1. The Respondent, Nicholas Logan, having pleaded guilty to Charges of professional misconduct and the Tribunal being comfortably satisfied on the evidence that the Charges are proven, the Tribunal finds Nicholas Logan guilty of professional misconduct in accordance with the following Charges, more particularly detailed in the Reasons:

(a) misconduct at common law within the inclusive definition of professional misconduct of s 4.4.3(1) of the Legal Profession Act 2004 (LP Act) in that Nicholas Logan caused or allowed the legal firm for which he was the sole legal practitioner (Firm), to purport to act, to issue and maintain legal proceedings without instructions from Ms Menhennet;

(b) misconduct at common law within the inclusive definition of professional misconduct of s 4.4.3(1) of the LP Act, in that Nicholas Logan caused or allowed the Firm to purport to act for Ms Menhennet and to issue the Menhennet proceedings on her behalf, without seeking instructions or advising;

(c) professional misconduct within the meaning of s 2.7.11 and s 4.4.4(a) of the LP Act, by engaging in conduct that adversely affected the provision of legal services by the Firm in that letters sent by Mr Keisoglu, a non-Australian legal practitioner director of the Firm, was conduct that was dishonest or alternatively made false and misleading statements;

(d) professional misconduct within the meaning of s 4.4.3(1) and s.4.4.6(b) of the LP Act by the wilful failure of Nicholas Logan to comply with the Undertaking given by him to the Commissioner on or about 21 December 2012;

(e) misconduct at common law within the inclusive definition of professional misconduct of s 4.4.3(1) of the LP Act in that Nicholas Logan caused or allowed the Firm to act, to issue and maintain legal proceedings without instructions from Mr Helmy;

(f) misconduct at common law within the inclusive definition of professional misconduct of s 4.4.3(1) of the LP Act, in that Nicholas Logan caused or allowed the Firm to purport to act for Mr Helmy and to issue the Helmy proceedings on his behalf, without seeking instructions or advising;

(g) professional misconduct within the meaning of s 4.4.3(1) and s.4.4.6(b) of the LP Act by the wilful failure of Nicholas Logan to comply with the Undertaking given by him to the Commissioner on or about 21 December 2012.

1. Pursuant to s 4.4.17(b) of the Legal Profession Act 2004, the local practicing certificate of Nicholas Logan is cancelled with effect from 1 May 2017.
2. Pursuant to s 4.4.17(c) and s 4.4.19(j) of the Legal Profession Act 2004 and subject to Order 4 below, Nicholas Logan shall be ineligible to apply for or be granted a new local practicing certificate before 1 May 2019.
3. Pursuant to s 4.4.19(d) and (g) of the Legal Profession Act 2004 Nicholas Logan shall be ineligible to apply for or be granted a local practising certificate which permits him to practise as a principal of a law practice before having first practised, for not less than 18 months, under the supervision of a principal of a law practice under an employee practising certificate as an employee solicitor.
4. Pursuant to clause 46D of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 and s 4.4.19(n) of the Legal Profession Act 2004, Nicholas Logan shall pay the Commissioner's costs, to be assessed on the standard basis on the County Court Scale by the Costs Court in default of agreement.

Mr T J Scotter of Counsel, instructed by the Solicitor to the Legal Services Commissioner

1. The Victorian Legal Services Commissioner (Commissioner) applies to the Victorian Civil and Administrative Tribunal (Tribunal) pursuant to s 4.4.13(2) of the Legal Profession Act 2004 (LP Act) for orders under Division 4 of Part 4.4 of the LP Act in respect of certain charges made against Nicholas Logan (Respondent).
2. Pursuant to clause 26 of Schedule 4 of Division 7 of the Legal Profession Uniform Law Application Act 2014, the Commissioner is empowered to continue to deal with an uncompleted complaint or investigation in accordance with the provisions of the LP Act.
3. The Respondent now comes before the Tribunal pleading guilty to all charges set out below. Accordingly, provided that the Tribunal is comfortably satisfied that the charges are all proven, the Tribunal is now only concerned with an appropriate Determination.

Misconduct at Common Law by acting, issuing and maintaining the proceedings

1. You are guilty of misconduct at common law within the inclusive definition of professional misconduct of s 4.4.3(1) of the LP Act, in that you caused or allowed the Firm[1] to:

(a) purport to act for Ms Menhennet (including sending the Letters and the Offer Letters and making the 7 February 2013 offer) without any or any proper instructions to do so in the circumstances;

(b) file the Menhennet proceedings, without any or any proper instructions to do so in the circumstances; and

(c) continue to act in the Menhennet proceedings until 7 February 2013 without any or any proper instructions to do so;

(d) had knowledge of the matters in (a) to (c) above, alternatively should have known the matters in (a) to (c) above; and/or

(e) was the legal practitioner from the Firm responsible for commencing and continuing the Menhennet proceedings.

1. The particulars relied upon are those set out in paragraphs 1-4, 7-62 and 65-75 of the Statement of Agreed Facts.

Misconduct at Common Law in acting without seeking instructions or advising

1. You are guilty of misconduct at common law within the inclusive definition of professional misconduct of s 4.4.3(1) of the LP Act, in that you caused or allowed the Firm to purport to act for Ms Menhennet and to issue the Menhennet proceedings on her behalf, without:

(a) clarifying what, if any, her instructions were;

(b) seeking full instructions as to the accident, the damage to her vehicle and her losses suffered;

(c) giving Ms Menhennet any advice as to the possible recovery and risks involved in issuing proceedings;

(d) giving Ms Menhennet any advice as to her rights under her insurance policy with the RACV;

(e) giving Ms Menhennet any advice as to her possible liability for costs to other parties; or

(f) giving Ms Menhennet any advice as to the obligations under the Civil Procedure Act 2010.

1. The particulars relied upon are those set out in paragraphs 1-4, 7-62 and 65-75 of the Statement of Agreed Facts.

Engaging in conduct that adversely affected the provision of legal services by the Firm.

1. You are guilty of professional misconduct within the meaning of s 2.7.11 and/or s 4.4.4(a) of the LP Act, by Mr Keisoglu, a non-Australian legal practitioner director of the Firm sending the Dishonest Letters, which adversely affected the provision of legal services by the Firm, in that the conduct was dishonest or alternatively made false and misleading statements.

1. The particulars relied upon are those set out in paragraphs 1-4, 7-63 and 65-75 of the Statement of Agreed Facts.

1. You are guilty of professional misconduct within the meaning of s 4.4.6(b) of the LP Act by your wilful failure to comply with the Undertaking given to the Commissioner on or about 21 December 2012.

