1. I made orders and gave brief oral reasons for decision at the hearing of this matter. The following are the expanded reasons for decision.
2. Following a hearing on 9 November 2016, I found the respondent, Michael Gullquist, guilty of professional misconduct within the meaning of s 4.4.3(1)(a) of the L_egal Profession Act 2004_ (Vic) (the Act) in that he has engaged in conduct that involved a substantial failure to reach or maintain a reasonable standard of competence and diligence.
3. The charges brought by the Commissioner concerned five communications Mr Gullquist sent to the Local Court of New South Wales in March and April 2014, while proceedings were on foot in that court, including three addressed personally to the Magistrate, none of which he copied to his opponent.
4. Rules 18.5 and 18.6 of the Professional Conduct and Practice Rules 2005 (the Rules), are:

18.5. A practitioner must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connection with current proceedings unless:

18.5.1 the court has first communicated with the practitioner in such a way as to require the practitioner to respond to the court; or

18.5.2 the opponent has consented beforehand to the practitioner communicating with the court in a specific manner notified to the opponent by the practitioner.

18.6. A practitioner must promptly tell the opponent what passes between the practitioner and a court in a communication referred to in rule 18.5.

1. In summary, I found that:
   • all five letters were in breach of rule 18.5 or rule 18.6 or both of the Rules;
   • in respect of three letters, dated 3 April, 7 April and 9 April 2014, the contravention of the Rules was reckless;
   • one of the letters, dated 23 March 2014, was inappropriate; and
   • the conduct as a whole represented a substantial failure to reach or maintain a reasonable standard of competence and diligence and was thus within the definition of professional misconduct in s 4.4.3(1)(a) of the Act.
2. My reasons for the findings were published as Victorian Legal Services Commissioner v Gullquist (Legal Practice) [2017] VCAT 6 (the November reasons). I refer to them without repeating them. The letters are set out in full in the November reasons.
3. On 1 March 2017, I heard submissions from the parties on the orders to be made by way of determinations, also known as penalty orders, under the Act. Mr Gullquist also provided written submissions.
4. Counsel on behalf of the Commissioner submitted that appropriate orders would be:
   • A reprimand;
   • A requirement for Mr Gullquist to undertake an additional five CPD units in ethics and professional responsibilities in the period 1 April 2017 to 31 March 2018;
   • An order for limited supervision of any correspondence to a court or tribunal proposed to be sent by Mr Gullquist in the course of acting for any client in respect of any litigation.
5. Mr Gullquist submitted that the penalty should be limited to a reprimand. However, in the course of his submissions, he indicated that he would not oppose an order for additional CPD units, and that he would not oppose a limited supervision order, provided it was limited to supervision of proposed correspondence from him to a judicial officer in the course of a litigation matter.
6. In the course of submissions, the parties referred to a number of cases, listed in the appendix to these reasons.

1. The general principles in relation to determinations are well-established. The following summary, referred to by Counsel for the Commissioner, is from Victorian Legal Services Commissioner v O'Brien (No 2) [2016] VCAT 1797, [15]-[25]:
   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.
   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. [1] As observed in Quinn v Law Institute of Victoria Ltd: [2]

