With the agreement of the respondent, the Tribunal finds the following charges proven:

Mr Graeme Efron is guilty of unsatisfactory professional conduct within the meaning of s 4.4.2 of the Legal Profession Act 2004 (the LPA) in that he, having been advised that Albert Dadon and the entities that he controlled were legally represented by solicitors (Brand Partners), directly communicated with Mr Dadon as specified in paragraph 10 of the Amended Application for Order in contravention of r 25.1 of the Professional Conduct and Practice Rules 2005 (the Rules).

Mr Efron is guilty of unsatisfactory professional conduct within the meaning of s 4.4.2 of the LPA, in that:

(a) he represented to Mr Dadon that the sale price for Lot 4 and Lot 901 totalled $2,250,000 inclusive of GST;

(b) the sale prices in fact totalled $2,250,000 plus GST (which is $2,475,000);

(c) he subsequently witnessed the vendors' execution of transfers recording the true sale prices prior to settlement of the sale; and

(d) he did not rectify the misrepresentation before settlement of the sale of Lot 4 and Lot 901.

1. In respect of Charge 2, Mr Efron is reprimanded and is to pay a fine in the amount of $3,500 within 14 days of the date of this order.
2. In respect of Charge 3, Mr Efron is to pay a fine of $1,500 within 14 days of the date of this order.
3. Mr Efron is to pay the costs of the Victorian Legal Services Commissioner, agreed and fixed at $5,000 within 14 days of the date of this order.

1. This is an application brought by the applicant, the Victorian Legal Services Commissioner, pursuant to s 4.4.13(2) of the Legal Profession Act 2004 (Vic) (the LPA) for orders in respect of the conduct of the respondent legal practitioner, Graeme David Efron.
2. After negotiations between the parties, Mr Efron has agreed to plead guilty to the following two charges:

Mr Efron is guilty of unsatisfactory professional conduct within the meaning of s 4.4.2 of the LPA in that he:

(a) having been advised that Albert Dadon and the entities that he controlled were legally represented by solicitors (Brand Partners),

(b) directly communicated with Mr Dadon [as specified in paragraph 10 of the Amended Application for Order] in contravention of rule 25.1 of the Professional Conduct and Practice Rules 2005.

Mr Efron is guilty of unsatisfactory professional conduct within the meaning of s 4.4.2 of the LPA, in that:

(a) he represented to Mr Dadon that the sale price for Lot 4 and Lot 901 totalled $2,250,000 inclusive of GST;

(b) the sale prices in fact totalled $2,250,000 plus GST (which is $2,475,000);

(c) he subsequently witnessed the vendors' execution of transfers recording the true sale prices prior to settlement of the sale; and

(d) he did not rectify the misrepresentation before settlement of the sale of Lot 4 and Lot 901.

1. Rule 25.1 of the Professional Conduct & Practice Rules 2005 (the Rules) is:

1. Communicating with Another Practitioner's Client

• 25.1 A practitioner who is acting on behalf of a party in any matter other than in relation to a case in court (which matters are governed by rules 18.4 and 18.5) must not communicate directly with any other party for whom, to the practitioner's knowledge, another practitioner is currently acting, unless - * 25.1.1 (a) notice of the practitioner's intention to communicate with the other party, in default of a reply from the other practitioner, has been given to that practitioner, who has failed, after a reasonable time, to reply; * (b) the communication is made for the sole purpose of informing the other party that the practitioner has been unable to obtain a reply from that party's practitioner and requests that party to contact the practitioner; and * (c) the practitioner, thereafter, notifies the other practitioner of the communication; or * 25.1.2 the other practitioner consents; or * 25.1.3 (a) the circumstances are so urgent as to require the practitioner to do so; and

(b) the communication would not be unfair to the other party.

1. By s 3.2.17 of the LPA, the Rules are binding on legal practitioners and breach of the Rules is capable of constituting unsatisfactory professional conduct or professional misconduct.
2. 'Unsatisfactory professional conduct' is defined in s 4.4.2 of the LPA as follows:

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

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

1. The parties rely on the facts set out in the Victorian Legal Services Commissioner's Amended Application for Order dated 4 July 2019 (the Amended Application) and the evidence contained in annexures to the Amended Application.
2. By agreement, the parties also jointly propose that in respect of Charge 2 Mr Efron be reprimanded, that he pays a total fine of $5,000 in respect of both charges, and pays the Victorian Legal Services Commissioner's costs fixed at $5,000.
3. After hearing from the parties, I was satisfied that the charges were appropriately found proven.

