Having found Mr Harriss guilty of professional misconduct under s 297 of the Legal Profession Uniform Law in relation to charges 2 and 4, in accordance with his plea, the Tribunal orders as follows:

1. Mr Harriss is reprimanded.
2. Mr Harriss is to pay a fine of $5,000 to the Victorian Legal Services Board.
3. Mr Harriss is to pay the applicant's costs, on the County Court scale, to be taxed by the Costs Court, in default of agreement.

For the applicant Ms F Livingstone Clark of counsel

1. This case concerns an experienced family law solicitor who unintentionally contravened a court order and subpoena conditions by causing a verbatim copy of a subpoenaed document to be created. He later released a transcription of the document to his client, when the other party had agreed only to it being made available to him, as solicitor. It is accepted that the release of the document, a psychiatrist's report, had an adverse effect on the opposing party.
2. This has also had serious ramifications for the solicitor, including standing down from the partnership of his firm, and an investigation and disciplinary process which has run in total for approximately three years.
3. One thing which this case demonstrates is the danger for legal practitioners, of engaging in a particular course of action where it is perceived that other practitioners are doing so, without giving sufficient independent consideration to whether that course of action does in actual fact reflect proper practice.
4. Mr Damian Harriss is an accredited specialist in family law who practises in Melbourne. In 2013, he was acting for the husband in a family law proceeding. Mr Harriss sought access to a 1999 report written by a psychiatrist about the wife as part of pursuing his client's case (the Report). He issued a subpoena for the Report, and it was produced to the Family Court at Darwin.
5. The wife's solicitors contended it was not relevant to the proceedings, but agreed to what Mr Harriss called a 'pragmatic compromise', whereby it was made available to Mr Harriss, and to his local town agent in Darwin (Mr Black, a solicitor).
6. A court order was made by consent on 24 September 2013. This provided for the inspection and viewing (not copying) of the Report. Additionally, there were standard form notes on the subpoena (which was in the prescribed form under the Federal Circuit Court Rules 2001). Note 13 stated that certain documents (including medical reports) would be available for inspection by each party, but those records would not be available for copying. Note 12(b) stated that a person who inspects or copies a document produced in response to a subpoena must not disclose its contents, or give a copy of it to any other person without the Court's permission. I refer to these as the 'subpoena conditions'.
7. In September 2013, Mr Harriss instructed Mr Black to dictate a verbatim account of the full Report. Mr Black did so. He sent a typed transcription of the Report to Mr Harriss. In procuring that transcript of the full Report, Mr Harriss contravened the court order and the subpoena conditions.
8. Then, three years later, in October 2016, Mr Harriss' client, the husband, asked Mr Harriss to provide a copy of the transcription of the Report him. Mr Harriss did so, again in breach of the court order and the subpoena conditions.
9. In March 2017, the husband could not find it, and asked for another copy. Mr Harriss again provided it. At this stage, Mr Harriss' retainer by the husband had been terminated. Once again, this was a breach of the court order and the subpoena conditions. The husband annexed it to an affidavit he filed in the Darwin Registry of the Family Court.
10. The family law proceedings were described by Mr Harriss as long running and acrimonious. Both the wife, and Mr Harriss' client, the husband, made complaints to the applicant (VLSC) about Mr Harriss' conduct. The complaints were wide-ranging. The wife's complaint was made on 2 December 2016. On 19 September 2017, after the family law proceedings were completed, it was expanded to include the confidentiality breach the subject of this proceeding.
11. None of the husband's complaints resulted in disciplinary action. Of the various matters raised by the wife, only the confidentiality breaches described above were pursued as disciplinary action by the VLSC at VCAT.
12. Four charges were brought against Mr Harriss. Charges 1 and 2 are alternatives. They relate to the same conduct, namely having the report transcribed in September 2013. Charge 1 alleges misconduct at common law. Charge 2 alleges statutory professional misconduct. Charges 3 and 4 are similarly alternatives. They both relate to providing that transcription to his client in October 2016 and March 2017.
13. Mr Harriss accepts his conduct firstly, in having the report transcribed in September 2013, and secondly, in providing that transcription to his client in October 2016 and again in March 2017, amounted to professional misconduct under s 297 of the Legal Profession Uniform Law (Uniform Law)[1]. That is, that these actions comprised a substantial failure to reach or maintain a reasonable standard of competence and diligence. He pleads guilty to charges 2 and 4. Charges 1 and 3 are not proceeded with.
14. The parties jointly submit that the Tribunal should order that Mr Harriss be reprimanded, fined $5,000 and ordered to pay the VLSC's costs. For the reasons set out below, I determine those are the appropriate orders to be made in this case.
15. By agreement between the parties, this matter has proceeded as a hearing 'on the papers'. The Tribunal received written submissions from both parties, with other supporting material referred to below.

