Pursuant to s 17 of the Open Courts Act 2013, the Tribunal orders that any material or information arising from this proceeding which could reasonably lead to the identification of the name of the Complainant, also referred to as AVB, shall not be published or broadcast or be made available to the public. In making this Order the Tribunal is satisfied that it would be contrary to the public interest for the name of the Complainant to be published.

1. The Tribunal finds Alex Lewenberg guilty of Charge 1, namely, that he engaged in professional misconduct within the meaning of s 4.4.4(a) of the Legal Profession Act 2004, in that the conduct of Alex Lewenberg on 6 September 2011 at the Magistrates' Court of Victoria at Melbourne, namely, uttering certain words to which he admitted, constituted conduct consisting of a contravention of Rule 30 of the Profession Conduct and Practice Rules 2005.
2. The Tribunal finds Alex Lewenberg guilty of Charge 3, namely, that he engaged in professional misconduct within the meaning of s 4.4.4(a) of the Legal Profession Act 2004, in that the conduct of Alex Lewenberg on 6 October 2011 at 340 Little Lonsdale Street in Melbourne, namely, uttering the words in a telephone conversation, to which he admitted, was conduct consisting of a contravention of Rule 30 of the Profession Conduct and Practice Rules 2005.
3. The hearing is adjourned to 6 April 2015 to hear submissions in respect of determinations.

Mr N Green QC with Mr J Snow instructed by Ms A Freeman, solicitor to the Victorian Legal Services Commissioner

Mr J Ruskin QC with Mr B Ihle instructed by Lewenberg & Lewenberg Solicitors

1. This is an application pursuant to s 4.4.13(2) of the Legal Profession Act 2004 (Vic) ('the Act') for determination of certain charges in respect of professional misconduct or alternatively, misconduct at common law, against the Respondent and consequential orders under Division 4 of Part 4.4 of the Act.
2. The Application is made on the basis that the Applicant was satisfied that, in the circumstances, there is a reasonable likelihood that the Victorian Civil and Administrative Tribunal ('the Tribunal') would find the Respondent guilty of professional misconduct.
3. The Applicant filed with the Tribunal an Application for Order dated 27 October 2015.
4. A Statement of Agreed Facts was filed by the parties on 15 March 2016.

1. In the Application for Order the Applicant gave the following reasons for making the application:
   1. The Respondent is an Australian lawyer, having been admitted to practice in the legal profession in Victoria on 1 April 1969.
   2. At all material times the Respondent was:
      1. An Australian legal practitioner within the meaning of section 1.2.3(a) of the Act; and
      2. A partner in the firm of Lewenberg & Lewenberg, carrying on business at Level 1, 340 Little Lonsdale Street, Melbourne 3000 in the State of Victoria.
   3. On 6 September 2011, the Respondent appeared in the Magistrates' Court of Victoria at Melbourne to represent a client of his firm, David Cyprys (Mr Cyprys), in a bail hearing (the bail hearing). The court made an audio recording of the bail hearing (Annexure 1). Mr Cyprys was charged with, and later found guilty of, sexual offences against children.
   4. The Complainant was also present in court during the bail hearing. The Complainant liaised with and assisted the police prosecutor and the charge informant during the course of the bail hearing. In particular, when the aspect of Mr Cyprys potentially being required to surrender his passport as a condition of his bail was raised, the Complainant drew to the charge informant's attention and explained the existence of the Israeli Government's Law of Return.
   5. Later during the bail hearing, the Respondent asked Mr Cyprys' father who the Complainant was and then said to Mr Cyprys' father:

It is most disappointing when a person who has nothing to do with the case and being a fellow Jew does wilfully seek to hinder another Jew in his defence of criminal charges.

1. On 10 September 2011, [Mr XY] telephoned the Complainant. [Mr XY] is an orthodox Jewish rabbi and, at that time, was the Complainant's employer. During this conversation [Mr XY] asked the Complainant to tell him what had happened at the bail hearing and what role the Complainant had played at the bail hearing. [Mr XY] also said to the Complainant that members of Melbourne's Jewish community had been saying to him that the Complainant had assisted the police at the bail hearing and had expressed to [Mr XY] their disapproval of such conduct.
2. On 10 September 2011, [Mr AB] telephoned the Complainant. [Mr AB] is a member of the orthodox Jewish community in Melbourne. During this conversation [Mr AB] said to the Complainant that the Respondent had told him that he, the Respondent, was disappointed that the Complainant had participated in the bail hearing. [Mr AB] also said to the Complainant that he, too, disapproved of the Complainant having participated in the bail hearing.
3. In the days and weeks following the bail hearing, many members of the Complainant's community criticised him for his role at the bail hearing. Some members of that community, who had previously shown the Complainant a kind face, began to shun him.
4. On 6 October 2011, the Complainant telephoned the Respondent at his firm during business hours and recorded the conversation between them. The Complainant made this call from his office to the number of the Respondent's firm at 340 Little Lonsdale Street in Melbourne, and did so because he wanted to ask the Respondent whether the Respondent had had conversations within Melbourne's Jewish community in which he had said to members of that community that the Complainant had assisted the police at the bail hearing. The Complainant recorded this conversation on his mobile phone, which recording was later transcribed (Annexure 2).
5. As part of this conversation the Complainant said to the Respondent:

...cause someone said that you - that you had said that I jumped up in court and I was the one responsible for the police taking away his passport and I just said - I thought to myself, Alex wouldn't say something like that 'cause it's not what happened.

No, no, what I did say - I did say that I - there was apparent conversation between the informant and you concerning - about the passport because the coppers wouldn't have a clue. The question of a passport came up and I then observed you speak to the informant. The informant then moved to the prosecutor and mentioned about Jew able to get a passport from embassy and I said, "This is crap. Utter rubbish" ... And you remember in court - remember my rising. That's totally - there's a concept of returning - Jews returning to Israel but that - but that does not involve entitlement to a passport. You remember - that's - that's the only conversation I had with the person. I said to her, "I'm disappointed that you would participate", and that was my disappointment and that's why I'm not exactly delighted that another Yid would assist police against an accused no matter whatever he's accused of. That's the reason why I was very disappointed because there is a tradition, if not a religious implement, that you do not assist against Abraham, assisted by Yid and I was concerned about that.

[It is] [a] religious principle too. I mean Maser - principle of Maser is well known. I'm not suggesting you are but the fact that you were prepared to speak to the informant upset me enormously because it's - I didn't regard you - you - personally you who went through what you went through in Balaclava Road and what you lived through. I know you're Australian born and you came from Perth but to - for you to even to assist disappointed me.