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 [3] 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. Mr Gullquist has been in practice for 38 years, as a solicitor in private practice, as Secretary of a government statutory authority, as General Counsel and Company Secretary of a public listed company, and in recent years as a sole practitioner.
2. He has no prior disciplinary history and since the conduct giving rise to the charges, which took place in 2014, no other matters have been raised against him. As Counsel for the Commissioner submitted this is to his credit.
3. While the conduct was serious enough to warrant a finding of professional misconduct, the fact that there have been no relevant matters before or since the events in 2014 is consistent with this matter being a 'one off' departure from Mr Gullquist's usual standards of conduct.
4. As Counsel for the Commissioner submitted, although I found the conduct to be a substantial failure to reach or maintain a reasonable standard of competence and diligence, the conduct was over a relatively short period of time, contained to one matter, and of a discrete nature. I agree that it is properly described as 'aberrant'.
5. This is not a case where any interference with the respondent's practising certificate is warranted or sought.
6. There is no suggestion of any element of dishonesty or misfeasance in relation to client funds. Although I disagree with Mr Gullquist's characterisation of his correspondence in his written submissions, it is relevant that I did not find his letter of 23 March 2014 to be threatening, and I considered that there was a real possibility that he held a genuine, if mistaken, belief that it was not appropriate to copy that letter to his opponent, and that copying the letter to the Judicial Commission overcame any issue of the communication being secretive. Nor did the conduct, considered as a whole, amount to misconduct at common law.
7. There are also some mitigating circumstances here. On the basis of the affidavit made by Mr Gullquist's wife, Ms Julie Fortune, I accept that at around the time of the events in question here, Mr Gullquist's personal circumstances were very difficult. He was endeavouring to keep his wife out of bankruptcy after his wife's business collapsed in 2010. He himself entered bankruptcy in December 2014 as a result. For some years he has suffered from severe depression which, although managed by medication, continues to cause periodic depressive episodes typically lasting one to two weeks and occurring a couple of times a year, which almost completely incapacitate him. It appears from the materials that the illness brought to an end his ability to work at his previous high level.
8. While it was not submitted that this illness was an operative factor in the conduct, in the Verdins[4] sense, it is part of the background personal circumstances operating at the time. Further, while it does not excuse the conduct, or affect its characterisation as professional misconduct, for the purposes of penalty I take into account that Mr Gullquist was acting pro bono in the New South Wales matter, endeavouring to assist a young married man facing bankruptcy, despite his own difficult financial circumstances.
9. General deterrence is not a significant consideration here, in my view, because of the unusual nature of the conduct, which I would expect would be recognised as problematic by most practitioners, and is satisfied by the making of the findings and the publication of those findings.
10. Specific deterrence has more importance, in my view.
11. I take into account the concessions made on Mr Gullquist's behalf by his Counsel at the previous hearing, summarised at [11] of the November reasons. The fact that Mr Gullquist accepted that three of the five letters were in breach of the relevant rules, and that the conduct was at the least unsatisfactory professional conduct, indicated that by the time of the hearing Mr Gullquist had gained insight into the wrongdoing. Further, the concessions made considerably shortened the hearing, enabling it to conclude within one day, and meant that witnesses were not required to attend. I give him credit for these matters.
12. On the other hand, the concessions were made late in the proceeding. And while I consider it unlikely that the conduct in question in this case will be repeated by Mr Gullquist, I retain some concerns, arising from some of the submissions Mr Gullquist made at the determinations hearing, including his written submissions, [5] that Mr Gullquist continues to regard his letter of 23 March 2014 as an appropriate communication, and to consider that no harm was done by the fact that he did not copy his correspondence to his opponent. I referred to the consequences of his failure to copy his correspondence to his opponent at [142] - [146] of the November reasons and my findings in relation to the 23 March letter are at [77] to [95].
13. I agree with the submission on behalf of the Commissioner that prior to the November hearing, there was no evidence of insight on the part of Mr Gullquist. While he was certainly entitled to raise matters he considered relevant in response to the matters under investigation, he gave no indication in his letters to the Commissioner that he understood that his conduct breached the rules or that his letter 23 March 2014 was inappropriate.
14. I take into account the statement made by Mr Gullquist during submissions that "insight was always present" but that he considered that there was little point in pursuing discussions about resolution of the matter because of the centrality of the allegation that his letter to the Magistrate was threatening. Whatever his reasons, it is unfortunate that his position was not put more clearly at an earlier stage.
15. In my view, in all the circumstances, specific deterrence is appropriately satisfied by the combination of a reprimand, which is itself a serious matter; additional CPD units in Ethics and Professional Responsibilities, and the limited supervision order I propose to make.
16. In my view, an order in the terms proposed by the Commissioner, that a senior practitioner review and comment on any correspondence Mr Gullquist proposes to send to a court or tribunal during the course of the litigation matter, is unnecessary and would be an undue restriction on Mr Gullquist's ability to conduct any litigation matter in a timely fashion.
17. In answer to a question from me, Mr Gullquist said that he has conducted litigation matters in the intervening years including appearances in the courts. The fact that no issues have arisen is relevant and suggests that any supervision is appropriately limited to proposed correspondence directed to or addressed to a judicial or quasi-judicial officer, and that any supervision order is limited in time.
18. As I indicated in the course of giving oral reasons, I would expect it to be most unlikely that Mr Gullquist would propose in the future sending any correspondence directed to or addressed personally to a judicial officer in the course of a litigation matter, and the terms of the order should not be taken as any kind of permission to do so.
19. In terms of parity, the orders to be made are comparable to the orders made in the cases referred to by Mr Gullquist; Legal Services Commissioner v Mericka [2014] VCAT 1576 and Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364, taking into account the differences between those cases and this case evident from a reading of them.