1. The VLSC's application (with certain identifying material removed) was as follows:

I apply to the Victorian Civil & Administrative Tribunal (the Tribunal) pursuant to section 300 of the Legal Profession Uniform Law (Uniform Law) for orders under Division 3 of Part 5.4 in respect of the Respondent's conduct.

1. The Respondent was admitted to practice in Victoria on 28 October 1991.
2. At all material times the Respondent was:

1. An Australian legal practitioner within the meaning of section 1.2.3(a) of the Legal Profession Act 2004; and 2. is and has been since the 1 July 2015 an Australian legal practitioner within the meaning of clause 6 of Schedule 1 of the Uniform Law; and

1. An Australian legal practitioner carrying on practice at Level 6, 530 Collins St, Melbourne in the Sate of Victoria.

1. The Respondent commenced acting on behalf of [the husband] (Client) in or around 2013 in relation to a family law matter (the Complainant's legal matter) against [the wife] (the Complainant), represented by Withnalls Lawyers (the other lawyer).
2. On 15 August 2013, the Respondent filed a subpoena to [a psychiatrist] in the Family Law Registry in Darwin for the production of 'the file and entire contents of same in relation to [the Complainant] including all and any reports/assessments'. That subpoena contained the standard form 'Notes' relating to the subpoena including:

"13. Child welfare records, medical records, criminal records and police records produced in response to this subpoena will be available for inspection by each party and any independent children's lawyer, but these records will not be available for copying. (emphasis added)

Medical record means the histories, reports, diagnoses, prognoses interpretations and other data or records, written or electronic, relating to the person's medical condition, that are maintained by a physician, hospital or other provider of services or facilities for medical treatment." (Emphasis original)

1. A copy of the sealed subpoena was served on the other party on 19 August 2013.
2. On 21 August 2013, the other lawyer filed a Notice of Objection to "inspection/copying of some or all of the documents produced", the basis for this objection being "medical privilege, relevant to this case and subject to the [other lawyer's] inspection first, and that only solicitors inspect and not the parties given the nature of the subpoena" (the subpoena objection). A copy of the sealed Notice of Objection was served on the Respondent.
3. The subpoenaed documents were provided to the Federal Circuit Court Family Law Registry in Darwin in late August 2013, with those documents being a letter written by [the psychiatrist] ... in February 1999 (the Report).
4. The subpoena objection was listed before Her Honour Judge Harland on 17 September 2013. That hearing was adjourned to 24 September 2013, with the Report being released to the other lawyer for inspection to determine whether the objection was maintained.
5. On 19 September 2013, the Respondent wrote to the other lawyer to ascertain whether the subpoena objection was being maintained. The other lawyer responded on 20 September 2013 confirming that if "only solicitors for the parties [were] to inspect and review the documents" then the subpoena objection would not be maintained. The other lawyer confirmed that if the complainant's husband was to seek to view the documents, the subpoena objection would be maintained.
6. On 20 September 2013, the Respondent wrote to the other lawyer and provided the following undertaking in circumstances where the other lawyer provided the Respondent with a copy of the Report

"[Respondent] hereby gives you his undertaking that the Report will not be disseminated, copied, reproduced or forwarded except by further Court order or with your client's prior written consent."[2]

1. Following further correspondence between the Respondent and the other lawyer, a Proposed Minute of Orders was drawn up and were sealed by the Federal Circuit Court on 24 September 2013 as consent orders.
2. Those orders provided inter alia:

"2. That inspection and viewing of the contents of the file produced by the subpoenaed witness [the psychiatrist] be confined to [the Respondent] or his nominated local town agent, such agent to be nominated in writing with a copy of that nomination to the Wife's solicitors." (emphasis added) (the Court Orders)

1. On 24 September 2013, the Respondent wrote to Mr Cecil Black of Cecil Black Family Lawyers [the town agent] to engage him as a local town agent to carry out the inspection and viewing of the Report.
2. In that letter of instruction, the Respondent instructed as follows:

"Whilst an order has not been made for the copying of [the Report], we ask that you dictate a verbatim account of the full report and email that to our office together with your invoice." (emphasis added)

1. On 25 September 2013, the Respondent wrote to the other lawyer confirming the nomination of the town agent.
2. On 3 October 2013, the town agent inspected the subpoenaed documents and transcribed the Report as instructed. On 14 October 2013, the town agent provided the transcribed copy of the Report to the Respondent.