1. The particulars relied upon are those set out in paragraphs 1-6, 7-62 and 64-75 of the Statement of Agreed Facts.

Misconduct at Common Law by acting, issuing and maintaining the proceedings

1. You are guilty of misconduct at common law within the inclusive definition of professional misconduct of s 4.4.3(1) of the LP Act, in that you caused or allowed the Firm to:

(a) purport to act for Mr Helmy without any or any proper instructions to do so in the circumstances;

(b) file the Helmy proceedings, without any or any proper instructions to do so in the circumstances; and

(c) continue to act in the Helmy proceedings until 2 August 2013 without any or any proper instructions to do so

(d) had knowledge of the matters in (a) to (c) above, alternatively should have known the matters in (a) to (c) above; and/or

(e) was the legal practitioner from the Firm responsible for commencing and continuing the Helmy proceedings.

1. The particulars relied upon are those set out in paragraphs 1-4, 76-102 and 104-111 of the Statement of Agreed Facts.

Misconduct at Common Law in acting without seeking instructions or advising

1. You are guilty of misconduct at common law within the inclusive definition of professional misconduct of s 4.4.3(1) of the LP Act, in that you caused or allowed the Firm to purport to act for Mr Helmy and to issue the Helmy proceedings on his behalf, without:

(a) clarifying what, if any, his instructions were;

(b) seeking full instructions as to the accident, the damage to his vehicle and his losses suffered;

(c) giving Mr Helmy any advice as to the possible recovery and risks involved in issuing proceedings;

(d) giving Mr Helmy any advice as to his possible liability for costs to other parties; or

(e) giving Mr Helmy any advice as to the obligations under the Civil Procedure Act 2010.

1. The particulars relied upon are those set out in paragraphs 1-4, 76-102 and 104-111 of the Statement of Agreed Facts.

1. You are guilty of professional misconduct within the meaning of s 4.4.6(b) of the LP Act by your wilful failure to comply with the Undertaking given to the Commissioner on or about 21 December 2012.

1. The particulars relied upon are those set out in paragraphs 1-6, 76-103 and 104-111 of the Statement of Agreed Facts.

1. The parties jointly filed a summary of agreed facts as follows. Documents referred to as annexures are annexures to the application for orders.
   1. The Respondent was:

(a) at all material times, an Australian legal practitioner within the meaning of s 1.2.3(a) of the LP Act, having first been admitted to practice on 16 December 2002**.**

(b) at all material times until 1 January 2015, a legal practitioner director of Express Legal Services (Aust) Pty Ltd carrying on practice at 13 Hampshire Road, Glen Waverley, Victoria 3150 (the Firm);

(c) at all material times the sole Australian legal practitioner associate of the law practice (as that term is defined in s 1.2.4(1)(a) of the LP Act);

(d) the only person at the law practice authorised to receive trust monies.

1. At all material times pursuant to s 2.7.10 of the LP Act the Respondent was responsible for the management of the legal services provided by the Firm and under an obligation to ensure that appropriate management systems are implemented and maintained to enable the provision of legal services by the Firm in accordance with the professional obligations of Australian legal practitioners and other obligations.
2. At all material times, the law practice was engaged in legal work involving the recovery of damages in respect to motor vehicle collisions (recovery work).

1. The recovery work was undertaken on the basis that:

(a) the law practice's client provides the damaged vehicle to the repairer;

(b) the client signs an authority at the repairer which purportedly authorises the law practice to act on behalf of the client and to collect settlement funds and disburse the same; and

(c) the authority also purportedly authorises the Respondent to pay funds to the repairer.

1. On 21 December 2012, the Respondent gave an undertaking to the Commissioner regarding acting for clients in respect to motor vehicle incidents (the Undertaking). The undertaking relevantly provided that the Respondent, when acting for clients in respect to motor vehicle incidents, would:

(b) communicate directly with clients to confirm details of the accident and whether or not a claim ought to be made on a client's insurance policy;

(c) communicate directly with clients in respect to making or accepting offers of settlements and obtain the client's consent to any settlement;

(d) communicate directly with clients to confirm consent to payment of professional fees;

(e) make all of his employees aware of the substance of the undertakings;

(f) ensure the details of instructions given by clients to be confirmed in writing or a file note kept.

1. The Undertaking was to remain in force for as long as the Respondent was a legal practitioner/director of a number of legal firms, including the Firm.

1. On 23 August 2013, the Commissioner received a disciplinary complaint in respect to the Respondent from Hall & Wilcox on behalf of Ms Larisa Menhennet (the Menhennet complaint) (Annexure 1).
2. The Menhennet complaint relevantly alleged that the Firm had acted for her and issued proceedings in her name in relation to a motor vehicle accident without her instructions or knowledge.

1. On 12 June 2012, Ms Menhennet had a motor vehicle accident (the Menhennet accident) with another vehicle driven by a Ms Jaeger.
2. At the time of the collision both Ms Menhennet and Ms Eva Jaeger held comprehensive motor vehicle insurance with RACV Insurance (RACV).
3. On or about 12 June 2012, Ms Menhennet lodged a claim with RACV in respect to the Menhennet accident. Her contract of insurance allowed her to choose a repairer.
4. On the recommendation of RACV Ms Menhennet chose Montague Body Repairs (Montague) as the RACV advised that Montague offered a courtesy vehicle.
5. Ms Menhennet contacted Montague on 13 June 2012, told them that she was insured with RACV and she required a replacement vehicle. She was told one would be provided.
6. On or about 14 June 2012, Ms Menhennet took her vehicle to Montague and was asked to sign two forms, each of which was completed by Montague, which she now knows to be:

(a) an Express Legal Engagement Form (the Menhennet authority) (Annexure 2); and

(b) a hire car rental form from Onyx Car Rentals, a registered trading name of Anrace Pty Ltd (Onyx) (the Menhennet hire car agreement) (Annexure 3).

1. No legal advice or other explanation was given to Ms Menhennet prior to her signing the Menhennet authority or the Menhennet hire car agreement (together the Menhennet agreements).
2. No copies of the Menhennet agreements were provided to Ms Menhennet.
3. The Menhennet agreements did not provide the Firm with any proper instructions or basis to act for Ms Menhennet.
4. Throughout the time the Firm purported to act for Ms Menhennet, the Firm corresponded with and took instructions from Montague or Onyx.
5. The Respondent did not cause the Firm, before commencing to act, or at any time, to:

(b) seek full and proper details as to the Menhennet accident;

(c) seek or obtain Ms Menhennet's consent to the Firm acting;

(d) give Ms Menhennet any advice as to the risks and possible costs involved in issuing proceedings;

(e) give Ms Menhennet advice in respect to her rights under her insurance policy with the RACV;

(f) seek instructions in respect to any settlement offer; or

(g) give Ms Menhennet any advice as to the obligations under the Civil Procedure Act 2010.