1. What the Respondent said in paragraphs 5, 11 and 12 conveyed and conveys the meaning that a Jew should not assist the police prosecution of a fellow Jew, no matter what the latter is accused of. It also conveyed and conveys a criticism of the Complainant for apparently having done so.
2. Rule 30 ('Standard of Conduct') of the Professional Conduct and Practice Rules 2005 (the legal profession rules) provides as follows:

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

30.1.2 calculated, or likely to a material degree, to:

(a) be prejudicial to the administration of justice;

• (b) diminish public confidence in the administration of justice;
• (c) adversely prejudice a practitioner's ability to practise according to these rules.

1. The Respondent's conduct of saying what he said in paragraphs 5, 11 and 12 above was likely, to a material degree, to be prejudicial to the administration of justice and/or to diminish public confidence in the administration of justice and thereby consisted of a contravention of Rule 30 of the legal profession rules.
2. The Respondent's conduct of saying what he said in paragraphs 5, 11 and 12 above would reasonably be regarded as disgraceful or dishonourable by Australian legal practitioners of good repute and competency.
3. On 4 February 2015, the Complainant gave evidence in Melbourne to the Royal Commission into Institutional Responses to Child Sexual Abuse (Annexure 3). The Complainant's evidence to the Royal Commission included evidence of his conduct at Mr Cyprys' bail hearing on 6 September 2011 and of the content of his telephone conversation with the Respondent on 4 October 2011. The Complainant's evidence to the Royal Commission was anonymised and reported under a pseudonym.
4. On 10 March 2015, the Complainant lodged a complaint (the complaint) (Annexure 4) with the Applicant about the Respondent's conduct.
5. The Applicant investigated the complaint, which was allocated reference COM-2015-0304.
6. On 10 April 2015, the Applicant published the complaint to the Respondent (the publication letter) (Annexure 5) and sought a full written explanation of his conduct.
7. On 22 April 2015, the Respondent replied to the publication letter (Annexure 6).
8. On 27 May 2015, the Applicant wrote again to the Respondent (Annexure 7), to which letter the Respondent replied on 3 June 2015 (Annexure 8).
9. On 26 August 2015, the Applicant wrote to the Respondent (the Murray letter) (Annexure 9), in accordance with the principles expressed by the New South Wales Court of Appeal in Murray v Legal Services Commissioner and Anor [1999] NSWCA 70; [1999] 46 NSWLR 224, to say that the investigation of the complaint was close to being finalised, to explicate what the investigation indicated and to offer the Respondent an opportunity to provide further written submissions or material that he would like taken into consideration before the Applicant made a decision under s 4.4.13 of the Act to deal with the matter.
10. On 1 September 2015, the Respondent replied to the Murray letter (Annexure 10).
11. On 25 September 2015, the Applicant sent a Notice of Decision following the investigation of the complaint to the Respondent (Annexure 11) and to the Complainant (Annexure 12).
12. Following an investigation the Applicant was satisfied that, in the circumstances, there is a reasonable likelihood that the Tribunal will find the Respondent guilty of professional misconduct. Pursuant to s 4.4.13(2) of the Act, the Application for Order sought determination of the Tribunal of the following charges and consequential orders.

Professional misconduct, within the meaning of s 4.4.4(a) of the Act, in that the Respondent's conduct of, on 6 September 2011 at the Magistrates' Court of Victoria at Melbourne, namely, uttering the words alleged at paragraph 5 above, was conduct consisting of a contravention of rule 30 of the legal profession rules.

Alternatively to Charge 1, misconduct at common law, within the inclusive definition of professional misconduct of s 4.4.3(1) of the Act, in that the Respondent's conduct of, on 6 September 2011 at the Magistrates' Court of Victoria at Melbourne, namely, uttering the words alleged at paragraph 5 above would reasonably be regarded as disgraceful or dishonourable by Australian legal practitioners of good repute and competency.

Professional misconduct, within the meaning of s 4.4.4(a) of the Act, in that the Respondent's conduct of, on 6 October 2011 at 340 Little Lonsdale Street in Melbourne, namely, uttering the words alleged at paragraphs 11 and 12 above, was conduct consisting of a contravention of rule 30 of the legal profession rules.

Alternatively to Charge 3, misconduct at common law, within the inclusive definition of professional misconduct of s 4.4.3(1) of the Act, in that the Respondent's conduct of, on 6 October 2011 at 340 Little Lonsdale Street in Melbourne, namely, uttering the words alleged at paragraphs 11 and 12 above would reasonably be regarded as disgraceful or dishonourable by Australian legal practitioners of good repute and competency.

1. The Charges concern contravention of one or more of the following provisions of the Act.
2. Section 4.4.4 provides as follows:

4.4.4 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

Without limiting section 4.4.2 or 4.4.3, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct -

(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules;

1. Section 4.4.2 of the Act provides for an inclusive definition of unsatisfactory professional conduct:

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.

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. Section 4.4.3 of the Act provides for an inclusive definition of professional misconduct:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

Section 4.4.4 specifies conduct that is capable of constituting professional misconduct and section 4.4.6 specifies conduct that constitutes professional misconduct.

1. Section 4.4.20 of the Act provides that the Tribunal may find a person guilty of unsatisfactory professional conduct even though the application alleged professional misconduct.

1. The standard of proof of misconduct is the normal civil standard: on the balance of probabilities.
2. In the context of disciplinary proceedings, the relevant standard is applied having regard to the principles enunciated in Briginshaw v Briginshaw.[1] After considering the evidence applicable to the relevant charge the Tribunal will be satisfied, on the balance of probabilities, if the allegation is made out to the reasonable satisfaction of the Tribunal. Dixon J expanded upon this concept in the following often quoted passage:

The truth is that, when the law requires proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality ... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained independently of the nature of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal in such matters, 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect influences.[2]

1. In NOM v DPP & Ors,[3] which concerned an appeal from the County Court against a refusal to revoke a Non Custodial Supervision Order, the Court of Appeal had occasion to consider the Briginshaw test in the context of s 140 of the Evidence Act 2008. After an extensive analysis of relevant authorities, the Court reached a conclusion which, in the Tribunal's view, is equally applicable to applications such as the present one:[4]

Accepting that the standard of proof expressed in Briginshaw requires actual persuasion on the part of a fact-finder - and that is materially different to an assessment based only on a mere mathematical probability - s 140(2) of the Evidence Act reflects the conceptual principles underpinning that standard. Significantly, nothing was said to cast any doubt on the line of authority to which we have referred that has construed s 140(2) as embracing the principle in Briginshaw. We consider that line of authority plainly correct. In any event, such a view is now so settled that this Court should not now depart from an accepted construction of a uniform legislative provision of the Commonwealth and a number of States.

