Victorian Legal Services Commissioner v O'Brien (Legal Practice) [2025] VCAT 952

1. The Tribunal recommends to the Supreme Court of Victoria ('the Court') that the respondent's name be removed from the roll of legal practitioners kept by the Court.

1. The respondent is reprimanded.
2. The respondent is prohibited from applying for an Australian practising certificate for a period of 10 years from the date of these orders.
3. The respondent is to pay a fine in the amount of $25,000.
4. The respondent is to pay the applicant's costs of the proceeding, to be assessed by the Costs Court in default of agreement.

1. The respondent is reprimanded.
2. The respondent is prohibited from applying for an Australian practising certificate for a period of five years from the date of these orders, to be concurrent with the order in J22/2022.
3. The respondent is to pay a fine in the amount of $5,000.
4. The respondent is to pay the applicant's costs of the proceeding, to be assessed by the Costs Court in default of agreement.

1. This is my decision about the appropriate penalty orders in two professional disciplinary cases, J22/2022 and J59/2023, brought to VCAT by the Victorian Legal Services Commissioner, under the Legal Profession Uniform Law (Victoria)[1] ('Uniform Law') and heard together.
2. In both cases Mr John O'Brien is the respondent, and in both cases I have previously made serious findings against him in relation to his professional conduct.
3. My findings and reasons in J22/2022 were published in Victorian Legal Services Commissioner v O'Brien,[2] which also contains a summary of my decision (reasons given orally) in J59/2023.
4. I refer to that decision ('the liability decision') without repeating what is set out there, except in summary form. It provides the background to these reasons and should be read in conjunction with them.
5. For ease of reference, the charges found proved, as recorded in the formal findings in that decision are appended.

1. In J59/2023, on 23 January 2024, with his agreement, I found Mr O'Brien guilty of four charges, finding that in each case he had engaged in professional misconduct.[3]
2. That case concerned his conduct between March 2019 and September 2020. In short, Mr O'Brien breached court orders and sent undoubtedly inappropriate, discourteous, and offensive emails to the Supreme Court of Victoria and its staff, in the course of estate proceedings; and to the Commissioner in the course of her subsequent investigation.
3. From November 2019 onwards, the emails to the Supreme Court were also in breach of an undertaking he had given the Court on 18 October 2019, that in future he would:
   • treat all judicial officers with respect, and refrain from using improper language, sarcasm or tone in his communications to the Court; and
   • accept the authority of judicial officers to give directions about the conduct of legal proceedings in matters that they are hearing, and to follow such directions.
4. Mr O'Brien admitted the allegations, and I made findings that he had engaged in four instances of conduct constituting professional misconduct, under either or both of s 297 and 298 of the Uniform Law.

1. In J22/2022, on 9 August 2024, I found Mr O'Brien guilty of 22 charges[4] relating to his conduct between 2017 and 2021.
2. I found his conduct to be misconduct at common law in relation to six of those charges; professional misconduct[5] in relation to eight charges; and unsatisfactory professional conduct in relation to eight charges.
3. In numerous, concerning respects he engaged in conduct justifying a finding that he was not a fit and proper person to engage in legal practice.
4. In December 2021, Mr O'Brien acknowledged to the Commissioner that he should not continue in practice and undertook to retire.
5. As I said in the liability decision, he was right to do so, and it is unfortunate that he did not do so sooner.
6. His conduct the subject of J22/2022 included but was not limited to:
   • conduct between 2017 and 2019[6] in relation to:
     • an elderly woman, M, while she was in hospital in 2017, including a highly problematic will and subsequent codicil he drafted without instructions;[7] obtained her signature on both in circumstances where testamentary capacity was in doubt; and witnessed despite receiving a benefit under the documents; and
     • her family members after she died and in relation to her estate. The conduct included retaliatory threats made to a family member who complained about his conduct to the Commissioner; charging the estate improperly; and unilaterally drafting and proposing a deed of family arrangement ('Deed') under which he received 15% of M's estate;
   • offensive, vitriolic, and in some cases disgraceful email communications to the Commissioner in the course of the investigation of his conduct in relation to M, and to others, which included threats to 'destroy' a judicial officer, and a threat directed against the members of the Board of Examiners; and
   • false statements to VCAT in the guardianship application he made in relation to M; to a bank in relation to a deceased account (about whether M made a will); and to the Commissioner in the course of her investigation.
7. At [496] of the liability decision I observed:

Notably, no-one who has thwarted Mr O'Brien, in his judgment, escapes the vitriol: judges, registrars, a VCAT member, the Commissioner, her staff, STL [State Trustees Limited], the person who complained about him to the Commissioner, and for no obvious reason, the Board of Examiners.

