Respondent's final submissions on disposition and costs

1. The Respondent's submissions were somewhat more lengthy and detailed than those of the Applicant. This is recorded by the Tribunal as a matter of fact without any inferences to be drawn therefrom. They commenced by clear reiteration that the finding of the guilt of the Respondent was for unsatisfactory professional conduct, which was the only charge brought by the Applicant, and that no allegation was made that the whole of the conduct upon which any charge was sought to be based amounted to professional misconduct. In other words, it was stressed that the Respondent's conduct was found to have fallen short of the standards of conduct that a member of the public is entitled to expect of a reasonably competent lawyer rather than being a serious failure to maintain the standards of competence that a member of the public is entitled to expect of a reasonably competent lawyer.
2. Following on from this position, the Respondent contended that the charge was sustained by reference to only one of many allegations by the Applicant 'which, even in combination, were not said to amount to a serious falling short'. As non-serious conduct, any punishment should reflect accordingly.
3. The submissions then referred in some detail to the Tribunal's reasons, the alleged applicable law and contemporary knowledge of the legal profession about the subject matter of the Applicant's charge, and the conduct by the Applicant of the investigations into the Complaint against the Respondent. Assertions made by the Respondent in these portions of the submissions included:
   • - restrictions on lawyers' speech have traditionally focused on the making of serious allegations against persons;
   • - in contrast, the error found by the Tribunal in respect of the Respondent's conduct was an error of reasoning by inference which had no bright dividing line between a proper and an inadequate factual foundation;
   • - the law in relation to the competing obligations of solicitors to do as their clients say, and their obligations to have a factual foundation for allegations of misconduct is in a state of flux and the Applicant, himself, did not know it properly as the majority of his case failed;
   • - the law as applied by the Tribunal was certainly not able to be found in standard texts on lawyer communications;
   • - the applicable norm as found by the Tribunal was only identified at the disciplinary hearing;
   • - the Applicant changed the course of his investigations, after having initially focussed on the Professional Conduct and Practice Rules 2005;
   • - the Applicant did not prosecute the breaches for which the Respondent was offered a reprimand but declined;
   • - it may be said that the case against the Respondent was a test case in which the Tribunal has declared the law in relation to practitioner obligations to have an objectively proper foundation in all their comments;
   • - the Respondent should not be harshly dealt with for acting in contravention of this law, given its obscurity; and
   • - the Applicant was unsuccessful in relation to four out of five heads of controversy.
4. The submissions then provided details about the Respondent herself and her response to the Applicant's submissions on deterrence. These portions of the submissions included the following contentions and assertions:
   • - the respondent qualified as a lawyer in Malaysia in 1984 and commenced legal practice there in 1985. Between 1989 and 1992, she lived in England, obtaining a Masters of Laws and working in private legal practice before moving to Australia and completing a degree recognition course at the University of Melbourne;
   • - in 1993 after admission, she worked for 4 years for Sica and Co and during this period of time, she also volunteered on a fortnightly or monthly basis at community legal centres and women's aid groups;
   • - between 1997 and 2011, the Respondent was a sole practitioner and volunteered with another legal centre. She then assisted in her husband's business until 2014 when she returned to legal practice. She has been involved in community choirs and undertaken fund-raising for St Kilda Mission;
   • - the Tribunal has noted her impressive character reference from Portfolio Law attached to her submissions;
   • - she will abide by the Tribunal's finding in all future correspondence "so long as it stands as good law";
   • - the Respondent denies over-complicating the proceeding and regards herself as having been substantially successful in defending the allegations against her;
   • - she does not regard her conduct of the proceedings as demonstrating any lack of insight.
5. On the issue of appropriate orders as to penalty, the Respondent confirmed that she has personally funded substantial legal fees and acted as her own solicitor devoting substantial time to the prosecution. In light of the Applicant's concession about general deterrence and the absence of any evidence that she will not abide by the Tribunal's ruling, the Respondent regards a reprimand as a more than sufficient penalty.
