1. The respondent is reprimanded.
2. The respondent is to pay a fine of $45,000, with a stay on payment until 9 December 2016.
3. The respondent's local practising certificate is suspended for a period of six months (the head suspension period), which head suspension period is wholly suspended for a period of two years from the date of this order (the suspended order period).
4. During the suspended order period a local practising certificate may be granted to the respondent.
5. During the suspended order period the respondent shall not engage in or commit any act of professional misconduct or unsatisfactory professional conduct.
6. Before next year's practising certificate is issued, the respondent is to undertake and complete:
   1. 10 hours of professional development in the area of ethics and professional responsibility, in addition to the usual CPD requirements, The course is to be approved by the applicant and the respondent is to provide evidence of completion to the applicant; and
   2. six one-hour professional counselling sessions with a senior counsellor who is to be approved by the applicant, to be undertaken as one hour per month for six months. The senior counsellor is to report to the applicant on the fact that the professional counselling has been completed.
7. In the event that the respondent fails to comply with order 5 during the suspended order period, the applicant may make application to the Tribunal to revoke the suspended order period. On such application, if the Tribunal is satisfied that a material breach of this order has occurred during the suspended order period, and is satisfied that it is appropriate in all the circumstances, order 3 will be vacated, and the respondent's practising certificate will be cancelled and a local practising certificate not granted to the respondent before the expiry of six months from the date of cancellation or six months and any further period that the Tribunal may determine, having regard to the circumstances of the breach of the order.
8. The respondent is to pay the applicant's costs of the proceeding agreed in the amount of $29,749.74, payment of which is to be stayed until 9 March 2017.

At the hearing of this matter on 9 September 2016, I indicated to the parties the substance of the orders to be made, and gave a brief oral outline of reasons for my decision, with the final form of orders and more detailed written reasons to follow. These are my detailed reasons for decision.

1. In my decision published as Victorian Legal Services Commissioner v Denis O'Brien (Legal Practice) [2016] VCAT 1064 on 30 June 2016 (the June findings), I found Mr Denis O'Brien guilty of misconduct at common law within the inclusive definition of professional misconduct in s. 4.4.3(1) of the Legal Profession Act 2004 (the Act)
2. These reasons relate to the orders to be made by way of determination, also called disposition or penalty, which are the orders in disciplinary proceedings that set out the consequences to follow findings of professional misconduct or unsatisfactory professional conduct.
3. The June findings set out in detail the background, the evidence and the reasons for the findings made. The following is a brief overview.
4. 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 at his office, 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.
5. 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.
6. After an investigation, the Commissioner applied to the Tribunal for findings and orders under the Act. Mr O'Brien admitted the conduct of preparing and signing the withdrawals of caveat without in fact having the caveator's authority but he did 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. Mr O'Brien maintained that he had made an honest mistake, believing that because he was a solicitor he could sign the withdrawals as a solicitor. He also maintained that he had been put in an impossible position by the conduct of the solicitor for the caveator, and had acted to save the settlements from being aborted.
8. I was satisfied to the required degree 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.
9. I was satisfied that the conduct was properly characterised as misconduct at common law in that Mr O'Brien had engaged in conduct that would be reasonably regarded as disgraceful and dishonourable by professional colleagues of good repute and competency. I was satisfied that, not only did Mr O'Brien have other options available to him, but also that no matter difficult the circumstances, no legal practitioner should do what he did.
10. Having made the June findings, the proceeding was listed for hearing on 9 September 2016 for submissions as to the appropriate orders under s.4.4.16 of the Act.
11. Both parties provided written outlines of submissions before the hearing and made additional oral submissions. A number of character references were handed up, which I refer to later in these reasons.
12. Counsel for Mr O'Brien submitted that appropriate determination would include a reprimand and fine together with additional professional education and professional counselling but not a suspension of Mr O'Brien's practising certificate; any suspension ordered should be short, say three months, and suspended for a period of three years.
13. Counsel for the Commissioner submitted that appropriate orders would include a suspension of six to 12 months, a fine and an order to pay the Commissioner's costs.
14. There is no dispute this is an appropriate case for a global penalty.