1. On or about 18 June 2012, Ms Menhennet received a letter from the Firm dated 14 June 2012 stating that they were acting on her behalf to recover from Ms Jaeger damages from the Menhennet accident (Annexure 4).
2. On 19 June 2012, the Firm sent a letter of demand to RACV for the cost of repairs, assessment report and hire car (which cost were said to follow). The letter stated "We act for [Ms Menhennet] ..." (Annexure 5).
3. On 19 June 2012, RACV wrote to the Firm admitting liability and making arrangements for inspection of the damaged vehicle (Annexure 6).
4. On or about 22 June 2012, Ms Menhennet sent a text message to Montague instructing it to pause work on the car (Annexure 7). She later contacted a director of Montague and told him she wanted the claim to go through RACV and not through the Firm.
5. Also on 22 June 2012, Montague sent Ms Menhennet an email advising that "If you decide to cancel the claim with [the Firm], there will not be any charge on your behalf. We cover all cost. Also with regarding (sic) the hire vehicle costing, we will be charging the RACV direct after the work is work (sic) completed. I James Philios [a director of Montague] will personally guarantee that you not be charged for anything" (Annexure 8).
6. On 22 June 2012, the Firm sent Ms Menhennet an email which attached the Menhennet authority (Annexure 9).
7. On 25 June 2012, Ms Menhennet telephoned the Firm. She told the Firm that she revoked all authority for the Firm to act on her behalf. The Firm told Ms Menhennet that there would be no cost to her for the work completed.
8. Also on 25 June 2012, Ms Menhennet sent the Firm an email setting out the facts and revoking the Firm's authority to act on her behalf regarding the accident (Annexure 10).
9. On 25 June 2012, the Firm:

(a) sent Ms Menhennet a letter acknowledging that they were no longer acting for her (Annexure 11);

(b) sent RACV a fax acknowledging that the Firm was no longer acting for Ms Menhennet (Annexure 12).

1. Also on 25 June 2012, Ms Menhennet sent an email to RACV advising that the claim through the Firm had been withdrawn (Annexure 13).
2. On about 3 July 2012, Ms Menhennet collected her vehicle from Montague, it having been repaired. The RACV paid Montague for the costs of repair.
3. On 4 July 2012, the Firm sent a letter to RACV, further to previous correspondence, and advised of the hire car costs sought. (Annexure 14).
4. On 25 July 2012, RACV wrote to the Firm and advised that they had spoken to Ms Menhennet "who has confirmed that your firm do not have authority to act on her behalf, this was also confirmed in writing by your firm on 25 June 2012" (Annexure 15).
5. On 16 August 2012, the Firm sent an email to Montague asking them to call. The email states:

Chris asked me to give you a call on this one rather than go directly to [Ms Menhennet]

Originally when we had the claim for [Ms Menhennet] for repairs, she cancelled the claim so we had to do a No Longer Acting letter to RACV. [Ms Menhennet] also contacted RACV stating that we were not authorized to act on her behalf.

Now we are acting to recover the hire car costs and I have sent through the hire car invoice but they will not respond to a letter of demand due to the fact that [Ms Menhennet] has told them we are not authorized to act on her behalf. Are you able to contact [Ms Menhennet] and try to sort this out otherwise it leaves us no alternative other than to send the hire car invoice directly to her. (Annexure 16)

1. On 16 August 2012 the Firm emailed the RACV asking that the claim be reviewed (Annexure 17).
2. On 5 September 2012, the Firm sent an email to RACV stating, "... we have been advised by [Ms Menhennet] that she does still want us to act on her behalf to recover the cost of the hire car only". (Annexure 18)
3. On 27 September 2012, the Firm wrote to RACV and referred to earlier correspondence of 16 August and 5 September 2012 advising that proceedings would be instigated if the hire car costs were not paid by 1 October 2012 (Annexure 19).
4. On 3 October 2012, RACV made an offer to the Firm to settle for $555.20 (Annexure 20).
5. On 3 October 2012 the Firm wrote to the RACV stating "We have instructions NOT to accept your offer ..." A counter offer of $1,200 was made (Annexure 21).
6. The Firm repeated the position in the letter of 3 October 2012 in letters dated 5 October and 15 October 2012, but did not state that it held instructions (Annexures 22 & 23).
7. On 29 October 2012 the Firm again wrote to the RACV stating "We have instructions not to accept your offer ..." (Annexure 24).
8. On 28 November 2012, the Firm issued a complaint in Ms Menhennet's name in the Magistrates' Court at Melbourne for $1,747.73 in respect to the accident for costs of a hire car (the Menhennet proceedings) (Annexure 25).
9. Despite s.41 of the Civil Procedure Act 2010, which requires an overarching obligation certificate to be signed and filed with proceedings, except in certain circumstances, which are not relevant in the present case, no overarching obligations certificate was filed with the Menhennet proceedings.
10. Ms Menhennet had not been contacted further by the Firm after 25 June 2012 and had not given the Firm any authority to issue the Menhennet proceedings.
11. On 29 November 2012, the Firm wrote to the RACV and stated "Our client has instructed us to commence legal proceedings" (Annexure 26).
12. On 6 December 2012, the Firm wrote to RACV and advised "our client has instructed us to commence legal proceedings, to mitigate losses they have incurred, as the result of the negligent driving of your insured". The letter enclosed proof of service of the complaint upon the defendant Jaeger (Annexure 27).
13. On 20 December 2012, Ms Menhennet received a telephone call from RACV to inform her that the Firm had issued legal proceedings in her name against Ms Jaeger in the amount of $1,747.73 in respect of hire car costs.
14. On or about 21 December 2012, the defendant in the proceedings filed a defence and overarching obligation certificate which led to the matter being set for an arbitration in the Melbourne Magistrates' Court on 21 February 2013.
15. On 24 December 2012, the Firm wrote to Russell Kennedy, who were acting for Ms Jeager on the instructions of RACV, and advised "we hold instructions to finalise the plaintiff's claim at $1,200" (Annexure 28).
16. In or about January 2013, Ms Menhennet instructed Hall & Wilcox to act for her in respect to the Menhennet proceedings and the Firm purporting to act for her.
17. On 24 January 2013, Hall & Wilcox wrote to the Firm putting the firm on notice of Ms Menhennet's denial of authority and providing an opportunity to respond as to the basis they acted for Ms Menhennet (Annexure 29). No response was received by Hall & Wilcox from the Firm.
18. On 30 January 2013 Hall & Wilcox wrote again to the Firm seeking a response (Annexure 30), and again no response was received.
19. On 1 February 2013, Hall and Wilcox sent a further letter directly to the Respondent (Annexure 31). No response was received from the Respondent or the Firm, prior to 20 February 2013.
20. On 7 February 2013, the Firm contacted Russell Kennedy and indicated that they wished to resolve the matter and wanted an indication of what Russell Kennedy's costs claimed of the proceeding would be.
21. On or about 7 February 2013, the Firm purported to make an oral settlement offer to Russell Kennedy (the 7 February 2013 offer) **(**the filenote of the conversation is Annexure 32).
22. The 7 February 2013 offer was:

(a) made without any instructions from Ms Menhennet; and

(b) after the letters of 24 January, 30 January and 1 February 2013 in which Hall & Wilcox advised the Firm they did not have Ms Menhennet's authority to act.

