Victorian Legal Services Commissioner v Low [2016] VCAT 1584 | Case summary

[2016] VCAT 1584Victorian Legal Services Commissioner v Low [2016] VCAT 1584 | Case summary | Zoe

[5]

The Respondent is a senior associate solicitor employed by a firm of solicitors who carry on business in Victoria (the firm). She was admitted to the legal profession in Victoria in July 1993. In recent years, she has worked exclusively as a family lawyer.
The Applicant has applied for determination of a disciplinary charge of unsatisfactory professional conduct against the Respondent under the Legal Profession Act 2004 (the application). The charge relates to a letter dated 21 April 2015 written by the Respondent on behalf of a client for whom the firm then acted and sent to a third party (the impugned letter).
The impugned letter related to family law matters between the client and the third party. The client had been the wife and the third party had been the husband in a marital relationship which had broken down. There are two children of this relationship.
At the time of receipt of the impugned letter, the husband was not legally represented. The Applicant received a complaint from the husband on 10 May 2015 about the impugned letter (the complaint). The application, which includes reasons for making it, was dated 21 December 2015 after the Applicant had concluded his investigations into the complaint.
According to the impugned letter, final orders of the Federal Circuit Court pursuant to the Family Law Act 1975 then remained in force about the children. The impugned letter, in which it was stated at the outset, was written on instructions from the wife, included references to these orders, to details about the children and to issues pertaining to the Family Law Act 1975 and to the Family Violence Protection Act 2008.
Given the subject matter of the impugned letter, Mr Warne, Counsel for the Respondent, at the commencement of the hearing, sought an order anonymising the title of the proceeding by the substitution of a pseudonym for the Respondent's name under s 17 of the Open Courts Act 2013. This application was opposed by Mr Snow, Counsel for the Applicant.
Mr Warne also sought an order that none of the husband, wife, children or the employer of the Respondent be identified by name.
Both applications had been filed and served by the Respondent shortly prior to the hearing. Mr Warne handed up additional supporting material on the morning of the hearing. The latter application, which was not made under the Open Courts Act, and was not opposed by Mr Snow, was granted by the Tribunal. It was therefore ordered that the father/complainant be referred to as "the husband", the mother be referred to as "the wife", the children be referred to contextually as "the child" or "the children" and the Respondent's employer be referred to as "the firm."
The Tribunal then heard argument from Counsel about the anonymisation application pertaining to the Respondent. Mr Warne informed the Tribunal that this application for anonymisation was made, not because the Respondent had concerns about her own identification, but rather because she was anxious to keep the affairs of the wife confidential.
He noted that the Tribunal had already made an order on 5 February 2016 restricting access to inspection of the Tribunal file in this proceeding pursuant to s 146 (4) (b) of the Victorian Civil and Administrative Tribunal Act 1998. He then referred in some detail to s 121 of the Family Law Act 1975.
Section 121(1) of the Family Law Act 1975 relevantly provides as follows:

[14]

Mr Warne conceded that not all disciplinary matters involving family law issues required anonymisation. He had also previously stated that at the time of the impugned letter, the only proceeding on foot was not a matrimonial one, but an intervention order application by the wife. However, he maintained that the extraneous issues in this proceeding involving children, matrimonial matters and family violence issues were of sensitivity sufficient to warrant the anonymisation order being made. In this regard, he was particularly concerned to avoid any increased potential for the children, in the absence of the Respondent's anonymisation, to become aware of the contents of the impugned letter in circumstances in which it appeared under the letterhead of the firm and the Respondent maintained that it had been written on the wife's instructions.
Mr Snow responded by asserting that these contentions on behalf of the Respondent were not sufficient to grant the order sought. He further submitted that the Respondent had been a legal practitioner for in excess of 20 years and, as a family lawyer, her file load would be such that it would be an unlikely eventuality that mention of her name in such circumstances could lead to a connection being made to this matter, particularly where the Tribunal had already granted the other anonymity orders which had been sought by the Respondent.
Mr Warne then additionally submitted, that no anonymisation order was being sought by her in relation to the publication of her name in the Register of Disciplinary Action in respect of Australian Legal Practitioners, in the event of a finding against her in this proceeding. Mr Snow, however, argued against this being a relevant consideration to be taken into account, as any enquiry or reference about disciplinary proceedings would generally be made through Austlii and not the Register. He further contended that having the Respondent's name remain only on the Register would have very little effect in informing the public or of being a deterrent.
The Tribunal then reserved its decision on this issue and proceeded to hear the substantive application. As is now apparent from its orders, the subject of these reasons, the Tribunal prefers the Applicant's arguments to those of the Respondent and refuses to order anonymisation of the Respondent. Further, it should be particularly noted that the Tribunal does not regard the extraneous considerations urged upon it by Mr Warne as being of such a nature, having regard to all the circumstances, which would warrant departure from the overriding principle of open justice.

[60]

Mr Snow opened by confirming that the charge is one of unsatisfactory professional conduct. It is not professional misconduct. He stated that as the Respondent has admitted writing the impugned letter, it was up to the Tribunal to determine whether writing it constituted unsatisfactory professional conduct.
He then tendered into evidence the nine annexures to the application. These were comprised of the impugned letter (Annexure 1), ex tempore and written orders and reasons in M v M (Annexure 2), the complaint (Annexure 3), and six of the seven letters referred to in the reasons for the application passing between the Applicant and the Respondent (Annexures 4-9 ). The seventh letter was noted in the reasons as having been sent on a "without prejudice" basis by the Respondent to the Applicant and dated 27 July 2015.
Also tendered by Mr Snow was a document filed by the Respondent entitled "Respondent's Amended Preliminary Partial Response To Application" (response to the application) and an Amended Witness Statement of the husband dated 3 March 2016 which included four annexures (the witness statement).
The response to the application is signed by the Respondent and dated 18 February 2016. The proceeding was the subject of a directions hearing on 5 February 2016. Attached to the response to the application are three letters from the firm dated 3, 4 and 4 February 2016 and two from the Applicant dated 3 and 5 February 2016.
It was noted by Mr Snow that, by agreement with Mr Warne, the witness statement incorporated redactions which had been made to a paragraph of an earlier witness statement of the husband and to a portion of an annexure to that earlier statement. On the basis of the witness statement being tendered, Counsel for the parties had agreed that, from an evidentiary perspective, it could be taken as read, and Mr Warne did not require the husband to attend for cross-examination purposes. Mr Snow therefore confirmed that the Applicant would not be calling any witnesses.
It is also imperative to record that Mr Snow, when tendering the witness statement, specifically referred to its first annexure, which was a letter from the husband to the Respondent dated 26 April 2015 written in response to the impugned letter. Amongst other matters, Mr Snow noted that this letter's contents included various allegations of the husband about the wife and the children in relation to substantive family law-related issues in dispute and their consequential effects on the parties. Mr Snow confirmed that such material was not being led as evidence of the truth of these allegations and neither was it part of either case in this proceeding about who was right or wrong in relation to the family law issues or the various allegations contained in this or other tendered letters.
The complaint (annexure 3 to the application) was made on the Applicant's Complaint Form. The husband attached to the complaint the impugned letter and highlighted the second and third paragraphs on page 3. He described these paragraphs as "abusive scandalous + outrageous statements completely out of order. I have not been charged with any family violence - statements are false". When asked what he hoped to achieve by making the complaint, the husband responded that he wanted the solicitor disciplined and to "improve their attitude towards the other side". He also stated in the complaint that he had asked for an apology (and) withdrawal of (the) paragraphs in (the) letter (but) solicitor refused.
Annexure 4 to the application is a letter from the Applicant to the Respondent dated 22 June 2015. This letter enclosed the complaint, detailed how it was to be investigated and sought a full written explanation from the Respondent of her conduct. It also referred to an earlier conversation between the Respondent and the author of this letter wherein it is asserted that the Respondent had explained that the wording of the impugned letter was taken from the Australian Family Law Guide and that the words contained in the two most criticised paragraphs were copied from M v M. This letter further observed that it appeared that the wording in the impugned letter is the same as the words of the trial Judge in that case. It also noted that the husband had raised concerns that the Respondent had accused him in the impugned letter of behaviour which the Respondent said constituted family violence without her appearing to make reference to the case law or to note the case in the context of the wife's specific issues and that it contains statements that are alleged in tone to be threatening, intimidating and abusive.
In seeking the Respondent's response in this letter (annexure 4 to the application), the Applicant also asked that she include responses in terms of addressing each of rule 30.1.2 of the Professional Conduct and Practice Rules 2005 (the PCPR), how the facts in M v M apply to the husband's individual situation given his assertion that he has not been charged with family violence, on what basis the Respondent made the comments about the husband's relationship with the children and whether the Respondent would consider providing a written apology to the husband to resolve the complaint.
Rule 30.1.2 of the PCPR relevantly provides:

[66]

The response of the Respondent to the Applicant's letter of 22 June 2015 is dated 1 July 2015 and is Annexure 5 to the application. In this letter, the Respondent advised the Applicant that the impugned letter was written on the basis of instructions provided by the wife and in the context of her having made an application for an Intervention Order alleging abuse by the husband. The Respondent then stated that in the case of M v M the Judge made comments in relation to the impact of domestic violence and denigration and that the words of the Judge were "simply quoted" in the impugned letter "on the basis of our instructions". Accordingly it was contended that since she was acting on instructions there "can be no apology to" the husband and she considered that she was compliant with rule 30.1.2.
By letter dated 22 July 2015, the Applicant wrote to the Respondent a lengthy letter which is Annexure 6 to the application. The letter indicated that the investigation into the complaint was then almost finalised but the Applicant's preliminary view from an assessment of the material provided to that date in the investigation was that there was a reasonable likelihood that VCAT could find that the Respondent's conduct in relation to the matter amounted to professional misconduct or unsatisfactory professional conduct. This letter sought a response from the Respondent. It focussed on the words in bold and highlighted form in the two most criticised paragraphs in reason 13 for the application. Relevantly, the Applicant's comments (in annexure 6 to the application) then included:
- these two paragraphs in the impugned letter included comments which are of themselves inflammatory and offensive and, regardless of whether the Respondent was quoting from a case, the comments were also inappropriate;
- with no reference to, or citation of, M v M, the Respondent has purported that the opinions about the nature of the danger to the children from the husband's abusive behaviour are her own;
- as a legal practitioner, the Respondent should be aware, especially when dealing with a self-represented litigant, of the importance of adequately referencing sources which the practitioner quotes or paraphrases;
- the impugned letter appears to make a number of allegations against the husband, including that he is perpetrating family violence and that his abusive behaviour is a disability that his children may come to share but these allegations have not yet been substantiated as no findings of family violence appear to have been made by the police or the courts in relation to the husband;
- the comments, the subject of the complaint, appear to be a disproportionate response to the specific allegations the Respondent makes against the husband that he is frustrating the orders that the wife spend time with the children and that he denigrates the wife in front of the children;
- while the Applicant appreciates that the specific allegations are serious issues which should rightly be raised with the husband on behalf of the wife, as the Respondent's client, he notes that the comments made by Mullane J were made in the context of both physical and emotional violence where the father in the case of M v M had a long history of physical violence and had been convicted of two assaults of the mother and one of the mother's son from a former relationship;
- the Applicant reiterated that the Court in M v M also held that the father was an 'aggressive, abusive and intimidating man who [was] unable to deal with people without resorting to abuse and is unable to accept responsibility for his behaviour';
- the Applicant noted about disproportionality that the Court is an independent body that made findings based on evidence that had been presented and impartially assessed;
- the facts in M v M do not appear to the Applicant to apply to the specific circumstances and, as such, it was inappropriate for the Respondent to adopt the comments by Mullane J and it was more serious in so doing by not referencing them;
- with reference to the Respondent's comments in her letter of 1 July 2015, that the letter was written on the basis of instructions provided by the wife as her client and that the Respondent further was "only acting on instructions in this matter...", the Applicant asserted that as a legal practitioner he would expect the Respondent to always exercise her own professional and forensic judgment when representing her client and not to be her client's "mere mouthpiece as per Rondel v Worsley (1967) 1QB 443 at 502";
- the Respondent may have breached Rule 21 of the PCPR by failing to ensure that her communications with the husband were courteous and by using offensive and provocative language in her dealings with him. Rule 21 states that a practitioner, in all of the practitioner's dealings with other practitioners, "must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner's communications are courteous and that the practitioner avoids offensive or provocative language or conduct";
- while the Applicant noted that the husband was not a practitioner, but was self-represented, the Applicant would expect the Respondent to extend the same courtesy to the husband and to any other member of the community during the course of her practice;
- the Respondent may have breached Rule 30.1.2 of the PCPR by engaging in conduct that the Applicant regarded as likely to a material degree to diminish public confidence in the administration of justice;
- the conduct of the Respondent may fall short of the standard of competence that the public is entitled to expect of a legal practitioner.

[68]