The Legislative Framework and General Principles

1. If the Tribunal finds a practitioner guilty of unsatisfactory professional conduct or professional misconduct, s.4.4.16 of the Act provides that the Tribunal may make any orders it thinks fit including the orders specified in ss. 4.4.17, 4.4.18 and 4.4.19.
2. The available orders include reprimand; a fine of up to $50,000; additional professional education; conditions of supervision inspection or reporting; an order that the practitioner's practising certificate be suspended or cancelled; and an order recommending to the Supreme Court that the practitioner's name be removed from the roll.[1]
3. A practitioner found guilty of professional misconduct or unsatisfactory professional conduct will usually be ordered to pay the Commissioner's costs of the proceedings. By clause 46D of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, which deals with costs in disciplinary matters under the Act, where the Tribunal has found a practitioner guilty of unsatisfactory conduct or professional misconduct, it must order the practitioner to pay costs, unless there are exceptional circumstances.
4. The objective of determinations is primarily the protection of the public and the maintenance of professional standards in the eyes of the public (protection of the reputation of the profession). Although the orders may well feel like punishment to the practitioner, the focus of the Tribunal will be on protection, not punishment.[2] As observed in Quinn v Law Institute of Victoria Ltd:[3]

The available sanctions are, by their nature, punitive, and the objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect.

Critically for present purposes, however, the Tribunal's protective function is paramount. Thus, where there is a choice of sanctions, it is to be expected that the tribunal will choose that sanction which maximises the protection of the public.

1. With that protective focus in mind, the Tribunal considers a range of factors.
2. The nature and seriousness of the conduct will be taken into account to assess what may be required in the interests of general deterrence (deterring other practitioners from engaging in the conduct).
3. Evidence as to past disciplinary history, character, insight, and the risk of repetition will be relevant to assessing what may be required in the interests of specific deterrence (deterring the specific practitioner from repeating the conduct).
4. The degree to which the practitioner has acquired insight into his or her conduct is relevant to assessing whether the practitioner poses any continuing risk and also whether they are a fit and proper person to practise. As observed by Harper J in Morris v Psychologists Registration Board [4] a practitioner who does not have the necessary insight into the wrongdoing 'ought not, if the public is to be protected, to be allowed to practise.'
5. The degree to which the conduct can be seen as a temporary and explicable departure from otherwise high professional standards, rather than as an indication of attributes of character that may make the person unsuitable for practice, will also be a relevant consideration.
6. Other relevant matters may include mitigating factors such as the practitioner's personal circumstances at the time, any issues of physical or psychological health, and any delay in the case coming to hearing.
7. Orders made in any comparable cases may be a useful guide to proportionality, and parity is important, but every case necessarily involves a different combination of factors. The nature of the offending conduct and its duration, the particular circumstances of the practitioner, the context of the offending, and the assessed risk of repetition are all factors which will rarely be identical in any two cases.