Accordingly, whether it be by virtue of the common law or s 140, the civil standard of proof subject to the principle in Briginshaw is the relevant conceptual standard to which a fact-finder must satisfy him or herself in proceedings of this nature.[5] Mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found.

1. In Con Karakatsanis and Tony Karakatsanis v Racing Victoria Limited[6] the Court of Appeal again had occasion to consider the Briginshaw test in the context s 140 of the Evidence Act 2008. The Court observed that while the considerations embodied in the Briginshaw test are now reflected in s 140 of the Evidence Act 2008, that Act only applies to proceedings in a Victorian court[7] which is defined to include persons or bodies required to apply the laws of evidence. The Victorian Civil and Administrative Tribunal Act 1998 makes plain that the Tribunal is not bound by the rules of evidence. Accordingly:

...provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law...it was entirely proper for the Tribunal to take the approach that it did and require that it be 'comfortably satisfied' of the facts in issue.[8]

1. In this case, the Charges are based upon words admitted to have been said by the Respondent on two separate occasions. The Respondent has pleaded guilty to a lesser charge of unsatisfactory professional conduct on the basis of the Agreed Statement of Facts. Given the seriousness of the allegations made against the Respondent and the potential gravity of the consequences for him in potential findings and determinations, before making findings that any of the Charges are proven, the Tribunal must carefully scrutinise the evidence as comprised in the admitted facts. Having done so, the Tribunal must then be comfortably satisfied, on the balance of probabilities, that the relevant facts in each case prove the corresponding Charge. In reaching an understanding of the gravity of the words spoken, it is necessary to analyse the context in which they were said and the necessary implied import of those words to the parties concerned.

1. After hearing an application, if the Tribunal is satisfied that the practitioner is guilty of professional misconduct or unsatisfactory professional conduct, it may make any orders it thinks fit including, any one or more of the orders specified in ss 4.4.17, 4.4.18 or 4.4.19 of the Act. In this case, the Tribunal will consider appropriate determinations only upon hearing further submissions from the parties.

1. On 15 March 2015, being the first day of the Hearing, the parties filed the following Statement of Agreed Facts:
   1. The Respondent, Mr Alex Lewenberg, is an Australian lawyer. He was admitted to practise in Victoria on 1 April 1969.
   2. At all material times Mr Lewenberg was:
      1. an Australian legal practitioner within the meaning of section 1.2.3(a) of the Act; and
      2. a partner in the firm of Lewenberg & Lewenberg, carrying on business at Level 1, 340 Little Lonsdale Street, Melbourne 3000 in the State of Victoria.

1. On 6 September 2011 Mr Lewenberg appeared in the Magistrates' Court of Victoria at Melbourne to represent a client of his firm, David Cyprys (Mr Cyprys), in a bail hearing (the bail hearing). The court made an audio recording of the bail hearing.
2. Mr Cyprys was charged with, and later found guilty of, sexual offences against children.
3. The Complainant, AVB, is a member of an orthodox Jewish group Yeshiva. He was present in court during the bail hearing. At that time he was neither a victim in respect of the charges that Mr Cyprys was facing nor a witness in the proceedings. Mr Lewenberg says that he did not know at the time of these proceedings, that AVB was in fact a victim of Mr Cyprys; nor did he know this at the time of the conversation with AVB on 6 October 2011.
4. Mr Lewenberg says that the Police advised him prior to the Bail application that they did not oppose Mr Cyprys being granted bail, but sought the imposition of appropriate conditions.
5. During the course of the bail application AVB approached the police Informant and the prosecutor on several occasions, apparently raising matters with them that concerned the bail application.
6. During the bail application the Police informant gave evidence under oath that she had concerns in relation to Mr Cyprys absconding. She gave evidence that:

It is quite possible that he (Mr Cyprys) is at high risk of flight

[Mr Cyprys] is still connected with people who would probably make it possible for him to leave the country if that's what was required for him to do.

I think [Mr Cyprys's] parents were born in Israel ... I think he's just entitled automatically to a passport to travel to Israel .... That's my belief.

1. Under cross-examination from Mr Lewenberg, the Informant said that she was unsure of where Mr Cyprys's parents were born.
2. The prosecutor subsequently submitted:

The Informant has concerns in relation to the possibility of a passport being - - an additional passport being obtained if one is in fact surrendered, and concerns that the accused may have access to friends or associates who are able to assist him if he chooses to leave the jurisdiction.

1. The Magistrate stated that she was concerned that the evidence in respect of Mr Cyprys's ability or entitlement to obtain a non-Australian passport, specifically an Israeli passport, was "vague". Her Honour asked the prosecutor whether she had any means of determining whether Mr Cyprys had the ability to apply for a passport from another nation.
2. At this stage, AVB sought to speak to the Informant. The Magistrate directed the Informant to talk to AVB in the body of the Court. Mr Lewenberg believes he overheard the word "embassy" in the context of a discussion between the informant AVB and the prosecutor. He cannot now recall who said the word "embassy". Following this conversation the prosecutor then submitted the following:

Your Honour, the information that's been provided to me... is that there is a right to apply for an Israeli passport for any Jewish person.

1. Mr Lewenberg believed this to be false and based on misinformation. He advised the Court accordingly.
2. Following this exchange, and having observed AVB give information to the police which was immediately followed by the prosecution submission regarding entitlement to an Israeli passport, Mr Lewenberg asked Mr Cyprys's father who AVB was. Mr Cyprys's father identified him.
3. Mr Lewenberg then turned to Mr Cyprys's father and said:

lt is most disappointing when a person who has nothing to do with the case and being a fellow Jew does wilfully seek to hinder another Jew in his defence of criminal charges.

1. Mr Cyprys was subsequently granted bail on conditions, including that he forfeit his passport and not apply for any other.
2. Mr Lewenberg's firm immediately withdrew from acting for Mr Cyprys following the bail application due to an apparent conflict. His firm had no further involvement in representing Mr Cyprys.

1. On 6 October 2011 AVB telephoned Mr Lewenberg at his firm. Mr Lewenberg says that he had never previously spoken to AVB. Unbeknownst to Mr Lewenberg, AVB recorded this conversation on his mobile phone. The recording was later transcribed.
2. Upon being told that AVB was the person calling, Mr Lewenberg said the following:

Mr LEWENBERG: Oh [AVB], I don't know whether I can speak to you. ...you assisted the police in the matter that I appeared in court and I don't really - [think that there is] any purpose my speaking to you, is there?