The Respondent then provided her response to annexure 7 to the application by letter dated 18 September 2015 which is Annexure 8 to the application. Most relevantly, this letter included the following comments:
- the impugned letter was sent to the husband on the basis of the instructions of the client of the firm (the wife) that the husband was abusive, controlling, intimidating and a difficult person, that he had committed domestic violence against her in the past and that there were intervention order applications brought against him by the wife;
- it was also apparent on (her) instructions that the husband had no regard for court orders and that he was in constant breach of those orders which he did by constantly denigrating her to the children;
- it is an incorrect interpretation to suggest that the Respondent made a 'diagnosis' of the husband's 'disability' as the Respondent is obviously not qualified to make diagnoses of mental disorders or disabilities;
- the impugned letter is forceful and professionally drafted and contains a detailed set of allegations drawn from the wife's instructions;
- the instructions and allegations put in the impugned letter needed a response from the husband and if the matter proceeds to a hearing, then the instructions and allegations would be included in the wife's affidavit material and put to the husband in evidence;
- the impugned letter has to be read in its entirety without specific paragraphs being "lifted" (from the letter) in support of the husband's complaint;
- the instructions upon which the impugned letter was written included that there were final children's orders by which the husband was not abiding, that the parties had initiated each against the other in April 2015 intervention order proceedings on the grounds of domestic violence and that the domestic violence continued with the husband drawing the children into the family law dispute between the husband and wife by suggesting inappropriate behaviour on the wife's part and manipulating the children to take his side;
- the allegations made by the wife on her instructions were that there was domestic violence and Mullane J's words were then quoted in the context of this family law case stating the far reaching effects of inter-spousal violence on children and family dynamics;
- since 2012 the Family Law Act has been amended to give greater weight to domestic violence considerations;
- the Family Law Act emphasises the desirability of parents being as closely involved as possible in their children's lives, both in terms of exercise of parental responsibility and time spent together commensurate with the need to protect the children concerned from physical or psychological harm arising from children being subjected to abuse, neglect or family violence;
- the impugned letter was not seeking to make "a diagnosis" of the family law situation between the husband and wife but merely stating the wife's position and allegation that she was being denigrated constantly by the husband in front of the children and to emphasise that such behaviour constituted "domestic violence";
- a letter written on behalf of a client by a lawyer which outlines a client's position and the legal position as it relates to that allegation is an allegation and is neither a diagnosis nor a finding;
- it is common in legal practice that lawyers on behalf of their clients prepare pleadings, affidavits and correspondence based on their allegations and complaints of their client about another party;
- to re-state the client's position does not constitute conduct falling within the Applicant's charge and accordingly it was inappropriate for the Respondent to accept a caution or reprimand under s 4.4.13 of the Legal Profession Act 2004;
- the Applicant is incorrect in suggesting that defining family violence in the impugned letter and using the same words as Mullane J in M v M in the context of the allegations against the husband is a diagnosis of the husband;
- in this case it was clear the husband was in breach of Court Orders and he had admitted this and on the instructions of the wife he was being abusive;
- the Respondent, an experienced family lawyer, has a role to educate unrepresented parties about the applicable law and an obligation to articulate what is socially and legally acceptable conduct especially in domestic violence matters;
- the wife had instructed that there was a long history of domestic violence which had significant adverse "affects" (sic) on her mental health and "the reader will see that those allegations were put and the law surrounding the way in which the Courts regard those matters were clearly articulated";
- the Respondent had repeatedly requested the husband to obtain legal advice from a competent family law practitioner and it cannot therefore be said that the impugned letter was an attempt by the Respondent to bully or coerce the husband into a particular result;
- the Respondent has drafted "thousands of letters setting out instructions to opposing parties" and this is the first time her integrity and conduct has been questioned.

[70]

the Respondent admitted that the firm acted for the wife at the time it sent the impugned letter, for a short time beforehand, and for some months or weeks afterwards. The firm did not, however, act as her solicitor on the record in the matrimonial proceedings in the Federal Circuit Court or in any other proceeding;
she admitted drafting the impugned letter and causing the firm to send it through one of its employees;
she will not dispute that the husband was not represented by solicitors at the time of receipt of the impugned letter on the basis that her offer not to dispute does not extend to any proposition that the husband did not have access to and/or did not take advice from lawyers during the firm's retainer by the wife;
she does not dispute reasons 10, 17, 21, 37 and 42 which assert that various passages in the impugned letter were based on the instructions of her former client (the wife) and are 'rejected' by the husband;
she admits reason 14 to the extent that she drew on the language of Mullane J's judgment, which she accessed for the purpose of drafting the impugned letter, in the Australian Master Family Law Guide in drafting the bold and highlighted parts of the impugned letter set out in reason 13 of the application;
she admits that the judgment of Mullane J was given on 12 November 1998 in the matter of M v M following a hearing which occurred on three separate days in the Family Court. She also confirmed her consent to annexure 2 to the application being tendered as a true copy of His Honour's reasons in M v M and of the relevant page of the Australian Master Family Law Guide referring to the judgment;
she admits that no attribution was given by her in respect of the bold and highlighted passages from the impugned letter to the Australian Master Family Law Guide or to the judgment of Mullane J;
the authenticity of annexures 3 to 9 to the application is admitted by her and she consents to them being tendered without authenticating evidence. However, rather than responding to the Applicant's comments on them in the reasons for the application, she asserted that it is appropriate for the letters to speak for themselves.

[74]

In the witness statement, the husband noted that the firm was the fifth to act for the wife with the impugned letter being the first contact from the firm. According to the husband, he was horrified when he read it. He was shaken and disturbed by its content and upset to receive it.
Annexure 1 to the witness statement is a letter the husband wrote to the Respondent dated 26 April 2015. There were two attachments to this letter being earlier letters from the husband to the wife's previous solicitors. In both of the attachments, the husband expresses concerns about the effects on the children of the wife's conduct and raises concerns about the possibility of family violence on her part. He also threatens that he will apply for an Intervention Order against the wife due to abusive phone messages being left by her and harassing communications to him from her friends.
In the body of the letter, (annexure 1 to the witness statement) the husband alleged that the wife's then current situation was the result of her own decisions, that she was a threat to the psychological well-being of the children and that in contrast to the last date asserted in the impugned letter as being the date when the wife had met with one of the children (the child's first name was used), they had, in fact, met three months later (a date was provided) relatively shortly prior to the date of the impugned letter.
Finally, in the annexure 1 letter, the husband then strongly disputed each of the allegations that he had manipulated the children against the wife, and that he had been abusive in any way, and that he had denigrated the wife in front of the children. He also noted that the Respondent and the wife are not medical professionals and had no authority to ascribe any medical condition to him. He also stated that comments that his alleged behaviour could bring the children into conflict with the police and the courts and to be imprisoned are absurd as was the suggestion that the children will learn that abuse is a normal part of life for females.
The husband then wrote another letter to the Respondent dated 27 April 2015. This second letter is annexure 2 to the witness statement. In this letter, he stated that certain contents of the impugned letter were abusive and slanderous towards him and he sought withdrawal of the two most criticised paragraphs on the third page of the impugned letter which formed the basis of the eventual complaint and a formal apology from the firm for the Respondent's conduct.
Annexure 3 to the witness statement is a letter from the Respondent to the husband dated 30 April 2015. In her response the Respondent denies that the impugned letter was in any way threatening or intimidating and that concepts of abuse and slander did not apply in the circumstances. The Respondent strongly suggested that the husband should obtain independent legal advice for the family law issues moving forward from lawyers qualified in family law. She then referred to sections of the Family Law Act 1975 relating to parenting and to the objects and underlying principles as set out therein to ensure that the best interests of the children are met and that encourage parents to reach an agreement regarding parenting issues rather than litigating them. Before then setting out comments under the heading "Mediation", the Respondent requested the husband to read the definition of "family violence" as set out in the impugned letter so that he was completely familiar with it after she had just informed him in this letter that, as a result of amendments in 2012 to the Family Law Act, in making parenting orders, the Court has to give greater weight to any family violence considerations. The letter then concluded with the Respondent referring to the possibility of some negotiations taking place directly between the husband and wife.
Finally, it is apparent from Annexure 4 to the witness statement that the husband responded to the Respondent by letter dated 2 May 2015. In this letter, he made counter-proposals for future more formal settlement meetings and discussions, along with various other comments.