1. Mr O'Brien admitted the charges in relation to his email and other communications and has expressed shame and remorse about his correspondence generally.
2. This was to his credit. Unfortunately, as referred to later, he has not been able to restrain himself from sending further offensive emails to the Commissioner in the period between the liability decision and this decision on penalty, one of which contained an outrageous accusation against the Commissioner and the Supreme Court.
3. In contrast, at all times, including at the hearing before me, Mr O'Brien has remained defiant about his conduct in relation M and her estate, which he sought to justify and defend.
4. He insisted that:
   • M had testamentary capacity, despite compelling evidence to the contrary that ought to have put him on notice of the issue and paused his plan for her to sign the will (that he should not have drafted in the first place);[8]
   • he was in the best position to judge her testamentary capacity, despite neuropsychological assessment of M to the contrary, and the evidence of audio recordings he made of his hospital visits with M. (He believed that they demonstrated M's capacity and confirmed his judgment - they did the opposite);
   • in drafting the will and codicil without instructions he was acting in M's best interests (and that he pressured her to sign the will and codicil because he knew it was in her interests); and
   • in unilaterally drafting the Deed and pressuring family members to sign it, despite it conferring on him a share of M's estate just short of $300,000, he was carrying out her (undocumented) wishes, as her friend.
5. I concluded, at [527]-[528] of the liability decision that:

Whether or not Mr O'Brien believed he was compelled to the action he took by an altruistic desire to carry out M's wishes, his views of what was appropriate conduct and his actions, were inconsistent with being a fit and proper person to engage in legal practice.

And his altruism would have been more convincing, if his determined actions had not resulted in him receiving a significant share of M's estate.

1. Following those findings, the Commissioner filed extensive written submissions.
2. There were then some delays in progressing the matter.
3. Mr O'Brien, who suffers from a range of health conditions, had several hospital stays after the Commissioner provided her submissions. One of those stays required adjournment of a three day hearing that had been listed in April this year, because he was an inpatient awaiting transfer to a specialist mental health unit.
4. The Commissioner opposed the requested adjournment.
5. In my view, based on letters received from his treating and other physicians, the circumstances and his condition prevented him from participating in a hearing. Further, in light of the orders sought by the Commissioner, it was important that Mr O'Brien be given a fair opportunity to respond.
6. Among other orders, the Commissioner was asking for a recommendation to the Supreme Court that Mr O'Brien's name be removed from the roll of practitioners - also referred to as being 'struck off'.
7. The Commissioner was also asking for an unprecedented order in disciplinary proceedings under the Uniform Law, that Mr O'Brien pay almost $300,000 to third parties who were neither clients of Mr O'Brien, nor complainants, and did not represent M's estate.
8. This was not a request that monies be paid to the legal representative for the estate - the administrator did not wish to make such a claim and declined to be involved in the proceedings.
9. The Commissioner asked instead that the Tribunal order Mr O'Brien to pay the monies to two of M's family members, Margaret and Dorothy,[9] two nieces who each received a 10% share of M's estate under the Deed, drafted by Mr O'Brien and ultimately signed by all parties to it.
10. But for the Deed, or some other agreed solution, the estate would have been distributed under intestacy principles, to M's two nieces and two nephews, with each receiving 25%. After all parties signed the Deed, the administrator (one of M's nephews) distributed the estate in accordance with the terms of the Deed.
11. As acknowledged by the Commissioner, the orders sought did not meet the requirements of compensation orders under the Uniform Law.[10] In particular, the two nieces were not complainants; nor were they clients of Mr O'Brien; in any event a request for compensation was not made at the required time;[11] and the amount sought was beyond the cap of $25,000.[12]
12. The Commissioner's submission was that the order could be made under the discretion in s 302(1) for the Tribunal to 'make any orders that it thinks fit...'; and that under that 'broad discretion' the order could be made as 'a form of restitution'. I come back to the application for the order later.
13. Mr O'Brien was originally required to file and serve written submissions and confirm the number of witnesses he wished to call by 21 January 2025.[13] He did not do so.
14. That date was extended twice.
15. While Mr O'Brien did not, in the end, file formal submissions addressing all of the matters referred to in the Commissioner's extensive submissions, he has sent emails putting his position in several respects, which I set out later.
16. I was satisfied he understood the findings,[14] and understood what the Commissioner was asking for as penalty orders.
17. Ultimately both parties agreed that I make this decision on the papers, without a hearing.
18. I turn next to the orders that the Tribunal may make.