I don't think that I should be discussing anything involving the proceeding. If there's some questions you want to ask put it in writing or get the person to check with me.

1. AVB then said that he was a good friend of Mr Rosenbaum, a senior member of the legal profession with whom Mr Lewenberg is professionally and personally familiar. The following exchange then occurred:

Mr LEWENBERG: Well if Norman [Rosenbaum] wants to speak to me I'm happy to speak to Norman at any time.

Mr LEWENBERG: Yeah, No. Speak to Norman. I'm happy to speak to him.

AVB: Well so Alex, all I just wanted to say was that everyone says you've got this great reputation ... and as you said there's a [sic] unfortunate reality in the world what's called a broken telephone where what ends up here... and I hold by that notion and I didn't - I wouldn't - and I don't think at all for one moment that -

Mr LEWENBERG: Ask Norman [Rosenbaum] to speak to me. I'd be delighted to speak to Norman. Norman and I have been friends for a long time.

AVB: Yeah... 'cause someone said that you - that you had said that I jumped up in court and I was the one responsible for the police taking away his passport and I just said - I thought to myself, Alex wouldn't say something like that 'cause it's not what happened.

Mr LEWENBERG: No, no, what I did say - I did say that I - there was apparent conversation between the Informant and you concerning - about the passport because the coppers wouldn't have a clue. The question of a passport came up and I then observed you speak to the informant. The informant then moved to the prosecutor and mentioned about Jew able to get a passport from embassy and I said, "This is crap. Utter rubbish"

And you remember in court - remember my rising. That's totally - there's a concept of returning - Jews returning to Israel but that but that does not involve entitlement to a passport. You remember - that's - that's the only conversation I had with the person I said to her [sic], "I'm disappointed that you would participate", and that was my disappointment and that's why I'm not exactly delighted that another Yid would assist police against an accused no matter whatever he's accused of. That's the reason why I was very disappointed because there is a tradition, if not a religious implement that you do not assist against Abraham, assisted by Yid and I was concerned about that.

Mr LEWENBERG: [It is] [a] religious principle too. I mean Maser - principle of Maser is well known. I'm not suggesting you are but the fact that you were prepared to speak to the Informant upset me enormously because it's - I didn't regard you - you - personally you who went through what you went through in Balaclava Road and what you lived through. I know you're Australian born and you came from Perth but to - for you to even to assist disappointed me.

AVB: [T]he whole issue of the passport was - was separate and distinct from anything to do with me.

Mr LEWNEBERG: It's only that I observed it as I turned around and to my dismay I saw you speaking to the informant and don't tell me you haven't spoken to the informant

AVB: [Why] I'm troubled is (indistinct) the whole conditions of bail was to do with the passport and travel documents was nothing to do with [me, AVB]

Mr LEWENBERG: Well I suggest, but if someone tells the informant that in fact there's a - for a person of particular state of background they could go to embassy and travel without passport therefore the surrender of passport would be inconclusive -

Mr LEWENBERG: I don't know what you said to her but a question arose was to whether the course suggested would occur subsequent to your discussion with - your discussing with the policewoman or the informant.

AVB: Yeah, look I don't - I don't - that's not my recollection and -

Mr LEWENBERG: [L]et me tell you, most certainly the question of a person going to embassy and securing - securing a passport was at the very end of debate when I had to argue that the right of return does not involve issue of passport.

1. The telephone conversation (recorded) ended a short time later in friendly terms.

1. On 4 February 2015 AVB gave evidence in Melbourne to the Royal Commission into Institutional Responses to Child Sexual Abuse. His evidence was transcribed.
2. AVB's evidence to the Royal Commission included evidence of his conduct at the bail hearing and of the content of his telephone conversation with Mr Lewenberg. AVB's evidence to the Royal Commission was anonymised and reported under a pseudonym.

1. On 10 March 2015 AVB lodged a complaint (the complaint) with the Applicant about Mr Lewenberg's conduct.

1. On 10 April 2015 the Applicant published the complaint to Mr Lewenberg (the publication letter) and sought a full written explanation of his conduct.
2. On 22 April 2015 Mr Lewenberg replied to the publication letter.
3. On 27 May 2015 the Applicant wrote again to Mr Lewenberg to which letter Mr Lewenberg replied on 3 June 2015.
4. On 26 August 2015 the Applicant wrote to Mr Lewenberg, to say that the investigation of the complaint was close to being finalised, to explain what the investigation indicated and to offer Mr Lewenberg an opportunity to provide further written submissions or material that he would like taken into consideration before the Applicant made a decision under section 4.4.13 of the Act to deal with the matter.
5. On 1 September 2015 Mr Lewenberg replied to the Applicant's 26 August 2015 letter.
6. On 25 September 2015 the Applicant sent a Notice of Decision following the Investigation of the complaint to Mr Lewenberg and to AVB.

1. The Respondent is essentially the subject of two Charges laid in the alternative and arising out of conduct now admitted on 6 September and 6 October 2011.
2. Before the Tribunal, the Respondent, through his Counsel, pleaded guilty to unsatisfactory professional conduct only, in relation to the agreed conduct on 6 September and 6 October 2011.
3. The parties agreed that, to the extent to which the Respondent is found to have contravened the Professional Conduct and Practice Rules 2005, specifically Rule 30.1.2, such contravention could satisfy either category of professional misconduct or unsatisfactory professional conduct, according to the perceived seriousness of such conduct.
4. I propose to adopt the approach submitted by Counsel for the Respondent when assessing the impugned conduct on each occasion, having regard to the following key questions:
   • (a) What were the words spoken;
   • (b) How should such words be judged prospectively, when said;
   • (c) What was the context in which the words were uttered;
   • (d) What were the circumstances under which the words were spoken; and
   • (e) Were the words spontaneous/reactive or strategic and planned.
5. In addition to the Statement of Agreed Facts, I propose to have regard to the transcript of the bail hearing; and the witness statement of Complainant, AVB.