1. Given a recent amendment to the Legal Profession Uniform Law Application Act 2014 (Vic) (the Victorian Application Act), and its relevance to this proceeding, it is appropriate to deal briefly with the issue of the Victorian Legal Services Commissioner's and the Tribunal's jurisdiction.
2. The Victorian Legal Services Commissioner brought this application to VCAT under the LPA as an uncompleted complaint or investigation commenced by the Legal Services Commissioner before the commencement of the Legal Profession Uniform Law[1] (Uniform Law) on 1 July 2015.
3. Clause 26 of Schedule 4 (Savings and Transitional Provisions) of the Uniform Law states:
   1. Current complaints and investigations
      • (1) This clause applies to -
        • (a) a complaint made under old Chapter 4 but not disposed of before the commencement day; or
        • (b) an investigation referred to in old Chapter 4 that had begun but had not been completed before the commencement day.
      • (2) On and after the commencement day -
        • (a) the complaint or investigation is to continue to be dealt with in accordance with the provisions of the old legislation; and
        • (b) for that purpose, the complaint or investigation is to continue to be dealt with by the entity responsible for dealing with it under those provisions (the current entity).
      • (3) Subclause (2)(b) does not apply if a local regulation or other legislation of this jurisdiction directs that another entity referred to in this Law (the substituted entity) is to deal with the complaint or investigation instead of the current entity.
      • (4) The substituted entity may have regard to anything done by the current entity before, on or after the commencement day but before the direction takes effect.
4. The Legal Services Commissioner was the 'current entity'. Although the same person became the Victorian Legal Services Commissioner on the commencement of the Uniform Law, no local regulation or other legislation directed that another entity be substituted for the current entity.
5. On 17 September 2019, the Legal Professional Uniform Law Application Amendment Act 2019 (the Amending Act) received Royal Assent.
6. Section 10 of the Amending Act inserted a new Division 11 - ss 185 and 186 - into the Victorian Application Act to clarify that the Victorian Legal Services Commissioner is the substituted entity to deal with complaints and investigations commenced under Chapter 4 of the LPA but not settled before the commencement of the Uniform Law; and to retrospectively validate, to the extent necessary, a number of specified matters.
7. Section 185 of the Uniform Law states:

For the purposes of clause 26(3) of Schedule 4 to the Legal Profession Uniform Law (Victoria) and despite anything to the contrary in that clause, the Victorian Legal Services Commissioner is the substituted entity and is to deal with a complaint or investigation referred to in clause 26(1) of that Schedule.

(1) On and after 1 July 2015 and before the day on which section 185 (as inserted by section 10 of the Legal Profession Uniform Law Application Amendment Act 2019) comes into operation, any of the following done or made, or purported to be done or made, in relation to a complaint made under Chapter 4, or an investigation referred to in Chapter 4, of the Legal Profession Act 2004 has and is taken always to have had the same force and effect as it would have had if section 185 had been in operation during that period -

• (a) any thing done or purported to be done by or on behalf of the Victorian Legal Services Commissioner, an Acting Victorian Legal Services Commissioner or a delegate of the Victorian Legal Services Commissioner;
• (b) any thing done or purported to be done by or on behalf of the Victorian Legal Services Board;
• (c) any decision or order made or purported to be made by a court or tribunal in a proceeding arising out of the complaint or investigation -

(d) a thing done that is the subject of a relevant proceeding; or

(e) a decision or order that is the subject of, or is made in or arises from, a relevant proceeding.

(2) In this section -

relevant proceeding means a proceeding that has been commenced but not finally determined or discontinued before the day on which section 185 comes into operation.

1. The parties accept that the amendments operate to rectify any defects in the Victorian Legal Services Commissioner's standing and jurisdiction and the Tribunal's jurisdiction to make orders in this matter.