6. In relation to a reprimand, particular reference is made by the Respondent to two cases. The first is a 1994 unreported decision of Peeke v The Medical Board of Victoria wherein His Honour Justice Marks noted that a reprimand is not a trivial penalty for a professional person as it has the potential for serious adverse implications. In Legal Services Commissioner v Macgregor [2013] VCAT 2145 at [78], Member Wentworth observed: 'Further, the denunciation of Ms Macgregor's conduct will be published, as her Counsel noted, on the Internet, which is a widely accessible form of publication. In addition, she will pay costs.'
7. On the issue of costs, the Respondent has made a number of submissions including:
   • - save as detailed in Clause 46D Schedule 1 of the VCAT Act, the ordinary costs discretion in civil proceedings applies, section 109 of the VCAT Act being excluded from operation;
   • - clause 46D applies only to the extent the prosecution was successful. Clause 46D (2) does not require the Tribunal to award the Applicant the costs of the proceeding where any finding of unsatisfactory professional conduct, no matter how insignificant in the context of the allegations made by the Applicant, is made. The costs which the Tribunal should award the Applicant unless there are exceptional circumstances are only the costs peculiar to the small part of the prosecution which was successful, and a percentage of the common costs proportionate to the degree of success enjoyed by the Applicant;
   • - costs are to be ordered against the Applicant only in special circumstances which is a less stringent test than exceptional circumstances;
   • - in considering what are special circumstances, the Respondent refers to R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 2008: 'It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one that is regularly, or routinely, or normally encountered'.
   • - as a matter of substance, the prosecution was largely unsuccessful despite all the allegations of the Applicant having been 'rolled up' into one charge;
   • - the Applicant only succeeded on a greatly attenuated factual foundation;
   • - the costs of discrete issues should be treated separately as follows:
     • (a) no party is entitled to a costs order of the anonymisation applications;
     • (b) no party is entitled to a costs order for the allegations that the Respondent made the statements in reason 31 of the application without any foundation and all the other statements except those in reason 32 'improperly';
     • (c) the Respondent should pay the Applicant's costs of the allegation that she made the reason 32 statements without a proper foundation;
     • (d) the Applicant should pay the Respondent's costs of the allegations of making misleading statements in the impugned letter and that she was guilty of plagiarism.
   • - the special circumstances required to justify the costs orders against the applicant pursuant to clause 46 D (3) are that, in a case alleging the making of serious allegations without an adequate foundation, the Applicant made serious allegations without an adequate foundation;

1. The Applicant maintained its position on both penalty and costs despite the Respondent's submissions. In fact, the Applicant now seeks costs of $12901.65 in accordance with the updated itemised schedule attached to the reply submissions.
2. In relation to costs, the Applicant regarded the Respondent's submissions as flawed by virtue of [46] hereof, because she stated that 'Clause 46D applies only to the extent the prosecution was successful.' As then put by the Applicant, the prosecution was entirely successful and, as a matter of substance, to submit otherwise is incorrect. The Applicant applied for a single charge of unsatisfactory professional conduct to be heard and determined by the Tribunal which ultimately determined that it was comfortably satisfied that the single charge had been proved.
3. The applicant also submitted that no exceptional circumstances have been identified by the Respondent and therefore, in accordance with Clause 46D (2), the Tribunal must make an order that the Respondent pay the Applicant's costs. He contended that Clause 46 D (3) applies to proceedings in which the Tribunal has not found a respondent guilty of unsatisfactory professional conduct or professional misconduct and, accordingly, as it is not engaged in this proceeding, the Tribunal does not need to consider the purported special circumstances submitted by the Respondent.
4. Finally, the Applicant submits that the Tribunal should fix the costs to be paid by the Respondent at $12901.65 as there were no specific objections raised by the Respondent to any item in the Applicant's initial schedule of costs and disbursements.

1. Having regard to the 'lower end' nature of the sustained charge of which the Respondent has been found guilty and the parties' submissions, the Tribunal finds that she is to be reprimanded.