(a) filed a notice of change of solicitor in the Menhennet proceedings on instruction from Ms Menhennet; and

(b) wrote to the Firm advising them of the change and foreshadowing an application for costs against the Firm or the Respondent (Annexure 33).

1. On 20 February 2013, the Firm wrote to Hall & Wilcox alleging "we confirm our client instructed us to act on essentially a subrogated basis, after signing an authority on behalf of Onyx Car Rentals to recover hire car costs" (Annexure 34).
2. On 20 February 2013, the Firm wrote to Russell Kennedy and denied they had no authority to bring proceedings advising that "our client instructed us to act on essentially a subrogated basis, after signing an authority on behalf of Oynx Car Rentals to recover hire car costs" (Annexure 35).
3. On or about 6 March 2013, consent orders were made in the Menhennet proceeding by which the Firm was to pay the costs of the plaintiff of $6,804.71 (i.e. Ms Menhennet) by installments and the costs of the defendant at $3,190.43 again by installments. The proceeding was struck out.
4. The Firm did not communicate with Ms Menhennet at all after the letter of 25 June 2012.
5. Each of the letters from the Firm set out above dated 19 June, 4 July, 16 August, 27 September, 3 October, 5 October, 15 October, 29 October, 29 November, 6 December and 24 December 2012 (together the Letters) was sent, and the 7 February 2013 offer was made, without any instructions from Ms Menhennet to do so.
6. Each of the letters from the Firm set out above and dated 3 October, 5 October, 15 October, 29 October and 24 December 2012 (the Offer Letters), and the 7 February 2013 offer made or rejected offers of settlement, without instructions from Ms Menhennet.
7. Each of the letters from the Firm set out above and dated 19 June, 3 October, 29 October, 29 November, 6 December and 24 December 2012 (the Dishonest Letters), which stated that the Firm acted for Ms Menhennet or had instructions from her, was untrue as the Firm had no instructions from Ms Menhennet.
8. In breach of the undertaking, at no time after 21 December 2012 had the Respondent or the Firm:

(a) contacted Ms Menhennet to seek instructions to continue the Menhennet proceeding;

(b) communicated with Ms Menhennet in respect to sending the Offer Letters.

1. The Menhennet complaint was published to the Respondent on 18 September 2013 (Annexure 36). No response was received and a follow up letter was sent on 14 October 2013 (Annexure 37) and an email on 15 October 2013.
2. On 30 October 2013, the Commissioner called Mr Gary Keisoglu at the law practice. Mr Keisoglu advised:

(a) that the law practice had two files, one for the repairer and one for the hire car;

(b) Ms Menhennet cancelled the repair matter but the hire car matter continued;

(c) that the law practice had issued not on instructions from the client and Mr Keisoglu took the blame for that.

1. As there was no response from the Respondent the Commissioner sent a final letter to the Respondent on 7 November 2013 (Annexure 38) and an email on 8 November 2013.
2. On 25 November 2013 the Respondent was referred to VCAT for breach of s.4.4.11 of the Act.
3. On 28 November 2013, the Commissioner received a response to the complaint from the Respondent relevantly stating:

(a) proceedings were issued by the Firm without instructions from Ms Menhennet as "we are advised the repair file was closed off our system in the first instance from those emails referred to by the complainant";

(b) there was an oversight in the Firm's internal procedures and several months later the separate hire car file came to the staff member to draw the complaint and there was nothing on the second file to indicate that the instructions had been withdrawn;

(c) the firm immediately accepted full responsibility and costs of the proceedings were paid by the car rental firm;

(d) the letter expressed the view that, as the law practice had paid the costs of the proceeding and reviewed its internal procedures, that a caution be administered.

1. On 8 April 2014 the Tribunal dealt with the Respondent and made an order that the relevant file be supplied by no later than 14 April 2014.
2. On 14 April 2014, the Respondent wrote to the Commissioner again and relevantly:

(a) provided a copy of the file in respect to the matter;

(b) advised "we never obtained any final instructions from [Ms Menhennet] as she refused to discuss anything with us or her hire car company Onyx Car Rentals under legal advice she received from Hall & Wilcox ...";

(c) advised "it appears that we have acted and commenced legal proceedings without instructions as alleged by Hall & Wilcox. We would be open to agreeing to a substantial fine noting that the plenary disposition is the statutory sum of $10,000 that can be imposed by the Commissioner ...".

1. On 28 July 2014 a Murray letter was sent to the Respondent (Annexure 41).
2. On 19 August 2014, the Respondent responded to the Murray letter (Annexure 42).
3. The investigation and consideration of the complaint continued.
4. On 17 July 2015 the Commissioner wrote to the Respondent and provided him with its Notice of Decision in relation to the Menhennet complaint (Annexure 43).

1. On 11 November 2013, the Commissioner received a disciplinary complaint in respect to the Respondent from Mr. Savvas Savva on behalf of Mr Hanna Helmy (the Helmy complaint) (Annexure 44).
2. The Helmy complaint alleged that the Firm had issued proceedings on Mr Helmy's behalf without his authority to do so.

1. At all material times in respect to the Helmy complaint, the Respondent was obliged to act in accordance with the Undertaking.
2. On 3 January 2013, Mr Helmy was involved in a motor vehicle accident with a Mr Axiomakarou (the Helmy accident).
3. Mr Helmy was insured with RACV. He made a claim. His vehicle was repaired at Ultra Finish Accident Repair Centre (Ultra). The costs of that repair were paid by RACV.
4. At the time that Mr Helmy visited Ultra he asked about a loan car being available to him. He was told by Ultra that as he was not at fault he would get a hire car for free, the other driver would pay and that they would take care of everything. He was subsequently referred to Onyx Car Rentals.
5. Mr Helmy signed a number of documents as follows:

(a) a form headed Details of Accident dated 4 January 2013 (the Helmy authority) (Annexure 45); and

(b) a form headed Rental Agreement/Tax Invoice. This document contains Mr Helmy's details and details of the car. It is undated. There is no amount shown for the daily rate or excess reduction. It refers to terms and conditions on the reverse, which provide in clause 11 that Mr Helmy must pay on demand "all charges (if any) specified in the Rental Document and all charges payable under the Rental Agreement, less any deposits already paid" (the Rental Agreement) (Annexure 46).