The Provision of the Report to the Complainant's Husband

1. On 6 October 2016, the Respondent provided the complainant's husband with a transcribed copy of the Report.
2. On 16 March 2017, the complainant's husband wrote to the Respondent and requested a copy of "the transcript of the Report - March 1999 (transcript prepared from a dictation by Cecil Black)", noting "I know you sent me this several months ago, however, I cannot now locate it",
3. On 17 March 2017, a legal support employee from the Respondent's firm emailed the complainant's husband a letter prepared under the hand of the Respondent, and a copy of the Report. The Respondent was copied into that email.
4. On 28 April 2017, the complainant's husband swore an affidavit in relation to the complainant's legal matters. This affidavit was filed with the Family Law Registry in Darwin on 2 May 2017. A copy of the Report was attached.

Professional misconduct within the meaning of section 297 of the Uniform Law in that the Respondent engaged in a substantial failure to reach or maintain a reasonable standard of competence and diligence by directing Cecil Black to copy and/or reproduce the Report in contravention of paragraph 13 of the subpoena and the Court Orders.

The particulars relied upon are those set out in paragraphs 4, 5, and 9 - 16 above.

Professional misconduct within the meaning of section 297 of the Uniform Law in that the Respondent engaged in a substantial failure to reach or maintain a reasonable standard of competence and diligence, by causing or allowing the provision of a copy of the Report to the complainant's husband in contravention of paragraph 12(b) of the subpoena and the Court Orders.

The particulars relied upon are those set out in paragraphs 4, 5, 9-12 and 17-20 above.

1. In accordance with Mr Harriss' plea, I find charges 2 and 4 proved.
2. I now turn to the question of the orders which should be made as a consequence. I agree with the parties' submission that a global penalty is appropriate, as the matters alleged comprised a single course of conduct.

1. For Mr Harriss it was put that the practice of transcribing subpoenaed medical reports 'remains widespread within the family law jurisdiction'. This was supported by statements made in the affidavits filed by the three character witnesses for Mr Harriss. They are his long-time colleague and professional partner, Mr John Mazzotta, another experienced Melbourne family law solicitor, Mr Michael Lefebvre, of Westminister Lawyers, and the barrister who was briefed to represent the husband in this case, Mr Dan Sweeney.
2. The VLSC said it did not agree that transcribing of medical records or the like, absent an order of the court permitting that, is a usual or widespread practice.
3. Each of the three character witnesses made statements to the effect that they now understand that the practice of taking a verbatim note of subpoenaed medical records ought not occur. They have all taken steps to ensure that those who they lead or supervise, do not do so either.
4. The statements about this by these practitioners indicate, correctly, that to the extent tacit non-observance of court orders and subpoena conditions for the sake of convenience has been engaged in by some practitioners, any such practice, on short reflection, is not consistent with proper conduct.
5. The VLSC said that the correct course of action would have been to take steps to ensure the tenor of the contents of the report insofar as it bore any relevance to the proceedings could be properly and appropriately conveyed by the town agent, without making a prohibited copy of the Report. In the submission on behalf of Mr Harriss, it was said that a detailed file note by Mr Black would have been acceptable, but a verbatim transcript was not.
6. The distinction between what is acceptable and what was not, has some subtlety to it, and reflects the compromise inherent in situations such as this, bearing in mind the subpoena form and process, and the form of orders which might be agreed between parties.
7. However, in this case, it is clear that the creation of a verbatim transcript of the Report was contrary to what the order and subpoena conditions provided for.
8. For Mr Harriss it was correctly submitted, however, that while charge 2 does amount to a breach of a court order, there is no allegation that his breach was intentional or dishonest. Mr Harriss made the request to Mr Black to dictate a verbatim account of the full Report quite openly, noting that the court had not made an order for the copying of the Report. Mr Harriss was clearly acting on the (mistaken) basis that this was allowable.
9. It was also noted on behalf of Mr Harriss that the town agent, Mr Black, did not raise any objection to the request to transcribe the Report verbatim.
10. However, it was rightly acknowledged that neither this, nor Mr Harriss' understanding that this was a common and acceptable practice, could excuse the breach.

Provision of the Report to Mr Harriss' client

1. The first breach, the improper creation of a verbatim copy of the Report, paved the way for the second breach, the provision of that Report to Mr Harriss' client.
2. As Mr Lefebrve observed,

...the circumstances of [charge 4], causing or allowing a copy of a medical report to be provided to his former client, demonstrates why a strict interpretation of the non-copying rule might be followed. Because mistakes happen, and once the transcript went onto Damian's file there was always a chance it could find its way to his former client.