[79]

Mr McDonald had acted for an employee in a workplace relations matter. During the course of the matter, Mr McDonald had alleged in correspondence written by him to the firm of legal practitioners acting for the employer that a solicitor at that firm who was involved in the conduct of the matter was "fundamentally dishonest" and "was telling lies" and had engaged in "deliberate and calculated" dishonesty. The appellant's primary position was that the allegations were "soundly based" and, as such, they could not constitute unsatisfactory professional conduct in accordance with Lander.
Zammit J in McDonald ultimately set aside the Tribunal's decision on the basis that it had incorrectly applied the test as set out in Lander in its decision at first instance. Her Honour remitted the matter back to VCAT for determination according to law as she found that the applicability of Lander was a question to be determined by VCAT in the circumstances of the McDonald case.
In Lander, the appellant, Mr Lander, was acting for an employee teacher who was seeking medical retirement from the Department of Education and Training (the Department). Mr Lander was found guilty by the Legal Practitioners Disciplinary Tribunal (the tribunal) of unsatisfactory professional conduct in relation to comments he made in a letter he wrote on behalf of his client to the Department. The tribunal found that the letter contained discourteous remarks and offensive and provocative language. He appealed the findings and decision of the tribunal to the ACT Supreme Court. The Court allowed the appeal in Lander and set aside the findings and orders of the tribunal.
Mr Lander had dealt with the Department on a number of previous occasions and had unsuccessfully attempted to seek an update about the status of his client's medical retirement. This led to him writing the letter to the Department which was the subject of the disciplinary proceedings. The letter included criticisms about the Department and its staff, particularly in relation to practices and administration.
The Department responded to Mr Lander by letter which, amongst other matters, denied the criticisms and confirmed its intention to report the letter to the ACT Law Society for investigation about whether Mr Lander's conduct in writing the letter had breached the standards expected from a legal practitioner. However, the Department's letter also contained substantive information about the progress of the claim of Mr Lander's client which was information it had not previously provided to Mr Lander.
Zammit J noted in McDonald that in Lander, Mr Lander had been charged with breaching Rule 25 of the Legal Profession (Solicitors) Rules 2006 (ACT) which rule Her Honour regarded as being for all intents and purposes identical to Rule 21 of the PCPR which was under consideration in McDonald.
Returning to Mr Snow's submissions in this proceeding, he initially referred with approval to the first sentence in [33] of the reasons of Zammit J in McDonald where Her Honour said: "In my view, the principles set out in Lander apply to any and all comments that are made by a legal practitioner".
Mr Snow then opined that the principles in Lander are traversed within the McDonald decision and that they were sufficiently summarised within the Judgment of Zammit J. He then took the Tribunal to [26] of Her Honour's reasons where she said that the Court in Lander "applied a dichotomous test". Mr Snow adopted what Her Honour said and urged that the Tribunal should also do so in this proceeding. Mr Snow then refers to part of [34] of the McDonald reasons where it is said by Zammit J: '... As set out in Lander, the first question that must be addressed is whether the comments were made in the legitimate pursuit of the client's matter. That is the threshold question and if they were then what is described as the reasonable basis test should be applied'.
Essentially therefore, Mr Snow's submission is that the approach that ought to be taken by the Tribunal is to apply the two fold test to the contents of the impugned letter, that being, whether the comments in it were made in the legitimate pursuit of the client's (the wife's) matter and, if so, was there a reasonable basis for what was said, and if the answer to either question is "no", then the respondent can be found guilty of unsatisfactory professional misconduct.
Mr Snow then submitted that there is no doubt that the impugned letter was discourteous and offensive to the husband as evidenced by his comments in the witness statement and in the complaint about how he felt when he received it and read it.
It was contended by Mr Snow that reasonable minds might reasonably differ as to whether the somewhat aggressive nature of the impugned letter, if founded on a reasonable basis, represented the legitimate pursuit of the wife's interests. However, he submitted that it was unnecessary for the Tribunal to decide this issue as it was plain and clear that the impugned letter, as expressed, cannot be said, and could not be said, to have had a reasonable basis and the gravamen of the Respondent's unsatisfactory professional conduct is that she presented her client's (the wife's) allegations or instructions as if they were established facts. As they were not, there was therefore no, let alone reasonable, basis for the letter to have been expressed in the terms that it was.
To further develop these submissions of the Applicant, Mr Snow then turned his attention to the contents of the impugned letter and, with very minor changes, he did so by reiterating and relying upon reasons 7-43 (both inclusive) for the application. When commenting on the two most criticised paragraphs, he still noted that much of them were reproduced directly from the Australian Master Family Law Guide from the judgment in M v M, with the names of the children interposed without the case or the text being referenced or attributed. However, in his oral submissions, he did not use the specific terms "plagiarism" or "plagiarised", which were contained in the reasons for the application, when referring to the Respondent's conduct in this regard.
Mr Snow also submitted at the hearing that the dicta of Mullane J in M v M in the Australian Master Family Law Guide is not expressing a generalised statement of principle of the effect of what is known as "family violence" but was setting out the reasons why the orders that were made about the children and their contact with their father in M v M were in the form they were.
Without derogating from the reasons for the application, in his oral submissions, Mr Snow indicated that perhaps the most offensive aspect to the husband of the Respondent's conduct was the attribution to him of the disability which Mullane J found to be the "serious handicap" from which the father in M suffered - that being "that he cannot deal with people without resorting to abuse. He is aggressive violent and intimidating." Mr Snow described it as especially offensive and egregious conduct to have said this in the impugned letter. He also contended that no such slur should find its way into a legal practitioner's letter to the effect that the husband suffered this handicap and such characteristics should not have been the subject of the Respondent's labelling of the husband and again this occurred without any reasonable basis in the Lander sense. He also regarded the suggestion at the end of the two most criticised paragraphs that the children could be incarcerated to be absurd and highly offensive.
Mr Snow then expressed the belief that if the impugned letter had proceeded along the following lines, it would likely not have led to this charge:

[84]