1. No legal advice or other explanation (other than as set out above) was provided to Mr Helmy prior to the execution of the Helmy authority and the Rental Agreement (together the Helmy Agreements).
2. The Helmy Agreements did not provide proper authority for the Firm to act for Mr Helmy.
3. Throughout the time the Firm purported to act for Mr Helmy it took instructions from Ultra or Onyx.
4. The Respondent did not cause the Firm, before commencing to act, or at any time, to:

(b) seek full and proper details as to the Helmy accident;

(c) seek or obtain Mr Helmy's consent to the Firm acting;

(d) give Mr Helmy any advice as to the risks and possible costs involved in issuing proceedings;

(e) give Mr Helmy advice in respect to his rights under his insurance policy with the RACV;

(f) seek instructions in respect to any settlement offer; or

(g) give Mr Helmy any advice as to the obligations under the Civil Procedure Act 2010.

1. Onyx provided Mr Helmy with a car to use until the repairs were complete.
2. The repairs were completed, the replacement car returned to Onyx and Mr Helmy uplifted his vehicle.
3. On 19 February 2013, the Firm wrote to Mr. Axiomakarou, purportedly on behalf of Mr Helmy, and demanded the sum of $3,517.47 for hire car charges (Annexure 47).
4. On 3 May 2013, the Firm wrote to Mr. T J Felice (the owner of the vehicle driven by Mr Axiomakarou) by way of letter of demand for $3,517.47**(Annexure 48)**.
5. On 16 May 2013, the Firm wrote again to Mr T J Felice and demanded payment of what was described as a final tax invoice, although no figure was given (Annexure 49).
6. At no time prior to sending the letters of 19 February, 3 May or 16 May 2013 had there been any communication between the Firm and Mr Helmy.
7. On or about 14 June 2013 Mr Helmy received a letter from the Firm. The letter relevantly:

(a) purports to confirm the instructions of the law practice to act on his behalf to recover hire car charges;

(b) enclosed an overarching obligation certificate pursuant to the Civil Procedure Act 2010 and asked Mr Helmy to sign it;

(c) confirmed that the matter had been referred to the law practice by Onyx and that the law practice had up until that time dealt with Onyx;

(d) provided that legal costs would be sought from Mr Axiomakarou or his insurer and that there would be no charge to Mr Helmy unless there was a lack of co-operation with the law practice or "you withdraw your instructions except, where there has been a denial of liability by the offending party with their insurer";

(e) the letter included "please remain in contact with the office throughout the entire process. If we are unable to contact you for instructions or you do not respond to our emails and letters, your matter will be adjourned until you provide us with instructions. If you do not provide us with instructions, we may settle your claim in your best interest. We will not proceed with your claim if it is likely the Court will make a finding against you or make you partially liable for causing the accident. We will on your behalf negotiate a walk away deal where each party bares its own costs";

(f) described itself as constituting "your independent legal advice".

(a) sign or return the overarching obligations certificate to the Firm; or

(b) provide instructions to the Firm to issue proceedings.

1. On or about 19 June 2013, the Firm issued proceedings in Mr Helmy's name in the Magistrates' Court of Victoria for $3,517.47 (the Helmy proceedings) (a copy of which is part of Annexure 53).
2. The amount claimed in the Helmy proceedings was for hire car expenses from 4 January 2013 to 18 February 2013 in the sum of $3,517.47.
3. Despite section 41 of the Civil Procedure Act 2010, which requires an overarching obligation certificate to be signed and filed with the proceedings, except in certain circumstances, which are not relevant in the present case, no overarching obligations certificate was filed with the Helmy proceedings.
4. On or about 24 June 2013, Mr Helmy referred the Firm's letter of 14 June 2013 to his insurer, RACV.
5. Russell Kennedy solicitors were instructed to act for Mr Helmy.
6. On 19 July 2013, Russell Kennedy wrote to the Firm on Mr Helmy's behalf and stated that the Firm was purporting to act for him and have issued proceedings without his instructions. The Firm was requested to immediately cease all activities and advise Russell Kennedy what steps had been taken to date (Annexure 51).
7. After 19 July 2013, despite the letter from Russell Kennedy dated 19 July 2013, the Firm by Mr Keisoglu, a non-legal director, sought to contact Mr Helmy directly including:

(c) leaving a copy of a business card and a further copy of the letter of 14 June 2013 at his home.

1. On 2 August 2013, the Firm wrote to Russell Kennedy and enclosed a copy of their file and a notice of ceasing to act, confirming that only the second defendant had been served at that point and no application for default judgment had been made (Annexure 52).
2. In breach of the Undertaking, at no time did the Respondent cause the Firm, or himself personally, to:

(a) confirm any instructions to act (for Mr Helmy) in writing;

(b) communicate directly with Mr Helmy to confirm details of the accident and whether or not a claim ought to be made on his insurance policy;

(c) communicate directly with Mr Helmy in respect to making or accepting offers of settlements and obtain Mr Helmy's consent to any settlement.

1. The complaint was published to the Respondent on 29 May 2014 alleging that the Respondent allowed the Firm to:

(a) act improperly by acting without instructions from Mr Helmy to negotiate a settlement on his behalf and issue proceedings in the Magistrates' Court;

(c) acting improperly by not providing legal advice to Mr Helmy prior to the signing of the instructions to act form;

(d) acting improperly by issuing proceedings without having an overarching obligation certificate;

(e) make a threat to unilaterally settle claims without instructions,

1. On 27 June 2014 the Respondent replied to the complaint (Annexure 54).
2. The Commissioner wrote further to the Respondent on 1 August 2014 (Annexure 55).
3. On 13 August 2014, the Commissioner was advised by telephone by Mr David McKenzie that he was now the legal practitioner director of the Firm and he acknowledged in that telephone conversation that the law practice's instructions were taken from Onyx.
4. On 15 September 2014, Mr McKenzie purported to write in response to the complaint advising that the Respondent was no longer associated with Express Legal (Annexure 56).
5. The investigation and consideration of the complaint continued.
6. On 23 June 2015 a Murray letter was sent to the Respondent (Annexure 57). No response to this letter was received.
7. On 3 December 2015 the Commissioner wrote to the Respondent and provided him with its Notice of Decision in relation to the Helmy complaint (Annexure 58).

1. Charges 1, 2, 6 and 7 are all charges of professional misconduct at common law contrary to s 4.4.3 of the LP Act, which 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.

