the TOS be calculated after settlement.

(i) the facsimile detailed particulars of eight (8) separate Withdrawals of Caveat required, and requested same by "Friday the 28th March."

(ii) the facsimile referred to the provision in Clause 8(i) of the Terms of Settlement requiring the assessment of O'Brien Lawyers costs in relation to the Contract of Sale and conveyancing being assessed by the Law Institute Costing Service, thereby rendering the calculation of the division of monies referred to in Clause 8(viii) an impossibility.

(iii) the facsimile sought confirmation as to the removal of Mr Hennessy's machinery and equipment as undertaken in previous correspondence.

1. you caused your firm to send a further facsimile to SL; and
2. in the facsimile described above in paragraph 14a., your firm requested SL to provide the Withdrawals as a matter of urgency.

1. your firm received a facsimile from SL marked 'Urgent'; and
2. in the facsimile described above in paragraph 15a., SL advised that they would only provide the Withdrawals of Caveat at settlement due to occur the following day on the basis that the Caveator receive payment pursuant to the TOS. The facsimile alleged:

(i) ''you have not complied with Clause 8(i) and (iv) of the Terms of Settlement, and

(ii) "You have failed to refer your file to the Law Institute Costing Service to be taxed"

The letter further purported to concede conveyancing costs "at $4,000.00 plus GST and disbursements" although the amount for "disbursements" was not quantified.

1. you caused your firm to send a facsimile to SL, in reply to SL's facsimile described above at paragraph 15; and
2. in the facsimile described above in paragraph 16a., your firm gave notice that, if you did not receive the Withdrawals by 9.30am the following day, you would hold the Caveator and/or SL liable for all costs and damages arising from their inability to effect the seven settlements due to take place the next day but note the facsimile further stated:

"You appear to oscillate between demands for strict enforcement of the Terms of Settlement and variations of same when it suits you."

1. your firm received a facsimile from SL marked 'Urgent', in reply to the facsimile sent by your firm described above in paragraph 16; and
2. in the facsimile described above in paragraph 17a., in which SL reiterated that they would only provide the Withdrawals of Caveat at settlement on the basis that the Caveator receive payment pursuant to the TOS. The facsimile stated:

"......we require copies of the following documentation before any settlement:

1. Copies of the Contracts of Sale together with the Statement of Adjustments and Settlement Adjustments;
2. Copy of the Statement of the Wimmera Health Care Group relating to the Accommodation Bond and Interest;
3. A schedule of Professional Costs for the First Defendant."

"We will not provide these (the Withdrawals of Caveat) at Settlement without having first received the above documentation and have had an opportunity to resolve any disputes that may arise from the documentation supplied."

"From the documents you have provided, we have concerns regarding Disbursements as follows:

1. We request a copy of the fees charged by Mr James Isles on 27 June 2013 as we believe $7,150 is excessive.
2. We do not understand why you have nominated the figure of $18,288.66 to have GST added at $1,828.87.

1. We require further information regarding the travel expenses incurred i.e. dates and times and purpose of travel.

1. The photocopying charges are a Professional Cost not a disbursement as claimed by you. You have claimed $576.00 (720 pages at 80c) and $876.00 (1460 pages at 60c) respectively as disbursements. We request that the photocopying charges be deleted as these would have been included in the Professional Costs.
2. Telephone charges are a Professional Cost not a disbursement and as such we require deletion of the STD calls for $956.00."

1. you caused your firm to send a facsimile to SL, in reply to SL's facsimile described above at paragraph 17; and
2. in the facsimile described above in paragraph 18a., your firm reiterated its earlier advice if the Withdrawals of Caveat were not provided to them by 9.30am the following day. Further your firm noted that the first settlement was due to occur at 10.00am (the following morning). Further that facsimile stated:

"As Statmann & Co have seen fit to provide their Withdrawal of Caveats for settlement, we fail to see how you are in any different position. Clearly your client is protected by the Terms of Settlement. We will respond to item (a) to (e) (of your facsimile) next week."