Mr Warne handed up to the Tribunal at the hearing written final submissions on liability together with authorities but not before he had made his oral submissions which included both direct responses to Mr Snow's oral submissions at the hearing and reference to his own written submissions.
However, it is appropriate before detailing Mr Warne's submissions, to consider points which appear to be of most relevance to the Respondent's case as contained in her response to the application:
- in response to reasons 7, 8, 12, 13, 30, 33, 34, and 39 which set out extracts from the impugned letter with comments by the Applicant, she says that the letter speaks for itself and the commentary is a matter for submission.
- in response to reasons 9,16, 20, 36 and 41, which assert that a reasonable reader of the impugned letter would conclude that various things asserted by the wife in the impugned letter had been 'established', she denies such allegations, asserts that they should be struck out as embarrassing as what a reasonable reader other than the addressee and sole recipient of the impugned letter would conclude is irrelevant, and the husband, as sole addressee and recipient, would not reasonably have concluded any such thing.
- she confirms specific instructions from the wife that the wife asserts privilege over her instructions to the extent that such privilege has not already been waived.
- in response to reasons 25-29 and 31 which include the Applicant's comments on the Judgment in M v M of Mullane J she says that the Judgment speaks for itself and the commentary is a matter for submission.
- in response to reasons 15, 19, 35 and 40, she says that the passages of the impugned letter referred to therein do not present allegations as if facts, either in the sense that they had been 'determined' or in any other sense.
- she denies that the impugned letter was in any way misleading.
- in response to reason 27 therein which refers to paragraphs 36, 37, 38, 52, 77 and 79 of Mullane J's Judgment as findings of fact by His Honour, she does not admit that she attributed the conduct (and content) therein to the husband.
- in response to reason 28 which refers back to reason 27 and says "The impugned letter attributes such conduct to (the husband) on the basis of the (the wife's) instructions or allegations" she notes that it is one of various passages in the impugned letter which are asserted to be based on the wife's instructions but are rejected by the husband and she repeats that the wife asserts privilege over her instructions to the extent that the privilege has not already been waived.
- in relation to the bold and highlighted portions of the impugned letter she does not admit that they were unwarranted and improper in the context of the instructions to, and information received by, the firm.
- she denies as alleged in reason 30 that she attributed "what Mullane J described as Mr M's 'disability' to (the husband)".
- In response to the last sentence of reason 31 she denies labelling the husband at all and maintained that she expressed no view of her own but communicated the wife's assertions as her representative. She then concluded her response to reason 31 by saying that the wife did not in the impugned letter label the husband similarly to the words from Mullane J's reasons, namely that '[he] suffers a severe handicap in that he cannot deal with people without resorting to abuse' and 'He is aggressive, violent and intimidating.'
- in response to reason 32 which commences with an allegation that there was no basis for a particular passage of the bold and highlighted parts of the impugned letter she begins this particular part of her response by assuming that the passage referred to is: "The greatest danger is that (the children [first names are used]) will learn from your behaviour that physical and emotional abuse are acceptable ways of dealing with other persons and thus come to share your disability. Such a disability could mar their dealings and relationships with others including those they love, bring them into conflict with the police, the court and the community and resulting in them being penalised and imprisoned." She then denies saying, and denies intending to say, in her drafting (of this passage) that the consequences of which there was a danger flowed only from the allegations of abuse specifically set out in the impugned letter. Additionally, she does not admit that, in the context of the entirety of the allegations of abuse which had been levelled by the wife in the Federal Circuit Court proceedings which had by then been running for several years, and of the instructions and information received by the firm, there was no (the Tribunal's emphasis) basis for the impugned letter containing this passage.
- it was then noted on the basis of the correspondence attached to the response to the application and "on the basis of the matters pleaded in the application" that, unless otherwise promptly informed by the Applicant, the Respondent would approach preparation for the hearing on the basis that:

[90]

Mr Warne then opened his oral submissions by stating that he was struggling to understand the Applicant's case. No allegations of any breach of the PCPR had been put in submissions or in the application and likewise there were no allegations of dishonesty against the Respondent. He noted that the Respondent had asked the Applicant previously about what norm he said had been infringed which has led to the charge. As he had now heard Mr Snow's submissions, he believed the Applicant's case to effectively be that there was no norm as such but rather that writing the impugned letter was in a general sense said to have been sub-standard. He noted that Mr Snow had variously described the letter as absurd, highly offensive, and discourteous, but it was not clear whether the Applicant asserted that lawyers cannot write offensive letters. Mr Warne also asserted that while it was quite wrong for students, academics and journalists to plagiarise, he was not aware of any rule in the PCPR about non-attribution or plagiarism. At this point, he sought further clarification from Mr Snow, having regard to these issues just raised, about how the case of the Applicant was being put.
Mr Snow, in response, confirmed that the Applicant could not proceed under rule 21 of the PCPR, as in McDonald, because it was not a communication between practitioners. He reiterated there were no dishonesty allegations and that the case proceeded on the Lander principle which, as Zammit J had confirmed in McDonald, applied to any and all communications of a legal practitioner. He noted that it is not said that it is an offence for a legal practitioner not to attribute or to plagiarise in the sense described. This was only a minor aggravating factor. The focus of the charge, according to Mr Snow, is that the norm breached, if "norm" is the word to be used, is that the impugned letter contained material which did not have a reasonable basis. He then said it was not an offence, having regard to the effect of Lander and McDonald, to write offensively if it was done so in pursuit of a client's interests and it was on a reasonable basis. The Applicant was not seeking to deny the Respondent's right to free speech or to limit how she wishes to communicate whether it be in an aggressive, offensive, strong-minded, robust, or some other manner but in doing so she must do so on the two-fold basis. He noted that there is a good deal of material in Lander about what can be said by practitioners being free to say what they want within the two-fold basis and this was adopted by the Supreme Court of Victoria in McDonald.
Mr Warne then recommenced his oral submissions by observing that the Applicant appeared to have "retreated" from the original allegations. With reference to reason 23 for the application, and the reproduction from the judgment of Mullane J from the Australian Master Family Law Guide without attribution, he had thought the Respondent had been charged with plagiarism and hence this formed part of his written submissions. He would still, however, refer to the plagiarism issue as he submitted that it could not even be a minor aggravating factor.
Mr Warne then submitted that the Applicant's case is utterly misconceived on two bases. The first basis, relating to plagiarism, which he acknowledged now seems to have largely fallen away, is that it is, in his opinion, utterly wrong as a matter of law to allege that the textual use by a solicitor amounts to plagiarism. The second basis of misconception to which he then referred is that the impugned letter had something wrong with it because it presented allegations as if facts. He contended that what was really being said in this regard by the Applicant was that before every allegation, the Respondent should have said "I am instructed that". Mr Warne further noted in this regard that Mr Snow had said that the gravamen of the Applicant's case was the presentation of allegations as if established facts and that is why there is no reasonable basis for it.
Mr Warne maintained that it is the nature of a letter of demand that a solicitor is engaged in a representational sense and the Respondent has not said anything in the impugned letter which represents her personal views. She has commenced it by stating that she has been instructed to write it. It is acknowledged by Mr Warne that she has not thereafter said "it is alleged by my client that ..." but there is nothing wrong with that and it is no different from the language used by the Applicant in the application. He noted that the Applicant might say, in response, that the application is part of an inherently accusatorial process and he is complying with his obligations by stating his reasons for the application without needing to say that all the allegations are not proved, as that is obvious. Mr Warne contended that it is equally obvious that a letter of demand is a document written on instructions which are not the personal views of the writer. It is necessarily, inherently and desirably accusatory so that the full ambit of that which will follow, if it is not complied with, is made known in advance to the person who will otherwise suffer the consequences of court process. A letter of demand then gives the recipient the opportunity to decide what, if any, steps they wish to take in response to avoid court proceedings.
In relation to the reasons for the application, Mr Warne noted that there is no overlap therein in the allegations that the impugned letter is misleading with the allegations of no basis. He then referred to the third basis of the Applicant's case which he now understood to be the no reasonable basis allegation, contrary to Lander. He did not submit that it is utterly misconceived but he still maintained that it is wrong. He noted that Lander is a decision of the Full Court of the ACT Supreme Court and is directly on point with this case as it is about communications by a practitioner to a party who is not a lawyer. Mr Warne then remarked that he was surprised that Lander had not been tendered by the Applicant. Mr Snow had noted that he had believed Lander to have been adequately summarised in McDonald but Mr Warne disagreed. Mr Warne also regarded the decision of Zammit J in McDonald as not directly binding on the Tribunal as it was about conduct rules between practitioners. He also noted that in Lander, the Full Court stated that sometimes practitioners have to make highly offensive comments to other parties and that is just part of the cut and thrust of contested legal proceedings.
Mr Warne then indicated that his written submissions deal with what he had regarded at the time of their preparation (they are dated 21 March 2016) as the three aspects of the charge. He had identified them as plagiarism, misleadingly making out that the wife's allegations about the husband had already been established, and there was no basis beyond instructions for referring to the husband's disability and for communicating the wife's concerns for the future of the children.
In relation to plagiarism, Mr Warne submitted this aspect of the charge should fail for the following reasons:

[108]

It was at this stage in the hearing that Mr Warne handed up his submissions to the Tribunal. In response to general questions from the Tribunal, Mr Warne submitted that the law about freedom of speech is very strong. He had referred in his written submissions to s 15(2) (b) of the Charter of Human Rights and Responsibilities Act 2006 which declares the right to freedom of expression in writing in Victoria which by virtue of s 32 of the same legislation results in statutory instruments pre-2006, such as the PCPR, having to be interpreted in a way that is compatible with human rights. He then went on to note that Lander, which also dealt with the Human Rights Act 2004 (ACT), supports the strength of freedom of speech generally and specifically in the context of a practitioner speaking to advance a client's own interests. He asserted that the Applicant and Tribunal do not know what was said between the Respondent and the wife as solicitor and client, including about issues such as the nature and extent of any cautions given by the Respondent to the wife about making certain allegations. The Respondent's position is that what was said was justified by her acting on the wife's instructions.
In response to direct questioning from the Tribunal about how the client could have known of the existence of the passages from the judgment of Mullane J, which bedevilled the two most criticised paragraphs of the impugned letter, Mr Warne postulated a scenario that could have occurred in communications between the Respondent and the wife. This was to the effect that the Respondent could have informed and advised the wife of these contents of the judgment of Mullane J and she could then have asked the wife whether the reproduced passages applied in the circumstances of her instructions if correctly summarised. If the wife responded that what was said was correct, in accordance with her instructions, and is what she wanted said in the letter of demand then this postulated scenario was consistent with the Respondent's advice to the Applicant wherein she maintained that the wife approved the impugned letter and its contents prior to it being sent.
In his written submissions, Mr Warne reiterated that the Applicant, in correspondence with the Respondent, did acknowledge that she wrote the impugned letter on the wife's instructions. However, in connection with this proceeding and the onus on the Applicant, Mr Warne went on to assert that the Applicant did not investigate, and has not attempted to establish, how well the wife had been advised of the wisdom of making the allegations or about how complete the wife's instructions were that they be put.
In the discussions with the Tribunal, Mr Warne also reiterated, as previously referred in the response to the application, that the impugned letter did not contain the entire factual allegations of the wife and no assumption can be made that they did. Additionally, the Respondent had acknowledged that the dispute between the husband and the wife had a long history and she had not regarded it as necessary to repeat all previous allegations made during its currency. In this regard, Mr Warne noted that it was not for the Respondent to prove that the allegations had foundation but rather it was for the Applicant to disprove them.
Mr Warne also acknowledged that it was odd and perhaps a tactical mistake for the Respondent not to refer specifically in the impugned letter to allegations of the wife to the Respondent about the husband's physical violence towards her but to still refer to the judgment of Mullane J in the manner that she had. However, Mr Warne argued again in this context that Lander was determinative that only if the allegations were false to the knowledge of the practitioner can the practitioner be disciplined. This remained the position even if it was deemed perhaps to be bad advocacy, or poor setting out of the impugned letter, provided the core activity of the practitioner was representational. He regarded the limits placed on a practitioner's speech by Lander as being very attenuated. The Respondent had not admitted that she did not have any basis to make the allegations. No assumption, according to Mr Warne, can be made about her instructions or about the evidence or orders previously made in connection with the long-running dispute between the husband and the wife, other than the orders set out in the impugned letter. The Respondent's obligations were to put all relevant allegations in the impugned letter in advance of any contravention application that was threatened.
Further, in these discussions with the Tribunal, Mr Warne also submitted that the Tribunal does not know anything about the husband or about his history. He contended that the husband rejected, but did not deny, the allegations, only noting that they were out of order, and in the complaint he could be said to have chosen his words carefully by simply saying that he had never been charged with family violence. According to Mr Warne, this does not mean that he had not perpetrated it. He regarded there to be an unexplained absence of evidence generally from the perspective of the husband about these allegations and certainly this was the case in the witness statement specifically. Mr Warne also postulated a concern that one of the driving forces behind this proceeding was a view held, and an assumption made, by the Applicant that the husband was an extremely nice person and nothing like the father in M v M. However, while Mr Warne was not disputing that in reality this is the case, he reiterated that it might not be so and no definitive position could be taken on this issue on the evidence.
In response to Mr Warne, Mr Snow confirmed that the Applicant had never suggested that the Respondent had written the letter from her own personal views and accepted that she had done so on the instructions of the wife. But, in this regard, Mr Snow submitted that the solicitor's role was not to be a mouthpiece of the client and to act in an unfettered manner. While acknowledging the constraints and restrictions due to the privilege issue on knowing more about the domestic dealings between the husband and the wife, Mr Snow did dispute that there was not anything known about the husband. What was known was that the father in M had been found guilty of acts of assault and there was an absence of such findings against the husband. Mr Snow refuted the submission of Mr Warne that the husband merely rejected the allegations of family violence against him and he relied on the strong denials by the husband of the allegations which appear in his letter which is annexure 1 to the witness statement. He regarded Mr Warne's submissions as inadequately grappling with the two most criticised paragraphs and the concept of presentation of allegations as established facts. Finally, Mr Snow disputed the assertion put on behalf of the Respondent that only the husband had read the impugned letter. He noted that annexure 2 to the witness statement, which is the redacted version of a letter from the husband to the respondent, contains a sentence wherein the husband stated that he had two legal practitioners "look over your letter". Mr Snow reiterated that the hypothetical reasonable reader test was applicable and the impression gained by both he and his instructor was that the impugned letter did present allegations as if facts. It was also never put by the Applicant that the husband had been misled by the impugned letter because he knew that the husband had known the facts.
Mr Warne then addressed the Tribunal further on Lander and McDonald. In Lander, he asserted that, as set out in the Federal Law Reports' official headnote, "the real issue was not that the solicitor made the comments complained of in the course of correspondence confirming his client's claim, but whether the accusations and criticisms he made were false or without foundation, to his knowledge". As a result, Lander was authority that no matter how outrageous, hapless, provocative or rude were the statements of the practitioner, if they were true or even if they would justify a defence of qualified privilege in a defamation case, there is no misconduct. Lander, he reiterated, is directly on point in this case as it specifically dealt with any restrictions on freedom of speech in the context of communications between a practitioner and a third party. He contended to the Tribunal that it essentially does not need to have regard to the decision of Zammit J in McDonald because Her Honour was dealing with another type of situation, being practitioner to practitioner. Mr Warne on this issue asserted that it is the Applicant which has the Briginshaw standard of proof to overcome (Briginshaw v Briginshaw [1938]60 CLR 336) but the Applicant has not sought to prove whether the allegations are true or false and nor has the Respondent.
Mr Snow responded that as the case was put on the basis of a single charge of unsatisfactory professional conduct, and it was not an especially high hurdle to overcome for the Applicant to establish it as applying to the Respondent's conduct.
On the issue of the charge involving competence and diligence, upon specific enquiry from the Tribunal, Mr Warne confirmed that he did not wish to add any oral submissions to those in his written submissions to which the Tribunal will now turn.
In his written submissions, Mr Warne stated that there must be some limit generally to a legal practitioner's actions which warrant discipline for incompetence and particularly so in this case where there is no allegation by the Applicant of the Respondent not acting in the interests of her client or to her detriment. Mr Warne distinguishes reckless or intentional conduct which relate to honesty of the Respondent which, as again noted, is not questioned in this case. In then dealing with the issue of how serious does negligence have to be to warrant discipline, he referred to comments of Professor Dal Pont in "Riley's Solicitors Manual" about the decision of the Legal Professional Disciplinary Tribunal in Re Spero Pitsikas (1995) 1 LPDR 5. Professor Dal Pont had noted that in Pitsikas, the Tribunal had characterised what was required to constitute unsatisfactory professional conduct as "something more than mere negligence but something falling short of professional misconduct" and had sought to illustrate it by the following example: "not knowing that a contract for sale of land should be stamped as distinct from knowing that it should be stamped but not calculating the correct amount - the former shows a lack of professional conduct and diligence, whereas the latter may be mere negligence".
The final issue raised at the hearing between Counsel arose from Mr Warne's concluding observation that the charge, according to the reasons for the application (with specific reference to reasons 31 and 32) was brought on the basis of there being "no basis" for the allegations made by the Respondent whereas in oral submissions, Mr Snow had submitted that there was "no reasonable basis" for the allegations but, despite this, had not sought to formally amend the reasons. Mr Snow disputed this, noting that he was relying on the wording of the charge as stated at the end of the application, that the Tribunal does not require pleadings in the strict sense of the rules of court but reasons have nevertheless been given for the application, and that in support of it, on behalf of the Applicant, he only had to lead evidence and to make submissions. Mr Warne, however, maintained that although the Tribunal is not a court of pleading, natural justice requires that material facts be alleged to support a charge. While he noted that the Applicant had done so in the reasons for the application, he was now required to establish them to succeed.