1. As discussed below in relation to penalty, her Honour Judge Hampel observed in Victorian Legal Services Commissioner v Hyatt[2] (Hyatt) referring to the High Court decision in Commonwealth v Director Fair Work Building Industry Inspectorate:[3]

It is clear that it is my duty to determine the level of conduct alleged, and to impose sanctions. No agreement between a regulator and a regulated practitioner such as Mr Hyatt can supplant that duty.

1. Although it was not clear from the facts alleged in the Amended Application that Mr Efron was acting for another party in the matter in which Mr Dadon was represented by Ms Good, after hearing from the parties, I was satisfied that he was, and that the conduct in Charge 2 constituted a breach of r 25.1 of the Rules.
2. In relation to Charge 3, the Victorian Legal Services Commissioner made it clear that no dishonesty was alleged, and the charge related to a representation to Mr Dadon that was not correct and was not rectified before settlement of the sale in question.
3. The Victorian Legal Services Commissioner contended that the misrepresentation was negligent. Mr Warne, for Mr Efron, contended it was innocent. I note that the particulars to the charge admitted refer to paragraph 22 of the Amended Application, which states:

In making the sale price representation, the respondent was negligent notwithstanding his non-familiarity with the forms associated with Queensland land transactions.

1. Even if negligent, I held a concern over whether the error on the part of Mr Efron would constitute unsatisfactory professional conduct.
2. The Queensland Civil and Administrative Tribunal observed in Legal Services Commissioner v Laylee & Anor [2016] QCAT 237,[4] at [30]-[34] that the test to determine whether conduct is unsatisfactory professional conduct does not embrace all cases of error but will generally involve repeated or significant departures from acceptable standards.
3. The Tribunal further observed, at [40]:

If every negligent act or error made by a practitioner were to be categorised as unsatisfactory professional conduct, disciplinary prosecutions would follow every claim against a legal practitioner for professional negligence ...

1. It was not clear from the Amended Application what Mr Dadon's role was in the sale transaction, whether Mr Dadon had his own representation or whether Mr Efron was said to be acting for Mr Dadon in relation to the sale transaction.
2. At the hearing, the parties advised me that Mr Efron was not acting in the transaction for Mr Dadon, who through various entities held charges over the land. Mr Dadon had his own representation in relation to the sale but had, it was agreed, relied on the representation by Mr Efron.
3. After hearing further from the parties, I was satisfied that in the particular circumstances of the case, the misrepresentation could constitute unsatisfactory professional conduct as admitted and made the finding sought. I considered it however to be at the low end of seriousness in all the circumstances. As the particulars to the charge indicate, the sale documents were among many witnessed by Mr Efron on the same day, and Mr Dadon had his own representation in respect of the transaction.
4. The following sets out the charges as found, together with, for clarity, the text of the paragraphs in the Amended Application relied on as particulars.

Unsatisfactory professional conduct within the meaning in section 4.4.2 of the [LPA] in that the respondent:

(a) having been advised that Dadon and entities he controlled were legally represented by Brand Partners; and

(b) directly communicated with Dadon as specified in para ... 10 above;

in contravention of rule 25.1 of the Professional Conduct and Practice Rules 2005.

The particulars relied upon are those set out in paragraphs 2A - 10 above.

2A. Albert Dadon was a businessman experienced in negotiating commercial arrangements directly and a former client and friend of the respondent.

1. On or about 12 February 2013 Ms Jane Good of Brand Partners (Good) wrote to the respondent on behalf of Mr Albert Dadon (Dadon), Ubertas Funds Management Pty Ltd, Ubertas 505 St Kilda Road Apartments Pty Ltd and Papercove Pty Ltd, in relation to a dispute about a 2011 transaction which was subsequently the subject of the proceedings referred to in para 7 below (the 2011 dispute), asking the respondent to cease acting for Mr David Marriner (Marriner) and the Marriner Group (Annexure 1).

3A. For the avoidance of doubt, it is no part of the Applicant's case that the respondent did act for Marriner and the Marriner Group in relation to that dispute.