ORDERS THAT MAY BE MADE BY WAY OF DETERMINATIONS

1. Section 302(1) and (2) set out the orders the Tribunal may make.[15] They provide:

302 Determination by designated tribunal - disciplinary matters

(1) If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, the designated tribunal finds that the lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the designated tribunal may make any orders that it thinks fit, including any of the orders that a local regulatory authority can make under section 299 in relation to a lawyer and any one or more of the following -

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

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

(c) an order that the lawyer's practice be managed for a specified period in a specified way or subject to specified conditions;

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

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

(f) an order recommending that the name of the lawyer be removed from a roll kept by a Supreme Court, a register of lawyers kept under jurisdictional legislation or the Australian Legal Profession Register;

(g) an order directing that a specified condition be imposed on the Australian practising certificate or Australian registration certificate of the lawyer;

(h) an order directing that the lawyer's Australian practising certificate or Australian registration certificate be suspended for a specified period or cancelled;

(i) an order directing that an Australian practising certificate or Australian registration certificate not be granted to the lawyer before the end of a specified period;

(j) an order that the lawyer not apply for an Australian practising certificate or Australian registration certificate before the end of a specified period;

(k) a compensation order against the lawyer in accordance with Part 5.5;

(l) an order that the lawyer pay a fine of a specified amount not exceeding $100 000 if the lawyer is found guilty of professional misconduct.

(2) Subject to section 303, the designated tribunal may make ancillary or other orders, including -

(a) an order for payment by the lawyer of expenses associated with orders under this section, as assessed or reviewed in or in accordance with the order or as agreed; and

(b) an interlocutory or interim order, including an order of the kind referred to in subsection (1).

1. Section 302(1)(k) refers to compensation orders under Part 5.5.
2. The provisions relating to compensation orders, ss 306-311, provide context to the later discussion of the third-party payment orders sought by the Commissioner. They set out the framework for compensation orders under Part 5.5, and the limits on who can apply, when they must apply, and how much can be ordered.

306 Making of compensation orders

(1) For the purposes of section 290, the designated local regulatory authority may make a compensation order against a respondent lawyer or law practice in accordance with this Part.

(2) For the purposes of section 302, the designated tribunal may make a compensation order against a respondent lawyer in accordance with this Part.

307 Request by complainant for compensation order

(1) A complainant may request -

(a) the designated local regulatory authority; or

(b) the designated tribunal in proceedings under Division 3 of Part 5.4 -

to make a compensation order.

(2) A compensation order may be requested in respect of loss suffered by -

(a) the complainant; or

(b) another person who is a client of the respondent -

(or both) because of the conduct the subject of the complaint. The complainant, or other person, suffering the loss is referred to in this Part as an aggrieved person.

(3) A complainant who makes such a request must describe the loss suffered by the aggrieved person and the relevant circumstances.

(4) A request may be made in the complaint or to the designated local regulatory authority at any time after the complaint is made and before it is disposed of.

(5) However, a request may not be made after proceedings have been initiated in the designated tribunal with respect to the complaint unless the designated tribunal grants the complainant leave to make the request.

308 Nature of compensation orders

(1) A compensation order is an order to compensate the aggrieved person for loss suffered because of conduct that is the subject of a complaint and consists of one or more of the orders referred to in subsections (2), (3) and (4).

(2) A compensation order may include an order that the respondent lawyer or law practice pay to the aggrieved person, by way of monetary compensation for the loss, a specified amount not exceeding -

(a) where the compensation order is made by the designated local regulatory authority - $25 000; or

(b) where the compensation order is made by the designated tribunal - $25 000 or a greater amount agreed to with the consent of both the complainant and the respondent lawyer or law practice.

(3) A compensation order may include an order that the respondent lawyer or law practice cannot recover or must repay the whole or a specified part of the amount charged to the aggrieved person by the lawyer or law practice in respect of specified legal services. An order under this subsection is effective -

(a) to prevent recovery of an amount even if proceedings to recover the amount (or any part of it) have been commenced by or on behalf of the lawyer or law practice; and

(b) to require repayment of an amount even if a court has ordered payment of the amount (or an amount of which it is part) in proceedings brought by or on behalf of the lawyer or law practice.

(4) A compensation order may include an order discharging a lien possessed by the lawyer or law practice in respect of a specified document or class of documents.

(5) A compensation order may specify the person to whom monetary compensation is payable, whether to the aggrieved person or to another person on behalf of the aggrieved person.

Section 311 provides that compensation awarded under this Part does not affect any other remedy available for the loss.