[117]

The charge in this proceeding is brought without any supporting allegations that the Respondent's conduct contravened the Legal Profession Act 2004, the regulations or the PCPR, or was dishonest.
In the context of the evidence of the Applicant, Mr Warne spoke critically of the failure to call the husband or to seek to call the wife and about the contents of the witness statement. However, in practical terms, calling oral evidence, given the nature of the charge and the circumstances in which the conduct alleged to support it is alleged to have arisen, it could well have, somewhat unsatisfactorily and inappropriately, resulted in a partial quasi "mini" hearing of aspects of the substantive family law dispute. The husband, being the Complainant, was not the client of the Respondent. It would have been of no benefit to seek to call the wife. As stressed by Mr Snow, the husband, in annexure 1 to the witness statement, "strongly disputed" to the Respondent in an open letter that he had ever manipulated the children against the wife, or that he had been abusive in any way or that he had denigrated the wife in front of the children. It may well have been preferable from the perspective of consistency to have included these comments also in the body of the witness statement itself, but the failure to do so is not decisive.
The complaint, the investigation, the application, the reasons for making it and the responses to it have resulted in considerable documentation containing open statements of each party's position with admissions, non-admissions and numerous disputed allegations both about the husband and wife and their issues and in pleadings and correspondence between the Applicant and Respondent.
The dispute between the husband and the wife in the material before the Tribunal, at the date of the impugned letter, was primarily about access to the children and possible variations to existing agreements and/or orders. This appeared to have arisen from the inter-relationships between the husband, the wife and the children since previous court orders had been made at least 18 months or more prior to the Respondent becoming involved.
The Tribunal is not asked to, and cannot, make any findings about the veracity and credibility of either the husband, the wife or the Respondent.
The Respondent admits non-attribution of the Australian Master Family Law Guide and of M v M in relation to the usage and reproduction of portions of Mullane J's judgment in the two most criticised paragraphs. Despite this, other considerations aside, the Tribunal accepts the Respondent's submissions that when this particular conduct is examined, in these circumstances, and without evidence of intent, it cannot be found to fall within the concept of plagiarism and, in this sense, this concept neither supports the charge nor is a factor for consideration.
The Tribunal also finds that the aspect of the impugned letter being "misleading" does not, of itself, support the charge. Mr Snow's submissions that the impugned letter presented allegations as if established facts had considerable relevance to the basis upon which he put the Applicant's position in this regard. However, he eventually clarified that it was not asserted that the husband was misled but rather it was the hypothetical reasonable reader who would be misled.
In the latter regard, Mr Warne commented to the Tribunal that he had the impression that underlying the criticism of the impugned letter on this aspect was the insufficient expression of confirmation by the Respondent that she had been instructed by the wife before making each allegation. The Tribunal found these comments to have merit and to be persuasive. It may reasonably be asserted, from a drafting perspective, that the impugned letter should have been written by the Respondent differently by having set out paragraphs in a different order, particularly with reference to the third page, and to have made more references throughout the letter to having acted on the wife's instructions rather than only at the beginning of the letter. However, the Tribunal does not regard these issues as objectively resulting in the impression that the letter presented allegations as established facts or that it would have misled the hypothetical reasonable reader as such. Mr Snow commented that he and his instructor, when reading the letter, both found it to present allegations as if facts. No criticism is made of these observations being brought to the Tribunal's attention but they are not of any evidentiary value per se.
Overall, the Tribunal accepts Mr Warne's submissions about the inherent nature of a letter of demand and the apparent representational manner in which it is written. This is consistent with the comments of the Full Court in Lander at [46-48] where it said:

[131]