1. a facsimile was received about 9:34am; and
2. in the facsimile described above in paragraph 19a., SL advised that they were instructed not to attend settlement that day without receiving a bank cheque in finalisation and payment as specified in the TOS admitted but seek copies of notes or correspondence received by Saines Lucas from their client as to such instructions.

20. On 28 March 2014 at about 9:59 am and 10.02 am respectively:

1. you caused your law firm to send a facsimile to SL; and
2. in the facsimile described above in paragraph 20a., your law firm gave notice that, in order to avoid the consequences of being in breach of the contracts of sale, your law firm would prepare and provide 7 Withdrawal of Caveats. Further that facsimile stated:

"As we only received the last of the Settlement Statements from the Solicitors for the Purchasers late yesterday, it has been quite impossible to calculate the figures to be allocated to the parties."

1. The facsimile of 28 March 2014 referred to in paragraph 20 above was the first time SL received any notice from your law firm that it would proceed to prepare and provide 7 Withdrawal of Caveats. Until the facsimile received from Saines Lucas at 9.34am on the 28th March 2014 it was not known that such Withdrawals of Caveat would not be provided.
2. At sometime after 10.00am on 28 March 2014 you signed 7 Withdrawal of Caveats next to the words 'Signature of agent being an Australian Legal Practitioner (within the meaning of the Legal Profession Act 2004)' when no response was received to the facsimile referred to in Clause 21 hereof.
3. A withdrawal of Caveat was provided at the settlement at or about 10.15am on 28 March 2014.
4. On 28 March 2014, at about 12.30pm, your firm received a facsimile from SL marked 'urgent' in which SL wrote that your firm was not authorised to prepare or execute the Withdrawal of Caveats on behalf of their client, the Caveator. The facsimile further alleged that "our client now holds your client and your Mr O'Brien in breach of the Terms of Settlement."
5. On 28 March 2014 at about 12.58pm you caused your firm to send a facsimile to SL in which your firm advised that all but one of the settlements, booked to occur from 10.00am, had been effected. Your firm further advised that to avoid breaching the remaining contract of sale your firm proposed completing the final settlement. No response was received to such facsimile from Saines Lucas.\
6. The Withdrawal of Caveats signed by you were presented to the Registrar of Tiles and were registered.

1. Mr O'Brien admitted the authenticity of the following documents.
   1. Annexure 1 to the Application for Order dated 21 April 2015 (the Application for Order) is a true copy of a Caveat in respect of Certificate of Title Volume 9599 Folio 583, Volume 6886 Folio 116, Volume 9599 Folio 582 and Volume 6482 Folio 313 having dealing number AH769043J.
   2. Annexure 2 to the Application for ·Order is a true copy of signed Terms of Settlement in respect of County Court of Victoria proceedings Cl-11-02973.
   3. Annexure 3 to the Application for Order is a true copy of a letter from SL to your firm dated 19 February 2014.
   4. Annexure 4 to the Application for Order is a true copy of a letter from SL to your firm dated 18 March 2014.
   5. Annexure 5 to the Application for Order is a true copy of a letter from your firm to SL dated 21 March 2014.
   6. Annexure 6 to the Application for Order is a true copy of a letter from your firm to SL dated 26 March 2014.
   7. Annexure 7 to the Application for Order is a true copy of a letter from SL to your firm dated 27 March 2014.
   8. Annexure 8 to the Application for Order is a true copy of a letter from your firm to SL dated 27 March 2014 with enclosures.
   9. Annexure 9 to the Application for Order is a true copy of a letter from SL to your firm dated 27 March 2014.
   10. Annexure 10 to the Application for Order is a true copy of a letter from your firm to SL dated 27 March 2014 with enclosure.
   11. Annexure 11 to the Application for Order is a true copy of a letter from SL to your firm dated 28 [M]arch 2014.
   12. Annexure 12 to the Application for Order is a true copy of a letter from your firm to SL dated 28 March 2014.
   13. Annexure 13 to the Application for Order are true copies of Withdrawal of Caveat dated 28 March 2014 and signed by you in respect of the following land:

(a) Certificate of Title Volume 9599 Folio 582 (Dealing number - AL012214C);

(b) Certificate of Title Volume 11480 Folio 698 (Dealing number - AL 1019748);

(c) Certificate of Title Volume 6482 Folio 313 and Volume 11480 Folio 699 (Dealing number - AL081350X);

(d) Certificate of Title Volume 6886 Folio 116 (Dealing number AL016994T);

(e) Certificate of Title Volume 11480 Folio 700 (Dealing number AL018778P).

1. Annexure 14 to the Application for Order is a true copy of a letter from SL to your firm dated 28 March 2014.
2. Annexure 15 to the Application for Order is a true copy of a letter from your firm to SL dated 28 March 2014.
3. Annexure 16 to the Application for Order is a true copy of Vic Landata - Title History Historical Search in respect of the following titles:

1. Annexure 17 to the Application for Order is a true copy of the complaint received from Mr Nick Lucas by facsimile on 31 March 2014 and by post on 1 April 2014.
2. Annexure 18 to the Application for Order is a true copy of a letter from the Legal Services Commissioner (the Commissioner) to you dated 4 April 2014.
3. Annexure 19 to the Application for Order is a true copy of a letter from you to the Legal Services Commissioner dated 13 May 2014.
4. Annexure 20 to the Application for Order is a true copy of a letter from the Commissioner to you dated 11 September 2014.
5. Annexure 21 to the Application for Order is a true copy of a letter from you to the Commissioner dated 16 October 20142.At all relevant times, Mr O'Brien acted for Mrs Margaret Hennessy in a proceeding in the County Court of Victoria having proceeding number CI-11-02973 in which she was named as the first defendant (the Proceeding).

[1]Re a Solicitor [1960] VicRp 96; [1960] VR 617 per Dean J at 620 citing Myers v Elman [1940] AC 282 per Viscount Maughan at 288-289.

[2]Re Maynes [1974] 1 NSWLR 19 at 25-26.

[3] Discussed in Lewis O'Brien v Legal Services Commissioner [2014] VCAT 955 [29]-[30].

[4] Per Murray CJ in Thompson v Copeland [1936] SAStRp 5; [1936] SASR 45, at 47-48, referred to in Giudice v Legal Profession Complaints Committee [2014] WASCA 155 at [86].

[5] Per Bowen LJ in Le Lievere v Gould [1893] 1 QB 497, 500, referred to by Martin CJ in Fidock, [2013] WASCA 108 at[98]

[6] [2014] WASCA 155 at [87] and [97], see also the discussion of the authorities at [81] - [103].

[7] [1938] HCA 34; (1938) 60 CLR 336.

[8] [1938] HCA 34; (1938) 60 CLR 336 at p361-2, per Dixon J. [spacing inserted for emphasis]

[9] See Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170: '. See also Karakatsanis & Anor v Racing Victoria Ltd (2013) VSCA 305 (29 December 2013) at paras. [29} and [37]

[10] Set out in detail in the written outline of submissions handed up at the hearing on 11 November 2015 prior to the matter being adjourned.

[13] [2008] VSC 197 at [16].

[14] Respondent's outline of argument dated 24 July 2015.

[15] See passage quoted above from CGU Insurance Limited v CW Fallaw & Associates Pty Ltd.

[16] [2015] SASCFC 167, Full Court of the Supreme Court of South Australia.

[17] For example, Victorian Legal Services Commissioner v Christopher Wilson Altus Lawyers [2015] VCAT 2059; Legal Services Commissioner v (Lewis) O'Brien [2014] VCAT 955; AB v Victorian Taxi Directorate [2007] VCAT 1243; Mill v The Queen (1988) 166 CLR 59; Victorian Legal Services Commissioner v Robson [2016] VCAT 109.