BAIL HEARING AT MAGISTRATES' COURT ON 6 SEPTEMBER 2011

1. Respondent's Counsel submitted, in summary, that the Respondent uttered the impugned words at the bail hearing, spontaneously, without forethought and in response to his observations of AVB speaking to the Informant, from which he deduced that AVB had conveyed misinformation which became the subject of the Prosecutor's submission to the Magistrate. In essence, Counsel submitted that the remark made by the Respondent merely reflected his disappointment at the misinformation. In my view, a considered analysis of the bail hearing and the true import of the words spoken, do not support the characterisation proffered by Respondent's Counsel. In this regard, I also note that in the Respondent's letter to the Applicant, dated 3 June 2015, after intimating that the questions raised by the Applicant in his letter of 27 May 2015 were, in effect anti-Semitic, the Respondent makes the following assertion:

At no time have I expressed in conversation with the Complainant or any other person that "Jewish people should not assist the Police investigating another Jewish person" but rather what I said and what must be understood as said by me to a person purporting to be an observant Jew who by his conduct should not defame another person without justification or basis... A person should not defame another individual (especially not before a Court) whose names are being mentioned in Court so as to cause those individuals harm and embarrassment by adverse comments about those persons in open Court. It is those public utterings about people who are not before the Court that I take strong objection to and uttering those names in the manner uttered by the complainant was regarded by me as "reported" to Police without justification or basis.[9]

1. The Respondent's assertion that AVB's alleged defaming of a person or persons in open Court or elsewhere was in fact the subject matter of the Respondent's remark at the bail hearing or his comments in the subsequent telephone conversation, is completely erroneous.
2. I further note that by letter dated 26 August 2015, the Applicant summarised the result of the investigation following AVB's complaint, seeking the Respondent's response and any further submissions or material which he wished to have taken into account. In response, the Respondent, by letter dated 1 September 2015 to the Applicant, stated, without further elaboration:
   1. The factual allegations as expressed by you are incorrect.
   2. The conclusion that you draw from the factual finding that you make is incorrect.
3. The factual allegations contained in the Applicant's letter of 26 August 2015 are now incorporated in the Statement of Agreed Facts.
4. At the bail hearing for David Cyprys on 6 September 2011, which was attended by AVB, the prosecution did not contest bail as long as it was subject to satisfactory conditions which addressed concerns as to the accused's potential flight risk. Mr Cyprys was then charged with 29 offences, including gross indecency and indecent assault against 12 complainants between the ages of 7 and 17 years.
5. During the course of the bail hearing, the Informant identified three categories of conditions sought: supervised access to children; a surety; and production of any current passport prior to release on bail. In relation to the passport concerns the Informant gave the following evidence:

There appears to be a problem with him being unable to locate his passport, and it is quite possible that he is at high risk of flight...The accused is still connected with people who would probably make it possible for him to leave the country if that's what was required for him to do...He [the accused] said he was unable to locate his passport...I think if the accused's parents were born in Israel, I don't - - I think he's just entitled automatically to a passport to travel to Israel, so I'm not a hundred percent sure but that's my belief.[10]

1. Under cross-examination by the Respondent, the Informant clarified that she did not know whether the parents of the accused were born in Poland or Israel. However:

...it was my belief that if his parents were born in Israel that he could obtain a passport to travel to Israel.[11]

1. The above evidence was given by the Informant prior to a conversation between the Informant and AVB, prompted by a direction from the Magistrate. At the conclusion of evidence, the Magistrate asked the Prosecutor as to what specific [bail] conditions were sought. In response, after describing a list of conditions, the Prosecutor made a further submission that the accused might be able to obtain another passport, even after surrendering his current passport. This then led to the Magistrate requesting the Prosecutor, through the Informant, to speak to a gentleman in the Court whom we now know to have been AVB:[12]

PROSECUTOR: Your Honour, although there has been some media attention given to this matter, the concerns are that circumstances have now obviously changed, the charges having in fact been now laid.

The Informant has concerns in relation to the possibility of a passport being - - an additional passport being obtained if one is in fact surrendered, and concerns that the accused may have access to friends or associates who are able to assist him if he chooses to leave the jurisdiction.

HER HONOUR: Well, does the Informant or do you, through instructions, have any knowledge as to whether the accused is eligible for a passport other than an Australian passport by virtue of his heritage? I don't know the answer to that question, and it occurs to me that the information I've been given is vague in that respect.

PROSECUTOR: Your Honour, the only information that I can put to Your Honour is what was put by the Informant.

HER HONOUR: Do you have any means of determining whether this man has the ability, for example, to apply for and obtain a passport from another nation?

DET SNR CONST METCHER: Your Honour, we have attempted to make those enquiries and they are still being undertaken as we speak.

HER HONOUR: Would you like to just take a seat or have a word to that gentleman for me, please. Do you have any further instructions?

PROSECUTOR: Your Honour, the information that's been provided to me, Your Honour, is that there is a right to apply for an Israeli passport for any Jewish person [emphasis added].

1. Interposing at this point, I note that AVB's recollection of what he said to the Informant is contained in his witness statement as follows:

The charge informant asked me about my understanding of the Israeli Government's Law of Return. I explained to her what I knew, which is that all Jews have an automatic right to Israeli citizenship. I believe she conveyed this to the police prosecutor, who in turn conveyed this to the Magistrate. The court subsequently ordered that Mr Cyprys remain in custody until his passports were located and surrendered.[13]

1. The transcript of the Magistrates' Court hearing continues as follows:

HER HONOUR: I'm not Jewish, as you know, Mr Lewenberg - -

HER HONOUR: My - - I said I'm certainly not Jewish, as you well know, but it certainly was my understanding from my own general knowledge that that was the case.

MR LEWENBERG: It's a right to return to the homeland - -

MR LEWENBERG: But it's not a right - - it's a position right to stay in Israel, but it's - - I'm not giving advice on Israeli law... But as a Jew who knows some of the matters it appears that the State of Israel may remove persons from the State of Israel and there have been a number of cases in the United States...[14]