1. Charge 3 is a charge of professional misconduct contrary to s 2.7.11 and/or s 4.4.4(a) of the LP Act which provide as follows:

2.7.11 Obligations of legal practitioner director relating to misconduct

(1) Each of the following is capable of constituting unsatisfactory professional conduct or professional misconduct by a legal practitioner director -

(a) unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the incorporated legal practice;

(2) A legal practitioner director of an incorporated legal practice must ensure that all reasonable action available to the legal practitioner director is taken to deal with any unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the practice.

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. Charges 5 and 8 are both charges of professional misconduct contrary to s 4.4.6(b) of the LP Act by his wilful failure to comply with the Undertaking given to the Commissioner on 21 December 2012. Section 4.4.6(b) provides as follows:

4.4.6 Conduct that constitutes professional misconduct

Without limiting section 4.4.3 or 4.4.4, the following conduct by an Australian legal practitioner constitutes professional misconduct -

(b) wilful or reckless failure to comply with an undertaking given to a court, tribunal, the Commissioner or the Board.

1. After hearing an application, if the Tribunal is satisfied that the practitioner is guilty of professional misconduct, it may make any orders it thinks fit including, for the purpose of this application, those specified in s 4.4.17 and s 4.4.19 of the LP Act, which provide as follows:.

4.4.17 Orders requiring official implementation in this jurisdiction

The Tribunal may make the following orders under this section -

(a) an order recommending to the Supreme Court that the name of the practitioner be removed from the local roll;

(b) an order that the practitioner's local practising certificate be suspended for a specified period or cancelled;

(c) an order that a local practising certificate not be granted to the practitioner before the end of a specified period;

(d) an order amending the conditions of the practitioner's local practising certificate or imposing further conditions, restrictions or limitations on the certificate.

4.4.19 Orders requiring compliance by practitioner

The Tribunal may make the following orders under this section -

(a) an order referred to in section 4.3.17(1)(a), (b), (c) or (e);

(b) an order that the practitioner pay a fine of a specified amount, not exceeding $10 000 in the case of a finding of unsatisfactory professional conduct and $50 000 in the case of a finding of professional misconduct;

(c) an order that the practitioner undertake and complete a specified course of further legal education;

(d) an order that the practitioner undertake a specified period of practice under specified supervision;

(e) an order that the practitioner do or refrain from doing something in connection with the practice of law;

(f) an order that the practitioner cease to accept instructions as a public notary in relation to notarial services;

(g) an order that the practitioner's practice be conducted for a specified period in a specified way or subject to specified conditions;

(h) an order that the practitioner's practice be subject to periodic inspection by a specified person for a specified period;

(i) an order that the practitioner seek advice in relation to the management of the practitioner's practice from a specified person;

(j) an order that the practitioner not apply for a local practising certificate before the end of a specified period;

(l) an order that the practitioner report on the legal practice of the practitioner to a specified person at specified intervals;

(m) an order that the practitioner not employ, engage or recommend a specified person or class of persons;

1. Neither party called any witnesses. The Respondent, who appeared in person, elected not to give any evidence on his own behalf.
2. I draw upon the written submissions of Counsel for the Commissioner, which were made with the concurrence of the Respondent.
3. The parties submitted the following proposed penalty, by agreement:
   • (a) Pursuant to s 4.4.17(b) of the LP Act, the Respondent's local practicing Certificate be cancelled effective from 1 May 2017.
   • (b) Pursuant to s 4.4.17(c) and s 4.4.19(j) of the LP Act, no new practicing certificate shall be applied for or granted to the Respondent for two (2) years from 1 May 2017; and
   • (c) Pursuant to clause 46D of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 and s. 4.4.19(n) of the LP Act, the Respondent pay the Commissioner's costs to be assessed on the standard basis on the County Court Scale by the Costs Court in default of agreement.
4. The proposed penalty is submitted as a global sanction recognising the continuing course of conduct whereby the Respondent improperly conducted his practice in the same broad way.

1. The Commissioner characterized the actions of the Respondent as very serious by reason of the following:
   • (a) The issuing of proceedings in the circumstances admitted by the Respondent has been recognized as professional misconduct at common law in a series of cases outlined below. The Commissioner submitted [and I readily accept] that to abuse the privilege that solicitors have to issue court proceedings on behalf of two persons, who had not authorized them, is corrosive to the interests of the public, the Courts and the profession;
   • (b) In addition to issuing proceedings without authority (as was the case in the previous authorities), specific matters took place that clearly demonstrated the Firm's lack of authority:
     • (i) In the Menhennet complaint, when Ms Menhennet discovered that the Firm was purporting to act for her, she specifically instructed it not to do so. This was acknowledged by the Firm. However, despite this, proceedings were later issued in her name; and
     • (ii) In the Helmy complaint, a letter was sent to Mr. Helmy seeking his instructions and the execution of an overarching obligations certificate pursuant to the Civil Procedure Act 2010. Despite the fact that Mr. Helmy did not provide the Firm with instructions nor provide the overarching obligations certificate, proceedings were issued;
   • (c) The Firm sent dishonest letters in the Menhennet matter, stating that the Firm had instructions from Ms Menhennet, which was not true;[2] and
   • (d) The admitted wilful breaches of the Undertaking.