1. [Paragraph not relied on]
2. On 13 February 2013 Dadon asked the respondent by email to cease acting for Marriner and his related entities in respect of Dadon's dispute with them because Dadon considered the respondent a friend and he had acted for Dadon in the past (Annexure 3).
3. [Paragraph not relied on]
4. On 25 February 2013 Dadon's companies, Ubertas 505 St Kilda Road Apartments Pty Ltd and Papercove Pty Ltd, commenced Supreme Court proceedings against Marriner and others.
5. On 15 May 2013 the respondent contacted Dadon directly on behalf of Marriner and his entities in relation to the proposed sale of land in Queensland of which lots 4 and 901 referred to below was a part (the Laguna land sale).
6. On 16 May 2013 Good requested of the respondent that any telephone or written correspondence be directed to her (Annexure 5).

9A. On 21 May 2013, Mr Dadon invited the respondent to his office and the respondent attended and discussed matters other than the 2011 dispute, including the Laguna land sale.

1. In the context of a settlement of the Laguna land sale then fixed for a June date after the 19th, on 22 and 29 May, 5, 12, 17 and 19 June 2013 the respondent contacted Dadon directly, in writing, in relation to matters other than the 2011 dispute including seeking to negotiate a release of securities over lots 4 and 901 in the Laguna land held by Dadon entities (Annexures 6-11) and having repeatedly but unsuccessfully attempted in June 2013 to contact Ms Good, including by an email dated 18 June 2013 (Annexure 11A).

Unsatisfactory professional conduct within the definition in s. 4.4.2 of the [LPA], in that:

(a) the respondent represented that the sale prices for Lot 4 and Lot 901 totalled $2,250,000 inclusive of GST;

(b) the sale prices in fact totalled $2,250,000 plus GST ($2,475,000);

(c) the respondent witnessed the vendors' execution of transfers recording the true sale prices prior to settlement of the sale; and

(d) the respondent did not rectify the misrepresentation before settlement of the sale of Lot 4 and Lot 901.

The particulars relied upon are those set out in paragraphs 19 - 26 above.

Misrepresentations as to contracted sale prices

1. Through a consultant to his firm based in Tasmania, John Mountford, and through the respondent's conveyancing clerk, the respondent acted for Laguna Land Developments Pty Ltd (Laguna Developments), and Laguna Golf (Jagabara) Pty Ltd (Laguna Golf) in the conveyancing of:
   • 19.1. Lot 4 on Survey Plan SP 177196 title reference 50547484 (Lot 4); and
   • 19.2. Lot 901 on Survey Plan SP 196335 title reference 50664237 (Lot 901)

amongst many other lots comprising the Laguna land sale. Marshalls & Dent otherwise acted for the Marriner companies, including Laguna Developments and Laguna Golf, generally in relation to the sale transaction.

1. On or about 19 June 2013, in the last of the communications referred to above in para 10, the respondent wrongly represented by email to Dadon that the total sale price of Lots 4 and 901 was $2,250,000, inclusive of GST (the sale price representation) (Annexure 11). In fact, that was the GST exclusive price, and the GST inclusive price was $2,475,000.
2. At the time of making the sale price representation, the respondent had copies of the executed contracts of sale for Lots 4 and 901, pages 1-4 of the latter of which is (Annexure 11B).
3. In making the sale price representation, the respondent was negligent notwithstanding his non-familiarity with the forms associated with Queensland land transactions.
4. On 19 June 2013 Dadon responded by email to the respondent that he was relying on the sale price representation (Annexure 14).
5. On 8 July 2013 the respondent witnessed, along with many other conveyancing documents, the vendors' execution of the transfers of Lots 4 and 901, which recorded the consideration for those lots as $495,000 and $1,980,000 respectively (being the GST inclusive figures which, when added together totalled $2,475,000) (Annexures 15 and 16).
6. The sale of Lots 4 and 901 settled on 12 July 2013 at a rescheduled settlement at which Dadon and his entities were represented by Ms Good.
7. The respondent did not inform Dadon of the error in relation to the sale prices prior to settlement of the sale of Lots 4 and 901.

1. The purpose of disciplinary proceedings is protective rather than punitive. 'Protection', in this context, relates to protection of the public, protection of the reputation of the legal profession, and maintenance of professional standards. As Maxwell P stated in Quinn v Law Institute of Victoria Limited (Quinn):[5]

Nevertheless, the phrase "not so much to punish as to protect" underlines the fact that the Tribunal's disciplinary orders are punitive as well as protective. 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 the sanction which maximises the protection of the public.