1. The findings in this case represent very serious conduct, which strikes at the heart of the Torrens system and the privileged position of trust that solicitors occupy within that system. Conduct of the kind in issue here jeopardises that trust.
2. The caveat process is one of the integral components of the Torrens system. It allows someone who does not have a registered interest in a title, but may have another recognised interest, to protect that interest or have the opportunity to protect that interest.[5] Fellow practitioners, others attending settlements, and the Registrar are all entitled to expect that a solicitor who has signed a withdrawal of caveat had the authority of the caveator to do so.
3. General deterrence is important in this case.
4. Specific deterrence also has some importance here. As is apparent from the June findings and the observations I made there about my impressions of Mr O'Brien as a witness, I held concerns about his insight into the seriousness of the conduct and his willingness to take responsibility for his actions. He appeared to have an almost stubborn refusal to see what he had done that raised in my mind real questions about his fitness to practise. I say more later in these reasons about the evidence to do with insight and remorse before me at this hearing.
5. The following cases were referred to in submissions and in discussions at the hearing as potentially comparable.
6. LSC v El-Hissi [2013] VCAT 325:
   • Mr El-Hissi was found guilty of 10 charges of professional misconduct relating, amongst other matters, to falsely executing and attesting to mortgage documents and compounding this by making false statements in response to initial enquiries by the Law Institute of Victoria.
   • He was in his 20s at the time and the Tribunal accepted that he had come under relentless pressure from family members involved in the transaction.
   • Mr El-Hissi was reprimanded, his practising certificate was cancelled for nine months and he was ordered to pay the Commissioner's costs.
7. LSC v O'Brien[6] [2014] VCAT 955:
   • Mr Lewis O'Brien was found guilty of professional misconduct in that he engaged in dishonest conduct in breach of rule 30.1.1 of the Professional Conduct and Practice Rules 2005.
   • Mr O'Brien sent a communication to the mortgagee of a property stating that he acted for the registered proprietors and requesting the preparation of a discharge of mortgage. The substance of the charge was that Mr O'Brien had no authority to act on behalf of the registered proprietors because a necessary power of attorney had ceased to have effect.
   • Taking into account his otherwise unblemished record, and the Tribunal's view that this was an aberration in an otherwise proper professional career, Mr O'Brien was reprimanded, ordered to pay a fine of $25,000, ordered to attend and satisfactorily complete a course in legal ethics in addition to training to satisfy CPD requirements and ordered to pay the Commissioner's costs.
8. VLSC v Mingos [2016] VCAT 918:
   • Mr Mingos was found guilty of two charges of misconduct at common law and a third charge of professional misconduct. In addition to failing to attend a court hearing in a criminal matter, with the result that his client was arrested under warrant, Mr Mingos dishonestly altered the date on the hearing notice on his file and dishonestly maintained the fiction that he had missed the hearing because the wrong date was on the notice, to the client's new solicitors and to the Commissioner during the Commissioner's investigation.
   • Mr Mingos pleaded guilty but did not give evidence or otherwise offer any explanation or excuse. He had a prior history of disciplinary findings including two decisions of the Tribunal in 2013 and 2014 and two earlier matters. The conduct involved repeated dishonest actions over a period of months. There were some mitigating factors.
   • Mr Mingos was reprimanded, his local practising certificate was cancelled for a period of 12 months and he was ordered to pay the Commissioner's costs.
9. LSC v Dwyer [2012] VCAT 886:
   • In the course of an investigation into alleged trust account breaches, Mr Dwyer drafted false tax invoices to support the version of events he had given the Commissioner.
   • He pleaded guilty to a charge of misconduct at common law and to other charges relating to trust accounting and costs disclosure breaches.
   • In the 'unusual circumstances' of the case,[7] which the Tribunal regarded as reflecting very strongly in the practitioner's favour, the Tribunal decided not to impose a period of suspension, reprimanded Mr Dwyer, fined him $40,000 and ordered him to pay the Commissioner's costs.
10. LSC v Thalakada [2013] VCAT 2208:
    • Mr Thalakada was found guilty of two charges of misconduct at common law.
    • Mr Thalakada's conduct concerned a false statement made to the Registrar of Titles in an answering notice about a caveat, and a false statement made to a fellow practitioner in correspondence about the caveat. The Tribunal also found that at the time of the answering notice, the purpose of maintaining the caveat was ulterior or collateral.[8]