1. The Commissioner sought an order that Mr Gullquist pay the Commissioner's costs of the proceeding under clause 46D(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.
2. Clause 46D is specific to costs in disciplinary proceedings under the Act. Under clause 46D(2), if the Tribunal has found an Australian legal practitioner guilty of unsatisfactory conduct or professional misconduct, the Tribunal must make an order requiring the practitioner to pay costs, including the Commissioner's costs, unless the Tribunal is satisfied that exceptional circumstances exist.
3. Mr Gullquist submitted that costs were in the discretion of the Tribunal here. In relation to clause 46D of the VCAT Act, he submitted that there were exceptional circumstances, principally that he is currently an undischarged bankrupt. He does not have the current capacity to pay, and even after discharge is unlikely to be able to pay. He is 62 years old. His employment prospects are limited. He and his wife are dependent on the income she earns from working four days a week.
4. The Tribunal's decision in Victorian Legal Services Commissioner v Low [2017] VCAT 242, at [24] to [25] summarises the discussion of the phrase 'exceptional circumstances' in two Tribunal cases.[6] Both concerned the outcome rather than the personal circumstances of the respondent.
5. In Edwards v Law Institute of Victoria [2008] VCAT 2034,[54], in the context of a review application under a different part of the Act, then Judge Ross indicated that he would regard the fact that the applicant was an undischarged bankrupt and a disability support pensioner as constituting 'exceptional circumstances', if clause 46D had applied.
6. In Council of the Law Society of New South Wales v Webb (No 2) [2012] NSWADT 233, [49] - [52] in the context of a similar mandatory provision in the NSW legislation,[7] the Administrative Decisions Tribunal was satisfied that 'exceptional circumstances' existed, namely the trial was longer than it need have been, the solicitor remained liable to pay a very substantial sum towards the investigation of his practice and his financial circumstances were relatively poor.
7. The Administrative Decisions Tribunal referred at [50] to Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20, where the features that established 'exceptional circumstances' were the advanced age of the respondent (82), his straitened financial situation (on a state pension), no assets of any significant value, no prospects of significant employment, and any costs order could only be met by small instalment payments over a significant period of time.
8. It is clear from the cases that the fact that the respondent is an undischarged bankrupt, together with other features, can constitute 'exceptional circumstances' and I am satisfied that Mr Gullquist's financial situation, his health, age and limited employment prospects satisfy that requirement in this case. A partial costs order is warranted, with payment deferred until after Mr Gullquist's discharge from bankruptcy.

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

[2] [2007] VSCA 122 [30] - [31].

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

[4] R v Verdins [2007] VSCA 102.

[5] For example [6.2(i)], [6.2 (ix)], [7.3(iii)].

[6] Legal Services Commissioner v McNamara [2011] VCAT 1533; and Legal Services Commissioner v Kiatos [2013] VCAT 1524.

[7] Section 566 of the Legal Profession Act 2004 (NSW)