1. In my view, the following observations may be made, assuming the accuracy of the transcript[15] and accepting AVB's recollection of what he said to the Informant, as truthful and accurate:
   • (a) During her evidence, the Informant expressed concerns to the effect that the accused was a flight risk and may be able to obtain an additional passport;
   • (b) The Informant believed that if the accused's parents were born in Israel then he had a right to an Israeli passport;
   • (c) AVB subsequently told the Informant, in response to her enquiry, that all Jews have an automatic right to Israeli citizenship;
   • (d) The Prosecutor informed the Magistrate that there is a right to apply for an Israeli passport for any Jewish person; and
   • (e) The Respondent has admitted that he did not in fact hear what was said to the Informant by AVB.
2. At this point, what was said to the Magistrate would appear to be uncontroversial, that is, a Jew has a right to apply for an Israeli passport. It was never suggested to the Magistrate that a passport would be issued automatically, as of right. The Respondent appears to have misunderstood what was in fact said and, in any event, appears to merely draw a distinction between the Law of Return and the right to citizenship or a passport.
3. It is matter of public record that The Law of Return was passed by the Israeli Parliament [Knesset] in 1950 granting every Jew in the world the right to settle in Israel and become an Israeli citizen. To that end, an 'oleh' visa [a Jew immigrating to Israel] shall be granted to every Jew who has expressed his desire to settle in Israel unless the Minister of Interior is satisfied that the applicant: (1) is engaged in an activity directed against the Jewish people; or (2) is likely to endanger public health or the security of the State; or (3) is a person with a criminal past, likely to endanger public welfare.[16] Although, the Respondent was somewhat vague in his objection, presumably these were the kinds of provisos to which he was referring and which has led to some Jews being expelled from Israel.
4. In any event, it is readily apparent from the telephone conversation between AVB and the Respondent on 6 October 2012 that AVB believed that the information which he gave to the Informant was correct. The information which the Prosecutor then gave to the Magistrate was also correct; and the point of clarification, albeit not clearly explained by the Respondent, was also correct.
5. It is in this context therefore that the remark made by the Respondent to the father of the accused [Cyprys] must be assessed. After enquiring as to the identity of AVB and being told that he was an Orthodox Jew, the Respondent admits to saying words to the effect:

It is most disappointing when a person who has nothing to do with the case and being a fellow Jew does wilfully seek to hinder another Jew in his defence of criminal charges.

1. I also note that in the Respondent's Notice of Admissions dated 15 February 2016, he states the following at paragraph 6:

Admits that on a date unknown between 6 and 10 September 2011 he expressed to [Mr AB] that he was disappointed that AVB, who had no involvement in the proceedings, should be actively aggressive and involved in opposing a bail application of his (the Respondent's) then client.

1. Taken in context, I make the following observations:
   • (a) There was never any question that bail, per se, was opposed by the Prosecution and certainly never any question that AVB was in a position to oppose bail;
   • (b) After concerns had already been expressed by the Informant about the accused being a potential flight risk and possibly having the means to acquire an additional passport, at no stage during the cross-examination of the Informant did the Respondent ask any questions about the Law of Return or restrictions which may apply to it;
   • (c) The impugned remark does not express concern about inaccurate information. Rather, the disappointment is expressed wholly in terms of a fellow Jew wilfully seeking to hinder another Jew in his defence of criminal charges;
   • (d) In any event, the hearing was not about the accused's defence of the criminal charges. Rather, it was a hearing to determine an application for bail, uncontested save for the determination of suitable conditions;
   • (e) The conditions for bail, foreshadowed by the Prosecutor at the commencement of the hearing, in substance, were the same conditions which the Magistrate ultimately granted; and
   • (f) The mitigating effect of any spontaneity attaching to the remark is undermined by the admitted conversation which the Respondent subsequently chose to have with AVB's foster parent, [Mr AB].
2. I will return to the gravity of the impugned words said at the bail hearing shortly.

1. AVB declared a witness statement on 20 October 2015,[17] which was tendered by the Applicant, without objection. The statement recites in part:
   • (a) In about May 2011, AVB made a complaint to Victoria police about alleged sexual acts committed against him whilst a child by David Cyprys;
   • (b) Following receipt of such complaint, the police asked AVB for his assistance to engage with the community and encourage members to come forward with information that might assist the police to investigate other alleged instances of child sexual abuse involving Cyprys;
   • (c) AVB attended the bail hearing for Cyprys:

... Because I was interested in its outcome and felt a sense of responsibility for bringing the matter to that point.[18]

(d) AVB understood that the bail hearing mainly concerned what conditions a grant of bail would be made subject, as the police Informant was concerned that Cyprys had not surrendered his passports and therefore posed a flight risk;

(e) During the course of the bail hearing, the Magistrate asked the Prosecutor to take further instructions from the charge Informant:

The charge informant asked me about my understanding of the Israeli Government's Law of Return. I explained to her what I knew, which is that all Jews have an automatic right to Israeli citizenship. I believe she conveyed this to the police prosecutor, who in turn conveyed this to the Magistrate. The court subsequently ordered that Mr Cyprys remain in custody until his passports were located and surrendered.[19]

(f) AVB then refers to telephone calls which he received from his employer and his foster father and subsequent conversations with a number of other people in his community who had become aware that he had assisted police and expressed their strong disapproval and disappointment. He was told that what he did was wrong and he was effectively shunned within his own community;

(g) Concerned that his participation at the bail hearing had been misrepresented, he telephoned the Respondent, recording the conversation in a manner approved by police;

(h) AVB summarised his understanding of the telephone conversation as follows:[20]

During the telephone conversation Mr Lewenberg said to me words to the effect that he was disappointed that I had participated in the bail hearing because my assistance ran contrary to Jewish tradition. Mr Lewenberg referred to the principle of mesirah, a Hebrew term that refers to the prohibition of one Jew informing to, or assisting, non-Jewish authorities to assist in the investigation or prosecution of another Jew. A person who breaches the mesirah principle is known as a maser. The term is pejorative and carries the implication that the person assisting the non-Jewish authorities should be ostracised, at minimum. Historically, a maser could be killed as punishment for his or her transgression.

1. Before the Royal Commission into Institutional Responses to Child Sexual Abuse,[21] AVB gave evidence that following the bail hearing, he was subjected to adverse comment about his presence at court and the assistance to police in a number of blogs and by people from within his community directly to him. AVB described the comment:

It was a moser. I was somebody that had gone against the community and I had brought it in great shame...

1. AVB told the Commission that he had been specifically told that the Respondent had told other people that he had been at the Magistrates' Court. It was damaging his personal and professional relationships and consequently he decided to telephone the Respondent. AVB further told the Royal Commission that the conversation with the Respondent [detailed above] confirmed his belief in the profound influence of the prohibition on mesirah:

Lewenberg, I do not believe, would describe himself as an Orthodox or practising Jew. He is more likely, I believe, to be the type of Jew that go to synagogue if there is an occasion within the family or a high holiday. So the fact that a person of that nature, who is not like myself, as observant and necessarily engaging in religious practise every day, articulated the assertion that maser is a requirement, a tradition and part of who we are and our laws demonstrated the degree to which it permeated our culture and our beliefs; that it was central to who we are irrespective of whether you were religious or not religious. It was part of Royal Commission the make-up of a Jew... You can't get any lower than a maser.[22]