    • The Tribunal declined to make an order prohibiting Mr Thalakada from applying for a practising certificate for any period, on the basis that no practical purpose would be served, taking into account that he was effectively retired and had not applied for a practising certificate for two years. Instead, the Tribunal ordered that he be reprimanded, pay a fine of $5,000 and pay the Commissioner's costs. The relatively low fine took into account Mr Thalakada's lack of financial resources, age and relatively clean record.
11. Stirling v LSC [2013] VSCA 374[9]:
    • Mr Stirling was found guilty of one charge of professional misconduct relating to various failures in respect of his tax affairs over a period of years and one charge of unsatisfactory conduct in that he made a false and misleading statement to the Victorian Bar Ethics Committee in the course of disclosing a show cause event.
    • He appealed against the decision of the Tribunal suspending his practising certificate for three years.
    • The Court of Appeal 'resentenced' him, imposing a 30 month suspension, with 24 months of that suspended for a period of five years, amongst other orders.
12. VLSC v Lewenberg (No 2) [2016] VCAT 556:
    • Mr Lewenberg was found guilty of two charges of professional misconduct in relation to statements made at the Magistrates' Court and in a conversation with an individual.
    • His disciplinary history included serious prior misconduct and suspension of practising certificate on two occasions. The Tribunal found there to be limited insight and remorse.
    • Mr Lewenberg was reprimanded, his practising certificate suspended for 15 months, with additional education to be completed prior to returning to practice, and he was ordered to pay the Commissioner's costs.
13. None of the cases referred to have the same combination of factors present here. The most useful of the cases, in my view, were those relating to practitioners who had made false or misleading statements, particularly where the statement was made in the context of a matter affecting the land titles register, such as in El-Hissi, Thalakada and O'Brien.
14. I agree with the submission on behalf of the Commissioner that compared to El-Hissi, Thalakada and O'Brien, Mr Denis O'Brien's conduct is more serious. He effectively created false withdrawals of caveat which were accepted by the purchasers' representatives at settlement in return for payment of purchase monies and then registered. His conduct was deliberate and involved a number of acts over the course of a day affecting multiple transactions and parties.
15. I accepted that Mr O'Brien's purpose was to ensure that complex and related settlements proceeded, rather than to defeat an interest he believed to be untenable or obtain financial advantage. Once the settlements had been completed the caveator received the monies secured by the caveats.
16. Nevertheless, the conduct clearly raises the question of whether the practitioner is a fit and proper person to practise, and whether suspension or cancellation of his practising certificate is warranted in the interests of protecting the public and maintaining the reputation of the profession.
17. Although it came late in the proceeding, on the evidence before me at this hearing, I am now satisfied that Mr O'Brien has come to a better understanding of the seriousness of the conduct; and there are strong indications of remorse. As Counsel observed, he 'is further along the continuum of insight and remorse'.
18. Through his Counsel, Mr O'Brien unreservedly apologised for his actions. He accepts the findings. He has sought further counselling and the advice of personal and professional friends within the profession. He has had the benefit of the advice and counsel of senior and highly regarded members of the profession, who have all expressed confidence in his future conduct in their statements to the Tribunal.
19. The character references in this case have some weight. They are not proforma statements by persons who make no reference to the matters the subject of the proceedings, or if they make reference to them, make only the statement that the conduct is out of character. The references submitted in support of Mr O'Brien are universally thoughtful, frank, and do not skip over the seriousness of the findings - they have more than the usual weight as a result.
20. Together with the evidence of Mr O'Brien's high level of outstanding community contribution over many years, the character references are consistent, in my view, with an otherwise honourable person, who in the last years of his professional life has had a once in a professional lifetime very bad day, in which he lost all sight of his professional responsibilities.
21. I take into account the intense professional and personal pressures he experienced that day, referred to in detail in the June findings, not least of which was the fact that he had come briefly into the office on the way to the funeral of a close friend.