2. However, the Tribunal accepts the content and basis of the Respondent's submission that she will abide by the Tribunal's finding in all future correspondence. There is no discernible overriding concern that warrants the Tribunal to doubt her openly stated position in this regard. Additionally, the Respondent was entitled to contest the charge and her decision to do so and the manner in which she did are not demonstrative of a lack of insight. On these bases, the Tribunal will not impose the requirement for additional CPD points.
3. Finally, as to penalty, the Tribunal is also not prepared to impose a fine. It finds the Respondent's otherwise blemish-free record, her career history and her volunteer participation over a number of years to be compelling reasons for finding that a reprimand is a sufficient penalty. A number of cases, in addition to the two referenced earlier, have confirmed the significance of a reprimand. Again, the 'lower end' nature of the sustained charge is also relevant to this finding.
4. Despite the submissions put by the Respondent about costs, the Tribunal does not accept that exceptional circumstances or special circumstances exist which would warrant the making of any order that contemplated something other than the Applicant's costs being paid by the Respondent.
5. The issue of exceptional circumstances was considered by Deputy President Macnamara (as he then was) in Legal Services Commissioner v McNamara (Legal Practice) [2011] VCAT 1533 (McNamara). In this matter, the applicant had sought findings of professional misconduct on two charges against the respondent practitioner. The Tribunal found that the first charge should be dismissed and that the second charge should result in a finding of guilt on the lesser species of unsatisfactory professional conduct. Most relevantly to this matter, Counsel for the respondent in McNamara, asserted that in relation to costs considerations, the proceeding was an exceptional one because it is customary for the applicant in such matters either to obtain a plea from the practitioner which the applicant is prepared to accept or to have findings made by the Tribunal in accordance with the case put by the applicant. Deputy President Macnamara accepted that exceptional circumstances constituted something more out of the ordinary than special circumstances. Having said that, he did not believe the relative lack of success for the applicant in the contested disciplinary hearing, as an issue considered in isolation, was one which should be regarded as exceptional. This finding in McNamara, while not binding, is nevertheless persuasive to this Tribunal in a proceeding where the Applicant did succeed entirely in that the one charge brought was sustained.
6. The issues of exceptional circumstances and special circumstances in the context of Clause 46D were also examined in Legal Services Commissioner v Kiatos [2013] VCAT 1524 (Kiatos). In Kiatos, following a re-hearing in which the previous decision of the Tribunal had been set aside, and the respondent practitioner had been found guilty of one count of professional misconduct, numerous grounds alleged to constitute exceptional circumstances, alternatively special circumstances, were submitted by the practitioner's Counsel for taking into account by the Tribunal in making any order as to costs. Included in these grounds, most relevantly, were criticisms of the applicant's conduct including that his allegations made at the previous hearing were not pursued at the rehearing and were toned down, there had been considerable delays in the investigation of the Complaint and the initial allegations made by the applicant had no proper foundation, were speculative and contrary to admissions made by the practitioner. The Tribunal President, Justice G. Garde, and Member R. Page, in rejecting the matters raised as being 'exceptional circumstances' or 'special circumstances,' noted that while the charges initially laid were compressed into one charge and the allegations reduced in gravity, the allegation concerned the same incident. Again, as with McNamara, Kiatos is not binding but is also persuasive to this Tribunal. In this proceeding, while there were changes in the focus of the Applicant's investigations and the allegations, they all concerned the one issue, being the impugned letter.
7. Accordingly, the Tribunal, in accordance with Clause 46D, orders that the Respondent is to pay the Applicant's costs. While acknowledging the Applicant's submission that no objections were made by the Respondent to any items in the schedule of costs, the Respondent should be given the opportunity, in the absence of agreement between the parties about costs, to put any arguments she might wish to make on costs including with regard to what she contends as 'the ordinary costs discretion in civil proceedings.' These are more appropriately for assessment by the Costs Court and the 'usual' orders are made by the Tribunal accordingly.