1. In Victorian Legal Services Commissioner v Mingos,[6] the Tribunal referred to Quinn and observed further:

With that protective focus in mind, the Tribunal considers a range of factors in determining penalty including the nature and seriousness of the conduct, any plea of guilty, the relative importance in the case of specific deterrence and general deterrence, past disciplinary history, evidence of character, and other mitigating factors such as medical or psychological evidence.

Penalties imposed in other cases may be a useful guide to proportionality, and parity is important, but every case necessarily involves a different combination of factors. Each case is different.

1. The parties jointly proposed that as penalty Mr Efron be reprimanded and fined a total of $5,000, although they disagreed as to how that total should be allocated between the two charges: the Victorian Legal Services Commissioner submitted that a fine of $2,500 should be imposed in respect of each charge, and Mr Efron submitted that the total be imposed in respect of Charge 2, reflecting that it is the more serious of the two.
2. Criminal and disciplinary proceedings differ in that it is permissible and desirable for disciplinary prosecutors to suggest appropriate penalties, including where the parties compromise their differences and make a joint submission as to penalty: Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, [2015] HCA 46.
3. As the Commissioner acknowledged in written submissions, the Tribunal must decide for itself the appropriate penalty to be imposed in the present case. Weight will be given to an agreed proposed penalty, more so where the practitioner has independent legal representation. But the Tribunal must be satisfied that the penalty is an appropriate one.
4. Because a submission was made at the hearing that the Tribunal is 'bound' by an agreed penalty, I make the following observations.
5. In Hyatt, Judge Hampel considered the principles to apply where the Commissioner and a practitioner are in agreement on the penalty to be imposed. Her Honour relevantly held:

The High Court in Commonwealth v Director Fair Work Building Industry Inspectorate, set out the following principles which are applicable here:

1. there is an important public policy benefit in receiving, and if appropriate, accepting agreed penalty submissions;
2. the decision of the High Court in Barbaro and Zirilli v The Queen, as to the inadmissibility of prosecution, or agreed penalty provisions in criminal proceedings has had no application to cases of this kind;

1. upon persuasion of the accuracy of the parties' agreement as to facts and consequences, and that the penalty the parties propose is an appropriate one, it is a highly desirable practice for the Court to accept the parties' proposal [emphasis added].

It is clear that it is my duty to determine the level of conduct alleged, and to impose sanctions. No agreement between a regulator and a regulated practitioner such as Mr Hyatt can supplant that duty. Subject to that overriding responsibility, it is appropriate for parties to put an agreed position before the Tribunal. If satisfied the agreed penalty is an appropriate one, it follows I should not lightly depart from that agreed position [emphasis added].

1. There is a subtle but important difference in the principles as set out in Hyatt above, with which I respectfully agree, from the paragraph in Legal Services Commissioner v Zervas (Legal Practice) [2015] VCAT 356 (Zervas) at [25] referred to by the Commissioner in submissions.
2. As submitted, in Zervas, the Tribunal observed:

Accordingly, it appears that the approach articulated by Ross J in Law Institute of Victoria v Brott[7], Secretary to the Department of Planning and Community Development v Muto[8]and other cases, remains good law. That is, where a regulatory body and a respondent have reached a negotiated settlement and the penalty is, broadly speaking, within the 'permissible range' (having regard to all the circumstances) the Tribunal should not depart from it.

1. The Tribunal's observations in Zervas were in the context of submissions about the effect of the High Court's decision in Barbaro v The Queen; Zirilli v The Queen,[9] on the validity of sentences imposed in criminal matters where the judge had received a submission by the prosecution as to the available range of sentences.
2. Commonwealth v Director Fair Work Building Industry Inspectorate, which is directly relevant, was decided, in late 2015, after Brott, Muto and Zervas[10] and superseded those cases.
3. In any event, in Muto, Ross J preceded his statement as to the approach he proposed to adopt with the following paragraph at [14], which is often omitted from references to the case:

Ultimately the question of the appropriate penalty in a particular case is a matter for the Tribunal, though the consent of the parties is clearly a significant consideration.