22. Mr O'Brien is now 71. I give weight to the length of time - 45 years - that Mr O'Brien has been in practice with no other disciplinary findings or determinations by the Tribunal or its predecessors. There have been no matters in the two and half years since the events in issue.
23. Length of time in practice, of itself, will rarely diminish the consequences of serious misconduct - because an experienced practitioner will not have the excuse of inexperience or immaturity. Nor should proximity to retirement weigh in the matter, particularly if the person is otherwise in active practice. But a long period of time in practice without disciplinary findings before or after the events in question may support a conclusion that the events represent a temporary lapse in a practitioner's otherwise high standards.
24. Mr O'Brien has received two cautions, following complaints: in 2004 from the Law Institute of Victoria (failure to give a statement under s.86 of the Legal Practice Act 1996 in respect of costs and other matters); and in 2008 from the Legal Services Commissioner (acting in conflict of interest).
25. As both Counsel agreed it is important not to elevate the status of those matters - they are not disciplinary findings, although they indicate to me that something was going amiss over that period. On the other hand, it would not have been possible to predict from the nature of those complaints and the subject matter of them the very serious misconduct which brought Mr O'Brien before this Tribunal.
26. Unlike in some of the cases referred to, Mr O'Brien did not plead guilty. Nevertheless, he admitted the conduct. What he contested was the state of mind with which he had made admittedly false representations as to his authority to sign the withdrawals of caveat.
27. While a plea of guilty is a factor to be taken into account, Mr O'Brien consistently maintained he had an honest if mistaken belief in the truth of the statements; and was entitled to put the serious allegations about his state of mind to the test. And unlike most of the practitioners in the cases referred to, he gave evidence in the witness box and submitted himself to cross-examination, for which I give him credit. In addition, although they were made late in cross-examination, he made some important concessions which were relevant to my findings in the case.
28. There was evidence before me, relevant to what is required in the interests of specific and general deterrence, that the published findings in this case have already had a substantial impact: two employee solicitors and a graduate student have left the firm's employ, and a prospective employee withdrew an application for employment. His reputation has suffered.
29. Unlike the practitioner in Thalakada, Mr O'Brien is not in difficult financial circumstances and wishes to continue in active practice.
30. Taking all the relevant matters into account, in my view, the orders that are necessary, but no more than necessary, in this case are as follows:
    • a reprimand;
    • a substantial fine which I set at $45,000;
    • a period of suspension of six months (head suspension) that will be wholly suspended for two years (the suspended order period); and
    • further education and counselling, to be completed before the next year's practising certificate is issued.
31. I observe that if there had been a continuing lack of insight or remorse, any prior serious disciplinary findings, or less compelling evidence of general character, the outcome might have been far more serious for Mr O'Brien.
32. A suspended order period of two years recognises the real possibility that this was a one-off never to be repeated incident in Mr O'Brien's career. Given the lateness with which insight and remorse came in this case, it gives Mr O'Brien an appropriate opportunity to demonstrate that there will be no longer term risk of reoffending.
33. Even though it is to be wholly suspended for two years in this case, a period of suspension of six months signals to the profession that conduct such as this will attract serious consequences, even where there is no ulterior or collateral purpose involved.
34. The substantial fine, which is at the high end of the allowable amount, signals that whatever the circumstances no practitioner should ever do what the practitioner did in this case.
35. As is usually the case, Mr O'Brien will be ordered to pay the Commissioner's costs.

[2] See the observations in Hannebery v Legal Ombudsman [1998] VSCA 142 [22] (Tadgell JA with Phillips and Chernov JJA agreeing).

[3] [2007] VSCA 122 [30] - [31].

[4] Unreported, Supreme Court of Victoria, Harper J, 19 December 1997; referred to in VLSC v Lewenberg (No 2) [2016] VCAT 556 [12].

[5] As observed by Senior Member Butcher in LSC v Thalakada [2013] VCAT 2208 [15].

[8] At [18], referring at [17] to Goldstraw v Goldstraw and the Registrar of Titles [2002] VSC 491.

[9] Relied on by the respondent as relatively more serious conduct and of longer duration. Similarly with Lewenberg.