1. The conduct in charges 1, 2, 6 and 7 is admitted to be professional misconduct at common law, i.e. conduct that right thinking members of the profession would think disgraceful or dishonourable.
2. Charges 1 and 6 are characterised by causing or allowing the Firm to purport to act for the complainants and to issue and continue the proceedings on behalf of the complainants without any instructions or authority to do so, in circumstances where the Respondent knew or ought to have known that there was never any authority to do so.
3. Charges 2 and 7 are characterised by causing or allowing the Firm to purport to act for the complainants without:
   • (a) clarifying what, if any, their instructions were;
   • (b) seeking full instructions;
   • (c) giving advice as to the possible recovery and risks involved in issuing proceedings;
   • (d) (in Ms Menhennet's case) giving advice about her rights under her insurance policy;
   • (e) giving the complainants any advice as to possible liability for costs to other parties; or
   • (f) giving the complainants any advice as to their obligations under the Civil Procedure Act 2010.
4. The form of these charges is similar to those in Legal Ombudsman v Battley[3] (Battley) and Victorian Lawyers RPA v Hession[4] (Hession).
5. In Hession, the Legal Practice Tribunal (LPT) dealt with a similar situation as follows:
   • (a) both drivers in a collision were insured with the RACV;
   • (b) one party consulted a firm called Road Accident Recovery and Settlement and executed an authority by which the service instructed solicitors to act, which they did; and
   • (c) proceedings were issued without an authority, without proper instructions being taken and without advice being given in respect to, inter alia, costs.
6. The LPT found professional misconduct at common law having held that:[5]
   • (a) the 'authority to act' did not constitute an authority for the commencement of court proceedings;
   • (b) the 'authority' had ambiguous parts to it and 'in our view, for a written authority to commence court proceedings to be valid and effective, a plain statement of authority to commence proceedings should be set out in the authority and not left to a possible implication which might be drawn from the words used'; and
   • (c) prior to commencing the proceeding the legal practitioner had not: conferred with the client; clarified the instructions; or given them advice in respect to their rights, their insurance with the RACV or the implications of commencing proceedings.
7. In Battley, again a form prepared by Accident Costs Recovery Service, was executed, which authorised the service to arrange for assessments of damage etc and where necessary instruct solicitors on the client's behalf. The form was referred to Battley and proceedings were issued promptly. There was no communication with the client until after the issue of the proceedings. When an explanation was sought by the client, she was not told that the proceeding had been commenced in her name and she believed it was merely a procedure to find out who was responsible for the damage to her car.[6] The Tribunal found professional misconduct at common law having held that:[7] the proceedings had been issued without instructions from the complainant to do so; and relevant advice was not given in respect to costs or the insurance policy held.
8. There have been other cases before the Tribunal where solicitors have been found to have engaged in professional misconduct, when acting without proper authority including:
   • (a) Legal Services Commissioner v Brott (Brott);[8]
   • (b) Oldham v Law Institute of Victoria (Oldham);[9]
   • (c) LSC v Anderson (Anderson);[10] and
   • (d) VLSC v Logan (Legal Practice) (Logan).[11]
9. In respect to previous penalties, they were as follows:
   • (a) Battley was fined $25,000;
   • (b) Hession was fined $15,000;
   • (c) Oldham was reprimanded; restrictions were imposed on the areas in which he was allowed to practice; and he was ordered to pay costs;
   • (d) Brott was referred to the Supreme Court and was eventually struck off. However Brott's offending was widespread and other very serious matters were involved;
   • (e) Anderson was reprimanded; fined $20,000; required to undertake additional CPD; and ordered to pay costs;
   • (f) Logan, also the Respondent in this application, was suspended from practice for 10 Months.
10. In Anderson, Senior Member Smithers noted that the practitioner had no previous disciplinary matters; pleaded guilty as soon as possible;[12] and co-operated fully in the terms of the investigation. Anderson accepted the errors he had made. In addition the circumstances of Anderson's misconduct are distinguishable from Battley and also the current case:[13]

In contrast to Battley, Mr Anderson's conduct did not involve dishonesty, or trust account breaches in relation to the taking of fees. Nor was a failure to provide cost disclosure part of the case put against him. Also, Mr Anderson's relationship is with a taxi club... Mr Anderson was purporting to act for a defendant to proceedings already issued, rather than for a plaintiff as part of a scheme which blatantly undermined the interests of motorists. Had that been the case, a more severe penalty would have been imposed.

1. The wrongdoing involved in this charge is the result of the Firm sending letters without authority and which purported to be pursuant to instructions. The Respondent, as the ILP director, and the only lawyer associated with the Firm, at the relevant time, is responsible for the Firm's conduct.
2. As noted below, this charge is in materially identical form to one of those dealt with in July 2016 by Butcher SM, in respect of the Respondent and which contributed to the global penalty of a 10 month suspension from practice.

Charges 5 and 8 Wilful failure to Comply with the Undertaking

1. The seriousness of a practitioner's failure to comply with an undertaking is self-evident. The Undertaking was given to the Commissioner to resolve three earlier complaints of similar wrongdoing. The Undertaking applied in respect to the:
   • (a) Menhennet complaint from 21 December 2012 to 20 February 2013 (the relevant 'acting' for Ms Menhennet commenced in June 2012); and
   • (b) Helmy complaint for the entire time that the Firm 'acted' for Mr. Helmy, from January 2013 (less than a month after the Undertaking was given) to August 2013.
2. The similarity of the previous conduct and the gross nature of the breaches of the Undertaking are apparent from a comparison of the terms of the Undertaking with the nature of the conduct admitted in this proceeding. Indeed, the conduct involved in this proceeding was precisely the kind of conduct which the Undertaking sought to prevent. The purpose of the Undertaking was the protection of the public from the wrongs involved in this proceeding.

Fidelity to undertakings given by a lawyer in the course of professional practice is an important component of her or his professional responsibility and is directly relevant to the court's continuing accreditation of the lawyer's fitness to practice.[14]

1. In LSC v Burgess,[15] the practitioner was found guilty of five charges of professional misconduct including a reckless breach of an undertaking to the LSC (to perform additional CPD points to deal with a complaint). The Tribunal imposed a global sanction, suspending the practitioner's practising certificate for 9 months and thereafter imposing a restriction to an employee practising certificate for 12 months. On appeal, the Court of Appeal found that insufficient account had been given to the practitioner's compromised psychological condition. Accordingly, in lieu of the original sanction, the practising certificate was suspended for a period of 21 months on condition that the practitioner be permitted to practise under an employee practising certificate as an employee solicitor for the duration of that period.
2. In the event that undertakings to the regulator and/or the Court in a disciplinary context are not scrupulously performed then the system of discipline in the profession may be undermined.

1. The Respondent's disciplinary history is detailed in a tendered table together with relevant correspondence in respect to the findings by the Commissioner and earlier Tribunal decisions.
2. The Respondent has been the subject of seven reprimands from the Commissioner.
3. More concerning are the matters numbered 2, 3, 4, 5 and 7 in the table, which arise out of acting in motor vehicle recovery actions in situations similar to those now before the Tribunal.
4. In addition there are four previous findings of professional misconduct:
   • (a) LSC v Logan 8 April 2014: A breach of s 4.4.11 of the LP Act, by failing to comply with the Commissioner's requirements for written explanations, which resulted in a reprimand, fine of $1,000 and an order to pay costs;[16]
   • (b) LSC v Logan 16 June 2014: A conviction for professional misconduct at common law, in sending a letter containing a threat which would reasonably be regarded as disgraceful or dishonourable, which resulted in a reprimand, additional CPD and an order to pay costs; and
   • (c) VLSC v Logan:[17] This matter involved similar conduct in purporting to act for one complainant without her instructions but rather on the instructions of a smash repairer. There was also a conviction for professional misconduct for allowing dishonest letters to be sent, substantially identical to the current charge 3. The differences with the current matter are:
     • (i) The last matter involved conduct prior to the Undertaking being given;
     • (ii) The Tribunal accepted an undertaking in substantially the same terms as the Undertaking; suspended the Respondent from practice for 10 Months; and ordered him to pay costs.
     • (iii) The current matter involves 2 complainants rather than one; and
     • (iv) In the current matter the Respondent has entered pleas of guilty, rather than contest the charges in a full defended hearing.
   • (d) VLSC v Logan:[18] This matter also involved the Respondent acting in respect to motor vehicle damage recovery claims, but concerned the Respondent's conduct in failing to pass on monies to a financier. There was a plea to two charges of professional misconduct and one of unsatisfactory professional conduct. The Respondent was reprimanded; fined $5,000; and ordered to pay costs.

