The Tribunal accepts the undertakings given by the respondent previously referred to.

Victorian Civil and Administrative Tribunal|2015-09-24

The applicant invited the Tribunal to consider referring the respondent to the Supreme Court with a recommendation that his name be removed from the Roll of Practitioners. Counsel for the applicant submitted that referral of the respondent was appropriate in order to express denunciation of his actions. Denunciation is not a reason to refer a practitioner to the Court. Removal from the Roll occurs when the Supreme Court determines that a practitioner is presently and indefinitely unfit to remain on the Roll[4]. Any recommendation of the Tribunal does not bind the Court which will make its own independent assessment of the question.[5] A recommendation by the Tribunal is likely to be appropriate if the Tribunal considers that there is a reasonable prospect that the Court will make the order and/or the circumstances are such that a removal order appears to be called for and the question ought to be referred to the Court for consideration. The Tribunal does not consider that such a reasonable prospect exists.
Having regard to all of the above factors, the Tribunal does not consider it appropriate to make such a referral.

The nature of the offences and the respondent's present psychological state lead the Tribunal to the conclusion that he is not presently fit and proper to practise. This, together with the need for general deterrence, leads to the conclusion that there should be a period of disqualification from practice. The evidence of Mr Watson-Munro also indicates that cognitive behaviour therapy is required to address the respondent's present psychological state.

The Tribunal accepts the undertakings given by the respondent previously referred to.

As previously stated, the respondent's practising certificate has not been renewed for the current practising year pending the outcome of this proceeding. He currently practises pursuant to the deeming provisions. The respondent is disqualified from holding a practising certificate during the current practising period, that is until 30 June 2016.
The respondent is not to be issued with a practising certificate in relation to the period commencing 1 July 2016 until such time as he has filed with the Victorian Legal Services Board a report from Mr Tim Watson-Munro, or other suitably qualified psychologist approved by the Victorian Legal Services Board, attesting to the treatment received by the respondent and satisfying the Victorian Legal Services Board that the respondent's psychological health is such that he is fit to be issued with a practising certificate.
The respondent may only practise as an employee until 30 June 2020.

The respondent is to pay the applicant's costs agreed and fixed by the Tribunal in the sum of $28,307.11 on or before 10 December 2015.

[1] Sterling v Legal Services Commissioner [2013] VSCA 374.

[2] Legal Services Board v McGrath [2010] VSC 266; (2010) 29 VR 325 at 329. The protection extends 'beyond the public to include the legal profession as a group, the Courts, the justice system and community confidence in that system'.

[3] Victorian Lawyers RPA v Yvonne Grace Young [2001] VSC 28 at paragraph 28.

[4] Legal Services Board v McGrath (No. 2) [2010] VSC 332, per Warren CJ.

[5] Legal Services Commissioner v Telehus [2014] VCAT 24.

Victorian Legal Services Commissioner v McBain (Legal Practice) [2015] VCAT 1545 (24 September 2015)

Please explain how the beneficiaries could give informed consent to the taking of commission on 21 November 2011 and 12 December 2011, given that at that time you had not completed the necessary work to finalise the estate?
You have provided a copy of your Deed Evidencing Agreement with the beneficiaries dated 30 April 2012, in which you allege that the beneficiaries agree that you may receive a commission of 2%. In accordance with the principles outlined in Walker v D'Alessandro [2010] VSC 15, please explain and/or provide evidence of:
1. The account referred to at paragraph 6 of the Deed, which should draw a distinction between the work for which you have charged legal costs and the work for which you have claimed commission;
2. Your full explanation regarding the beneficiaries' entitlement to have your application for commission assessed by the court; and
3. Evidence that you advised the beneficiaries to seek independent legal advice before agreeing to the payment of commission at a rate of 2% and signing the Deed."

Victorian Legal Services Commissioner v McBain

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (1)

Cases Cited (3)

Victorian Legal Services Commissioner v McBain (Legal Practice) [2015] VCAT 1545 (24 September 2015)