1. I endorse the submissions of Applicant's Counsel to the effect that all Charges must be assessed against the following background:
   • (a) Members of the public look to the administration of justice to afford some protection to witnesses or those rendering assistance to police not to be subjected to expressions of disapproval about their assisting the police. The administration of justice in this State depends on participation and co-operation of all members of the public. The expression of a view by a legal practitioner indicating that some members of the public should not participate as complainants or witnesses in the criminal process runs counter to the fundamentals of the criminal justice system in Victoria; and
   • (b) The remarks complained of which occurred respectively on 6 September 2011 and 6 October 2011, which the Respondent admits, convey that one Jew should not act against another to help police or a police case. That is to say, that whatever a citizen's duty may be in regard to assisting police, the fact that that citizen is of the Jewish faith or culture should come ahead of whatever duty she or he may have as a citizen. In other words, for one Jew to help the police against another Jew is reprehensible or, at the least, to be discouraged.
2. I do not understand that the Respondent in any way contests the propositions made under (a) above. Furthermore, through his Counsel, the Respondent accepts that what he did was clearly wrong and 'he should not have clothed his language' in the way in which he did; and there should not be special deals made for special people.
3. In regard to Charges 2 and 4, Applicant's Counsel cited the authority of Re a Solicitor[23] in which Dean J had occasion to endorse earlier English authority which formulated the principle that before a Solicitor may be found guilty of misconduct it must be shown that he has been personally implicated in conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency. In this case, in contrast to the facts in the case of Re a Solicitor, there is no question that the Respondent was personally implicated in the impugned conduct.

6 September 2011 Remark Made At Magistrates' Court Bail Hearing

1. While the words spoken on the first occasion do not explicitly make any reference to the prohibition of mesirah, as indicated above, the comment is not critical of an error in giving incorrect information, but rather a criticism of a Jew assisting police against the interests of another Jew. The bail conditions sought and the concerns held by the police Informant were conveyed to the Magistrate through the evidence of the Informant. There was nothing said during the course of the hearing which allayed those concerns. The Respondent had every opportunity to correct or clarify any misinformation or misapprehension conveyed by the Prosecutor. It is a nonsense to suggest that any assistance provided by AVB to the Informant had any bearing upon the ability of the accused to defend the charges against him.
2. Counsel for the Applicant, submitted that the words spoken at the Magistrates' Court represent the Respondent's expression of his disapproval of one Jew apparently providing assistance to the prosecuting authorities against another Jew. In my view, this is patently clear. The transcript confirms that AVB was in fact asked to provide information by the Informant, at the request of the Magistrate. The submission subsequently made by the Prosecutor confirmed the understanding already held by the Magistrate. The Respondent did not purport to be familiar in any detail with the Law of Return or the right of a Jewish Australian citizen to seek an Israeli passport. The Respondent said to the Magistrate:

I'm not giving advice on Israeli law... But as a Jew who knows some of the matters it appears that the State of Israel may remove persons from the State of Israel and there been a number of cases in the United States...

1. As indicated above, this was apparently a rather vague reference to the provisos to a right of entry provided by the Law of Return and did not frankly acknowledge the principle right apparently embodied in the Israeli law.

1. The telephone conversation contains comment and criticism by the Respondent, expressing his disapproval of one Jew apparently providing assistance to the prosecuting authorities against another Jew, no matter what the nature of the charges.
2. Notably, the Respondent says to AVB:

... I'm not exactly delighted that another Yid would assist police against an accused no matter whatever he's accused of [emphasis added].

1. However, in my view, consistent with the submission of Applicant's Counsel, the commentary goes significantly further than the remark made during the bail hearing. While the Respondent took the call from AVB, without actually knowing its purpose, he chose to engage in conversation from his professional premises, where he could have politely terminated the call at the outset, as he initially intimated he should do. Instead, he engaged in a direct verbal assault upon AVB, which in light of AVB's evidence before the Royal Commission, can only have been intended to condemn AVB in the harshest and most hurtful way. A further aggravating feature is the fact that the Respondent, as a senior practising member of the legal profession of many years, was effectively conveying to AVB that he condones Jewish people behaving in a way which undermines the Australian justice system.
2. In my view, by his words the Respondent equated the conduct of AVB to that of a 'maser'. The only reasonable inference to be drawn from the comments made by the Respondent to AVB in their telephone conversation, in the context of his admission of at least one conversation he had with AVB's foster parent, is that the Respondent was well aware of the devastating impact upon AVB's personal and professional life, within his orthodox community, and that his words were in effect endorsing community condemnation.
3. I concur with Applicant's Counsel to the extent that the import of the words used, at the time on each occasion when they were said, leads to two plain inferences:
   • (a) Whereas the Respondent presumably believes that it is appropriate for a Jew to assist in such a manner against a non-Jewish defendant;
   • (b) Conversely, the Respondent believes that fellow Jews should 'stick together' and not assist the secular authorities one against another.
4. Implicitly, the Respondent has expounded the view that Jewish defendants should be protected in a manner that non-Jewish defendants would not be.
5. It is axiomatic that such a view, and the underlying belief system which gives rise to such view, is antithetical to the principle of equality before the law, so fundamental to a democratic society such as Australia.
6. Applicant's Counsel also referred to the fundamental principles underlying our judicial system which flow from the principle of equality before the law, namely, that justice should be dispensed objectively, without fear or favour and without regard to any characteristic such as race or religious faith. The gravity of the conduct committed by the Respondent on each occasion, but particularly on the second occasion, lies in the inescapable conclusion that the beliefs which the Respondent's words convey undermine or tend to undermine such principles. In mythical terms, as Counsel for the Applicant so colourfully described, it is as if the blindfold of Justitia, the goddess of justice, were effectively removed so that she can distinguish the Jewish defendant from the non-Jewish defendant and subjectively accord favourable treatment to the former. Such a notion is, of course, completely intolerable and ought to be eschewed by every member of the legal profession.
7. How then is such conduct to be measured in terms of Professional Conduct and Practice Rule 30.1.2? In my view, it is self-evident that for a legal practitioner to hold and express such beliefs offends all of the three limbs of Rule 30.1.2(a)-(c):
   • (a) First, the administration of justice is or at least tends to be prejudiced, if practitioners give expression to beliefs which run counter to the principle of equality before the law. The prejudice or potential for prejudice, is clear: Jewish defendants would or might be, advantaged in a way that non-Jewish defendants would or might not;
   • (b) Secondly, public confidence in the administration of justice diminishes if, as here, it becomes known that a legal practitioner (appearing before a court as an advocate) holds such beliefs, with the potentially prejudicial consequences already explored; and
   • (c) Thirdly, the Respondent's ability to practise according to the legal profession rules is adversely prejudiced because of the beliefs he espoused. In particular, he would be unable to conform with Rule 13 - 'Independence, avoidance of bias', which provides, in part:

A practitioner must not act as the mere mouthpiece of the client or of the instructing practitioner and must exercise the forensic judgments called for during the case independently, after appropriate consideration of the client's and any instructing practitioner's wishes where applicable.