1. The Commissioner cited two mitigating factors in the Respondent's favour:
   • (a) He has now agreed to plead guilty to all charges; and
   • (b) Having previously been a principal in four legal practices, he has now withdrawn from all but one.
2. In my view, although a guilty plea is obviously some indication of acceptance of responsibility, the pleas have come very late. At an initial Directions Hearing, Counsel for the Respondent indicated to the effect that all charges were in dispute and the proceeding was listed for a 5 day contested trial. Nevertheless, the Respondent is entitled to have his pleas taken into account in his favour, having regard also to the lateness of his plea and the strength of the evidence against him.
3. In regard to the Respondent's current practice, although this circumstance may arguably limit the Respondent's exposure and therefore risk to the public, I do not consider this to be a relevant mitigating factor.
4. In addition, the Respondent tendered two personal references:
   • (a) Letter from Dr Michael Evenhuis dated 29 January 2017; and
   • (b) Letter from Amanda Burnell Senior Law Clerk AB Legal dated 11 January 2017.
5. Dr Evenhuis has been a personal friend of the Respondent since they were at University together. Ms Burnell has known the Respondent since they both worked in the same law firms from late 2006 until December 2013. Both referees give personally supportive references. However, I give little weight to these references, in light of the admissions made by the Respondent; the very comprehensive evidence in support of the charges; and his history of misconduct.

1. Counsel for the Commissioner indicated that the Respondent is currently being investigated in respect of two further complaints.

1. I acknowledge the comprehensive admissions made by the Respondent comprised in the Joint Statement of Agreed Facts. It is also readily apparent from the Annexures to the Joint Statement of Agreed facts that the objective documentary evidence in support of the Charges was very strong. On the basis of such evidence and the Respondent's admissions, I am comfortably satisfied that the Charges are proven and accordingly I find the Respondent guilty as charged.
2. The proven misconduct of the Respondent is extremely serious. The Respondent has behaved dishonestly in the conduct of his legal practice and in a manner which caused prolonged confusion, inconvenience and cost to the two affected members of the public. The misconduct in this case is seriously aggravated by the fact that he had been previously dealt with by the regulator for similar offending. In failing to act upon the opportunity extended to him in the form of the Undertaking and the leniency of the prior reprimands, the Respondent has demonstrated a flagrant disregard for the most basic obligations placed upon a solicitor towards his clients. He has also demonstrated a contempt for the regulator in wilfully breaching his Undertaking and doing so shortly after such Undertaking was given.
3. In view of the Respondent's offending history for similar misconduct and the circumstances of the current offending, specific deterrence must be a significant influence in any determination. In my view, there is no question that the Respondent has forfeited the right to a practising certificate and the privilege to engage in legal practice.
4. In addition, in view of the nature and circumstances of the Respondent's offending, general deterrence is also significant. In Anderson, the Tribunal acknowledged the importance of general deterrence in precisely this kind of misconduct:

In the circumstances of this case, specific deterrence is of some significance, but general deterrence is of greater significance. The conduct of some lawyers acting on referrals or instructions received from crash repairers and/or middlemen is a matter of concern to the community. When that conduct is found to be deficient, this reinforces a negative view of the profession, and undermines the reputation of the profession. The cases of Battley and Hession are examples of this.[19]

The conduct of practitioners in connection with carrying out civil litigation must now be considered in the context of the Civil Procedure Act. This requires certification in relation to understanding of the overarching obligations, and compliance with the proper basis obligation in relation to matter relied on in litigation.[20]

1. The fact that proceedings could be issued in the name of a person who has no knowledge of it at all is clearly a matter that undermines the reputation of the profession. Members of the public are entitled to such protection as the regulatory regime can provide and both practitioners and the public should expect that there will be a prompt and effective response to such misconduct.
2. Accordingly, an appropriate sanction must meet the needs of specific and general deterrence.
3. Orders of the Tribunal made 18 July 2016,[21] included Order 2 which provided that:

The respondent's local practising certificate is suspended with effect from 1 September 2016 until 30 June 2017.

1. The Respondent subsequently obtained a stay to the Tribunal's Orders upon filing an appeal to the Supreme Court. During the course of the current hearing the Respondent indicated an intention to withdraw such appeal. Accordingly, the Determination now made will effectively subsume Order 2 of 18 July 2016.
2. In my view, the proposed sanctions are appropriate save for one aspect which I raised during the hearing. Without in any way limiting other conditions or considerations which the licensing authority may consider appropriate, if and when the Respondent again seeks a practising certificate, in my view the Respondent must first demonstrate a capacity to conduct practise as an employee solicitor under the supervision of a principal of a law practice before again being eligible to apply for an unrestricted practising certificate. Accordingly, I propose to make orders to the following effect:
   • (a) cancel the Respondent's current local practising certificate, with effect from 1 May 2017, as suggested;
   • (b) prohibit the Respondent from applying for a new local practising certificate for a period of 2 years after cancellation, as suggested; and
   • (c) limit any new practising certificate to an employee practising certificate for a period of not less than 18 months from the date of grant.
3. As agreed between the parties, the Respondent will be ordered to pay the costs of the proceeding.

[1] The Firm is defined in the Statement of Agreed Facts as Express Legal Services (Aust) Pty Ltd carrying on practice at 13 Hampshire Road, Glen Waverley, Victoria 3150, of which the Respondent was a director at all material times.

[2] It is not alleged that the Respondent had actual knowledge of these particular letters, rather that he allowed the Firm to operate in this way where letters of this sort were sent that falsely claimed the law practice had instructions or authorization.

[3] [1999] VCAT 6.

[4] [2000] VLPT 12.

[5] Victorian Lawyers RPA v Hession [2000] VLPT 12, [6(d)]-[6(f)].

[6] [1999] VCAT 6 [3].

[8] [2011] VCAT 110.

[9] [2012] VCAT 571.

[10] [2015] VCAT 1157.

[11] [2016] VCAT 1193. This decision is subject to appeal although the Respondent indicated during the Hearing an intention to withdraw the appeal.

[12] Albeit there was a dispute in respect to whether one of the charges should be PM or UPC.

[14] Dal Pont, Lawyers Professional Responsibility, at 22.05.

[15] [2013] VCAT 350.

[16] This also related to the Menhennet complaint.

[17] [2016] VCAT 544 and [2016] VCAT 1193.

[18] [2016] VCAT 1963.

[19] [2015] VCAT 1157 [32] (Smithers SM).

[21] Senior Member Butcher, Victoria legal Services Commissioner v Mr Nicholas Logan.