Mr Warne, in the latter part of his oral and written submissions, sought to confine Lander's principle, and therefore application, when compared with the dicta above of Zammit J in McDonald by asserting that the Full Court in Lander held that the appropriate limit on free speech is where false allegations are made to the knowledge of the practitioner and that this was what it obviously meant to refer when it spoke of having a "reasonable basis" for speech to a third party.
Despite this, a little earlier in his written submissions, Mr Warne had noted that at [44] in McDonald, Zammit J specifically approved the passage from Lander at [46-47] quoted in 103 of these reasons above, after having found at [33] that "the principles set out in Lander apply to any and all comments that are made by a legal practitioner". Mr Warne had then submitted that Zammit J's decision was of direct application. It is appropriate to also note that, again in his written submissions, when Mr Warne referred to the Lander passage quoted above in 103 of these reasons, he emphasised the Full Court's dicta in the second part of [47] when it said: "Yet, if the solicitor had received apparently reasonable information supporting such an accusation, he or she is bound to put it to the recipient. Nor is the mere fact that the accusation is made robustly a valid cause for the complaint."
The issue for determination in the Tribunal's view, after considering Counsel's submissions, is whether, in connection with the reproduction in the impugned letter of any part of the Mullane J judgment in M v M from the Australian Master Family Law Guide, the Respondent, in the circumstances, included allegations which were without foundation, as when objectively assessed, they were without any reasonable basis.
The allegations to be examined in this regard can be categorised as the reference in the two most criticised paragraphs to a disability of the husband and its effects on the future of the children. These were the allegations most central to the complaint and most offensive to the husband. They were focussed on by both Mr Snow and Mr Warne in their submissions. As previously noted, Mullane J in his judgment found at [79] that the father in M v M "suffers a severe handicap in that he cannot deal with people without resorting to abuse. He is aggressive violent and intimidating." Mullane J had heard evidence about D who is a son of the mother in M v M from another relationship and about B and E who are the son and daughter respectively from the relationship of the mother and father in M v M. At the date of the hearing, D was aged 7, B was aged 4 and E was aged 3.
The Tribunal accepts, as submitted by Mr Warne, that little is known in relative terms about each of the wife's instructions to the Respondent, what advice and cautions were given by the Respondent to the wife, the past hearings, orders or evidence given in earlier Court proceedings relating to the dispute, or about the husband, the wife, and the children as individuals generally.
The two most criticised paragraphs in the impugned letter are not identical in wording to paragraphs 94 and 95 in Mullane J's judgment. However, Mr Warne noted in his written submissions on the aspect of plagiarism, "the Respondent does not argue that the two texts are sufficiently dissimilar that they could not amount to plagiarism in an appropriate context and if accompanied by the relevant state of mind".
Paragraph 94 of Mullane J's judgment commences "The father's abusive behaviour presents a multi-faceted danger for the children". The use of the word "disability" is not used until paragraph 95 and there is no use of the word "handicap" in either of these paragraphs by Mullane J. As Mr Warne submits, the word 'disability' simply means a particular physical or mental weakness or incapacity. The Tribunal notes that the Respondent has said in an open letter that the wife instructed her that the husband was abusive towards her physically, emotionally and psychologically. Therefore, whether in using the term "disability" in paragraph 95, Mullane J intended to only refer to the father's "abusive behaviour" expressed in paragraph 94 or, instead to his more detailed description of the father's "handicap" in paragraph 79, none of the actual words used can be said with sufficient certainty to be entirely inapt in the Respondent's use of the term "disability" in light of the wife's instructions to her and without any further direct evidence being available to the Tribunal. Therefore, the Tribunal cannot find that reference to a disability of the husband is without foundation.
A significant amount of evidence was given in the hearing of M v M by Ms Single who appeared to be a counsellor and who was referred to by Mullane J as a Court expert. Some of her evidence was about both B and E, but considerably more was about B.
In M v M, some of the allegedly abusive behaviour of the father, in addition to the clearly established physical and emotional violence, was found to be denigration of the mother in front of the children. This last issue is relevant when considering the allegations made in the first of the two most criticised paragraphs in the impugned letter. The allegations in that first paragraph about the effects of the husband on the children are very similar to the findings of Mullane J in M v M in paragraph 94 of his decision about the effects on B and E of their father's behaviour. However, the nature of the allegations and the description of their effects are again, not so specific and extreme, that the Tribunal can find with sufficient certainty that they are without foundation.
However, it is in relation to the second of the two most criticised paragraphs in the impugned letter, with specific regard to the wording and contents of paragraph 95 of the judgment of Mullane J, and against the background to findings of His Honour in M v M, that the Tribunal's concerns about the Respondent's conduct are enlivened in this disciplinary proceeding.
In the reasons of Mullane J, he recounted in some detail evidence of Ms Single about B which included detailed descriptions of very troubling matters specifically involving him and of extremely serious fears held about him. These included that B had admitted witnessing violence by his father to B's mother, to E, to D, and to B's paternal grandmother. B had also been subjected to violence from his father. Ms Single had observed B being provocative, aggressive and violent to both D and E. He expressed violent fantasies to her and she regarded him as living in a violent psychic world. B's mother had also separately informed Ms Single that B hits and punches her, including in the face, and physically threatens her, is cruel to E including punching her very hard and once trying to drown her at the beach, and is provocative towards, and taunting of, D. Ms Single had additionally separately ascertained that B had threatened to stab both his mother and her then current partner (who apparently was very appropriate in his treatment of the children), had also bitten and kicked his mother and kicked her partner, and his violence, according to his paternal grandmother, was getting worse. The dangers and concerns for the future of B found by Mullane J, due to the effects of the father's behaviour on him, and as clearly expressed by His Honour in paragraph 95, were as a direct result of his acceptance of the above evidence of Ms Single. They were specific to B and clearly contributed to the orders he made.
The Respondent, by way of reiteration, has admitted sourcing directly from the Australian Master Family Law Guide the portions of the judgment of Mullane J without attribution or reference to it. She has not made any reference in her correspondence with the Applicant and the husband or in her response to the application about having read or considered the actual evidence, findings, reasons and orders in M v M before sending the impugned letter. She has otherwise entirely reproduced paragraph 95 in the second of the two most criticised paragraphs, except for interposing the first names of the children, in lieu of B.
The Tribunal has had regard to the seriousness of the description of the behaviour of B and the gravity of the findings of Mullane J about him in M v M, and to the volume and content of material provided in evidence in this proceeding, without any suggestion of any remotely similar behaviour of the children. After such consideration, the Tribunal finds it so inherently unlikely that the wife would have given instructions to the Respondent about behaviour of the children akin to that of B in M v M, that it is satisfied to the Briginshaw standard that she did not do so. Accordingly, the Tribunal is comfortably satisfied that the allegations made by the Respondent in the second of the two most criticised paragraphs about the potential extreme effects on the future of the children as a result of the husband's behaviour were made without foundation or basis. Any purported approval of the letter's contents by the wife is therefore of no relevance.
In relation to the concerns expressed by Mr Warne about the sufficiency of the reasons for the application as being appropriate particulars to support the charge, the Tribunal accepts that the Respondent is entitled to proper particulars as a matter of natural justice. The Tribunal, however, regards the particulars as being proper and sufficient as there was, in reality, no basis for the Respondent to make the allegations set out in reason 32, and while not finding reason 31 as proven, it does find reason 32 proven.
In relation to the issue of "competence" as a component of the charge of unsatisfactory professional conduct, the Tribunal gives it a wider interpretation than that submitted by Mr Warne. In other words, the Tribunal regards it as encompassing the conduct of the practitioner in the context of the legal profession as a whole rather than being limited to the client relationship only. Such an approach is consistent with the wording of section 4.1.1 of the Legal Profession Act 2004 when expressing the objects of the Chapter containing the disciplinary provisions and includes the duties of the practitioner to the Court and to the administration of justice.
In looking at whether the Respondent's conduct was of such an incompetent nature as to warrant disciplinary action, the Tribunal finds that it was, as it goes beyond mere negligence in the circumstances of this matter. The allegations which were made without foundation in a potentially litigious matter were of a serious nature and resulted from an experienced litigation practitioner failing to examine or consider, in any substantive sense, beyond a brief reference in a text, the full context in which a Court's findings and orders in a particular case were made. The Tribunal is comfortably satisfied that the Respondent's conduct therefore fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Accordingly, the charge of unsatisfactory professional conduct against the Respondent is found proven and orders are made accordingly. In relation to the orders made, the Tribunal has made provision for sanction and costs to be dealt with "on the papers" by submissions if the parties are still desirous of so doing as was proposed at the hearing, in the event of a finding against the Respondent.

Victorian Legal Services Commissioner v Low

At a glance

Court

Decision date

Before

Source

Judgment (131 paragraphs)

Victorian Legal Services Commissioner v Low (Legal Practice) [2016] VCAT 1584 (16 September 2016)

Parties

Legislation Cited (9)

Cases Cited (3)