1. Further, even if Muto remained good law on the point, a decision about whether a proposed penalty is within 'the permissible range' would in any event require the Tribunal to first determine what would be the range taking into account the facts and circumstances of the case before it, and any comparable decisions for the purposes of parity.

1. In this case, it appeared from the cases referred to by the parties, that a fine of $5,000 might not be in parity with comparable cases, given that the finding on both charges is unsatisfactory professional conduct, and not professional misconduct.[11] As the Victorian Legal Services Commissioner submitted, there are few decisions of the Tribunal where a fine has been ordered against a practitioner for unsatisfactory professional conduct.
2. Here, no dishonesty is alleged, and it is accepted Mr Efron did not seek or gain advantage from the breach of the direct contact rule.
3. Mr Efron's personal circumstances and absence of prior history are also relevant. He was admitted in November 1978 and has practised as a principal of Efron & Associates since 1984. He is 66 years old. He has no relevant disciplinary history. No finding of professional misconduct or unsatisfactory professional conduct has ever previously been made against him by VCAT or any predecessor tribunal.
4. He is also to be given credit for pleading guilty to the two charges, saving the time and cost of a contested hearing.
5. While the jointly proposed fine in my view is not in direct parity with other comparable cases, in this case I have given weight to the joint position proposed by the parties because of a number of factors particular to this case:
   • The negotiated agreement was one part of a larger compromise not only of these proceedings but also of judicial review proceedings issued by the respondent in the Supreme Court seeking prohibition of the Victorian Legal Services Commissioner continuing the prosecution.[12]
   • It is apparent from the considerable differences between the number and seriousness of the original charges and the two charges in the Amended Application, that the agreed position has been extensively and carefully negotiated.
   • Mr Efron has been represented by experienced Counsel, which is always a relevant consideration.
   • I was ultimately persuaded by submissions on behalf of Mr Efron that the jointly proposed fine was not too high in all the circumstances of this particular case.
6. It was appropriate in my view to allocate a higher amount to Charge 2, consistent with the agreed proposal that a reprimand be only in respect of that charge, representing as it did the more serious of the two charges.
7. Accordingly, my decision is that in respect of Charge 2, Mr Efron is reprimanded and is to pay a fine in the amount of $3,500 within 14 days of the date of this order; In respect of Charge 3, Mr Efron is to pay a fine of $1,500 within 14 days of the date of this order; and Mr Efron is to pay the costs of the Victorian Legal Services Commissioner, agreed and fixed at $5,000 within 14 days of the date of this order.

[1] The Legal Profession Uniform Law is Schedule 1 to the Victorian Application Act.

[2] (Legal Practice) [2018] VCAT 1498 at [25].

[3] [2015] HCA 46; (2015) 326 ALR 476.

[4] Referred to in the respondent's written submissions.

[5] [2007] VSCA 122 at [30]- [31].

[6] (Legal Practice) [2016] VCAT 918 at [25]- [26].

[7] (Legal Practice) [2008] VCAT 1998 (Brott) at [57].

[8] (General) (Correction) [2011] VCAT 328 (Muto).

[9] (2014) 305 ALR 323; [2014] HCA 2.

[10] Date of decision in Zervas is 20 March 2015.

[11] As in Re Pursley [1995] 4 LPDR 5 where advantage was obtained (fine of $6,000); and Legal Services Commissioner v Paric (Correction) (Legal Practice) [2015] VCAT 703 (16 charges of unsatisfactory professional conduct, 11 of which were for breach of the no-contact rule and one charge of professional misconduct: fine of $1,000 and five additional hours of continuing professional development (CPD)). In Legal Services Commissioner v Kotsifas (Correction) (Legal Practice) [2014] VCAT 1615, reference was made to the penalty imposed in J84/2011 Legal Services Commissioner v Mercader as being a reprimand and 10 additional hours of CPD. The Tribunal's findings were published in Legal Services Commissioner v Mercader (Legal Practice) [2011] VCAT 2062 but the penalty decision is not published.

[12] Referred to in the respondent's written submissions at [5]-10].