1. That is what it appears has occurred here. Three years after the transcript was provided to Mr Harriss, he sent the husband a copy (on 6 October 2016). It appears that by or around this time, the husband had ended his retainer of Mr Harriss, and that the Report was provided as part of the handover of relevant materials to enable the continued conduct of the husband's case, or the agitation of new matters between the husband and the wife in 2016/ 2017, without Mr Harriss' involvement.
2. The inference is that by 6 October 2016, the conditions surrounding the provision of the Report to Mr Harriss in 2013 were forgotten. And when the husband asked for the Report to be provided again, another five months later, in March 2017, that task was delegated to an administrative assistant, once again, without pause to consider the restrictions which had been placed on the report's dissemination.
3. The contention that the provision of the Report was inadvertent, rather than deliberate, is affirmed by the fact that the VLSC investigator, who was already by this time involved, was copied in on the email providing the Report to the husband for the second time, on 17 March 2017. I accept the submission that this shows the contravention of the court order and subpoena conditions was not deliberate.

Where an agreed position as to sanctions is put to the Tribunal

1. In Victorian Legal Services Commissioner v Hyatt [2018] VCAT 1498, the Tribunal, constituted by Judge Hampel, set out the principles which apply when a particular set of sanctions is jointly proposed by the parties. It said:
   1. The High Court in Commonwealth v Director Fair Work Building Industry Inspectorate,[3] 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;[4] 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;[5]

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.[6] 2. 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.

1. In considering determination, the primary considerations are the protection of the public, protection of the reputation of the legal profession and maintenance of professional standards.[7]
2. With this protective focus in mind, the Tribunal considers a range of factors, 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.
3. In this case, for the reasons following, I am satisfied that the agreed position put by the parties is appropriate here.
4. First, it is appropriate that Mr Harriss receive a reprimand. This is a public statement of denunciation of his conduct in this case.
5. In terms of the consequences of his actions, Mr Harriss accepted that his conduct had an adverse effect on the wife. As was submitted on his behalf, it was the provision of the Report to the husband (the subject of charge 4) rather than the procuring of the verbatim transcript (the subject of charge 2) which actually brought about this adverse effect. In his affidavit filed in this case, Mr Harriss expressed remorse for the impact this had on the wife, and apologised.[8]
6. I note that quite apart from these proceedings, Mr Harriss has paid a high price for his conduct in procuring the verbatim transcript, and, through lack of care, passing it on to his client (on two occasions).
7. This matter has been ongoing for Mr Harriss for three and a half years. The ramifications have been very significant for him in terms of his standing in his firm, and generally. In late 2019, he was, in effect, obliged to stand down from the partnership of his firm, and is presently working there as a consultant. He has suffered significant financial loss as a result. The whole process has affected him in a personal sense, and also his family. He said the distress, shame and embarrassment of this proceeding, along with the professional and personal consequences, has been felt for some years and will continue into the future. He is clearly remorseful, and, although initially defending his actions, he now understands the imperative for himself and his colleagues to attend carefully to their obligations in relation to confidentiality of subpoenaed documents. For these reasons, specific deterrence is not a major factor here.
8. Mr Harriss has pleaded guilty, and has no previous disciplinary findings against him.
9. I take into account the statements by Mr Harriss' referees, that as an experienced practitioner, he is held in high regard by clients, colleagues, opponents, barristers and judges in the family law jurisdiction. He is described as an effective operator, who promotes prompt resolution of disputes where possible. They also vouch for his honesty and integrity.
10. I also take into account his contributions to the profession, and the community. As a long-time accredited specialist in family law, he has worked to promote professional development of other practitioners in that field. He has contributed to the community as a volunteer and as a long-serving member of the Australian Defence Force Specialist Legal Reserve.
11. In terms of general deterrence, the admitted breaches of a court order, and the subpoena conditions, are serious matters. Taking into account the nature of the conduct described above, the mitigating factors and the need for there to be a general deterrent for practitioners against engaging in such conduct, I accept the parties' submissions that a fine of $5,000 is appropriate. I agree in all the circumstances, it is not necessary to interfere with Mr Harriss' practising certificate.
12. Mr Harriss will also be ordered to pay the VLSC's costs. This is the default position under s 303 of the Uniform Law, and there are no exceptional circumstances which would lead to a different order being made.

[1] Pursuant to s 4 of the Legal Profession Uniform Law Application Act 2014 (Vic), the Uniform Law is adopted as a Victorian Act.

[2] The parties' joint position was that while this undertaking was offered, it was not ultimately accepted. The VLSC makes no allegation of breach of undertaking.

[3] [2015] HCA 46; (2015) 258 CLR 482.

[7] Quinn v Law Institute of Victoria Ltd [2007] VSCA 122 at [30]- [31]; Stirling v Legal Services Commissioner [2013] VSCA 374, from [57].

[8] As mentioned in the correspondence between Mr Harriss and the VLSC during the course of the investigation, the wife had in fact shown the Report to the husband prior to their marriage, many years before.. It is apparent, however, that he did not hold a copy.