Except where otherwise required by law or a court, a practitioner must not make submissions or express views to a court on any material evidence or material issue in the case in terms which convey or appear to convey the practitioner's personal opinion on the merits of that evidence or issue.

1. Respondent's Counsel submitted that Rule 30.1.2(c) was not made out by reason that the words spoken, in each case, do not adversely prejudice the Respondent's ability to practice. Counsel submitted that the Tribunal could not decide that he would always conduct his legal practice in a particular way for all time. In my view, this submission is significantly undermined by the evidence of AVB given at the Royal Commission. It is not a question of whether every aspect of the Respondent's legal practice would be prejudiced by the words espoused. Rather, it is a question as to whether a belief system is so firmly entrenched that it affects his approach, in any context, to his practise of law. On two separate occasions, it clearly did. His words were spoken during the conduct of a bail hearing while he was representing the accused and conveyed words to a party related to the accused which conveyed that the behaviour of AVB was unacceptable. In his subsequent telephone conversation with AVB, the Respondent went further, not only disapproving the involvement of AVB but suggesting that he had contravened an historic Jewish convention or precedent, for which the most serious condemnation and stigmatisation would arise under the principle of 'mesirah'. In the absence of a clear statement from the Respondent, it is impossible to reconcile the clear views expressed with his continued ability to comply with Rule 30.1.2(c). However, even if a breach of Rule 30.1.2(c) were not made out, in my view, the grave nature of the breaches of Rule 30.1.2(a) and (b) on each occasion, warrant the findings made below.
2. In regard to Charge 1, in my view, it follows from the above analysis that the contravention of Rule 30.1.2 constitutes an extremely serious breach which properly falls into the category of professional misconduct.
3. In addition, although it is unnecessary in the circumstances to consider the alternative Charge 2, in my view, the conduct on 6 September 2011, is conduct which, reputable and competent practitioners would reasonably regard as disgraceful and dishonourable for the Respondent to have said what he did. This is so because the words evidence the Respondent's denial of the fundamental principle of equality before the law. Competent and reputable practitioners would believe it to be both straightforward and conventional that, if able to, a Jew should assist the prosecuting authorities whether the accused person was a Jew or not.
4. By extension, therefore, in my view, such practitioners would reasonably regard it as disgraceful or dishonourable for a fellow practitioner to espouse a different view.
5. In regard to Charge 3, there is equally no question that the contravention of Rule 30.1.2 constitutes an extremely serious breach, which properly falls into the category of professional misconduct.
6. For the Respondent, as a legal practitioner, to suggest that members of the Jewish community or indeed any community or religious affiliation, should close ranks and decline to assist in the prosecution of charges of this nature is truly shocking.
7. If such a position had been adopted by other Jews, it not only would have had the capacity to hamper the prosecution of a child sex offender but, also, previously, to have allowed Mr Cyprys' offending to continue for longer than it might otherwise have done.
8. The Respondent also said the following to AVB in the course of the telephone conversation:

... there is a tradition, if not a religious implement [impediment/imperative?], that you do not assist against Abraham ...

[It is] [a] religious principle too. I mean Maser - principle of maser is well known.

1. It is uncontroversial that a maser (or moser) is a rabbinic term for a Jew who assists or has assisted the proper authorities against a fellow Jew.[24] AVB confirmed in his evidence before the Royal Commission that a maser is inevitably subjected to ostracism, or worse, within the Jewish community. It is a concept that has existed for centuries, for which there is no room in or in relation to a legal practitioner's conduct in contemporary society.
2. It is discreditable for the Respondent, practising law as he does in a 21st century secular society, to nevertheless proselytise his misguided concept of religious or cultural solidarity, thus effectively allowing such views to take precedence over his professional obligation to uphold the principle of equality before the law.
3. Consistent with Applicant Counsel's submission, I draw the only reasonable inference that the Respondent not only espouses such views but that he practises law in accordance with them.
4. In conclusion, in relation to Charge 3, for all the reasons advanced, I am satisfied that the words spoken in the telephone conversation, having particular regard to the context and import of such words and the consequences for AVB, constitute a most serious breach of all of the three limbs of Rule 30.1.2(a)-(c) of the Professional Conduct and Practice Rules 2005 and properly should be regarded as professional misconduct.
5. In addition, although it is unnecessary in the circumstances to consider the alternative Charge 4, in my view, it is also clearly made out. The conduct on 6 October 2011, comprised in the words spoken by the Respondent to AVB, is conduct which reputable and competent practitioners would reasonably regard as disgraceful and dishonourable. As indicated above, the views which the Respondent expressed, as well as being clearly designed to condemn and disgrace AVB within his community, are utterly inconsistent with his obligations as a legal practitioner, in that they evidence a denial of the fundamental principle of equality before the law. Competent and reputable practitioners would also believe it to be both straightforward and conventional that, if able to, a Jew should assist the prosecuting authorities whether the accused person was a Jew or not.

1. Having carefully scrutinised the evidence as comprised in the Statement of Admitted Facts and having regard to other documents referred to, giving context and explanation to such evidence, the Tribunal is comfortably satisfied, on the balance of probabilities, that the relevant facts in each case prove the corresponding Charge 1 and Charge 3. Accordingly, the Tribunal finds Charges 1 and 3 are proven.
2. A further hearing will be held to hear submissions in relation to appropriate determinations, in light of the Tribunal's findings.

[1] [1938] HCA 34; 60 CLR 336.

[3] [2012] VSCA 198 (24 August 2012).

[5] Percy (1998) VSC 70, (Eames J); PL (No 4) [2004] VSC 21R, [45] (Kaye J); SKD [2009] VSC 363, [7] (Whelan J).

[6] [2013] VSCA 305.

[7] Evidence Act 2008 s 4.

[13] Exhibit A: Para [7] of Statement.

[15] The transcript accords with my hearing of the audio.

[16] Law of Return 5710-1950 Section 2(b) as amended - http://www.mfa.gov.il/mfa/mfa-archive/1950-1959.

[23] [1960] VicRp 96; [1960] VR 617 at 620.

[24] Derived from the Hebrew verb mesira - to turn over.