309 Prerequisites for making of compensation orders

(1) Unless the complainant and the respondent lawyer or law practice concerned agree, a compensation order is not to be made unless the designated local regulatory authority or designated tribunal (as the case requires) is satisfied that -

(a) the aggrieved person has suffered loss because of the conduct concerned; and

(b) it is in the interests of justice that the order be made.

(2) A compensation order is not to be made in respect of any loss for which the aggrieved person has received or is entitled to receive -

(a) compensation under an order that has been made by a court; or

(b) compensation paid or payable from a fidelity fund of any jurisdiction, where a relevant claim for payment from that fund has been made or determined.

(3) Subsection (2) does not apply where a fidelity authority is seeking a compensation order under its subrogation to the rights and remedies of a claimant (see section 246).

310 Enforcement of compensation orders

A copy of a compensation order made by the designated local regulatory authority may be filed in a court of competent jurisdiction and the order (so far as it relates to any amount payable under the order) may be enforced as if it were an order of the court.

311 Other remedies not affected

The recovery of compensation awarded under this Part does not affect any other remedy available to an aggrieved person, but any compensation so awarded must be taken into account, and appropriate adjustments made, in any other proceedings by or on behalf of the aggrieved person in respect of the same loss.

1. The VLSC seeks the following orders, as set out in the submissions, at [8]:

(a) the Tribunal recommends to the Supreme Court that the respondent's name be removed from the roll of legal practitioners;

(b) the respondent is reprimanded;

(c) the respondent is prohibited from applying for an Australian practising certificate for a total period of 10 years from the date of these Orders; and

(d) the respondent pay the applicant's costs.

In matter J59/2023:

(a) the respondent be fined $10,000.

In matter J22/2022:

(b) regarding charges 1, 3, 6, 7(a), 7(c), 13 and 15 the respondent be fined $10,000;

(c) regarding charges 20 and 28, the respondent be fined $10,000;

(d) regarding charges 21, 23, and 25, the respondent be fined $10,000;

(e) regarding charges 29 and 31, the respondent be fined $8,000;

(f) regarding charge 35, the respondent be fined $8,000;

(g) within 60 days of the date of these orders, the respondent pay [name], in her capacity as the enduring power of attorney of [Dorothy] into a bank account nominated by [name of attorney], $149,779.89, plus interest at the Victorian cash rate, calculated from 19 November 2019 inclusive to the date these orders are made, for the benefit of [Dorothy]; and

(h) within 60 days of the date of these orders, the Respondent is to pay [Margaret] into a bank account nominated by [her], $149,779.89, plus interest at the Victorian cash rate, calculated from 19 November 2019 inclusive to the date these orders are made.

1. The Commissioner has also sent two 'without prejudice' schedules of costs.
2. For J22/2022, the total costs claimed[16] are $78,558.63, including Counsel's fees of $23,850.00.
3. For J59/2023, although the Commissioner's email gave the total as $4,786.36[17] that is the sub-total for Counsel's fees. The total, on my calculation is $7,150.36.

1. Mr O'Brien has not made any formal submissions as to the orders that might be appropriate, save for the following.
2. Two very recent emails from Mr O'Brien dated 24 September 2025 address two issues - that of costs, and the request for a payment order to the third parties, and provide a general summary of Mr O'Brien's response. Although they were sent after the last deadline, given the health issues he describes, it is appropriate to include them.

Please have these costs taxed. They far exceed the bounds of what is fair and reasonable and [the Commissioner's] careless and extravagant use of Counsel at a rate per hour more than many charge per day is disgraceful. The Commissioner obviously inhabits and embraces a legal world so vastly dissimilar to the one in which I and my contemporaries lived as to be a source of perverse wonderment.

I have been an inpatient at [clinic name] for the past four weeks and was discharged today. The reason for my confinement in that facility and other medical facilities during the last nine months was my physical and mental health conditions which prevented my filing my own submissions or instructing another to do so on my behalf. Notwithstanding the violence of my prosecution by the Legal Services Commissioner and the findings of the Tribunal, I took an oath on 1 May 1973 to demean myself honourably at all times as a legal practitioner and that oath was honoured by me without exception during the forty-eight years that followed. No person knew [M] better than me and she trusted me to carry out her instructions which I did to the best of my ability. I have been publicly disgraced and my health seriously compromised. My public disgrace has caused my estrangement from my family, my school friends of seventy years, my professional colleagues and my social media connections. I apologise to all persons who I may have offended.

I also point out that the persons seeking compensation were warned to obtain legal advice before signing the settlement agreement but apparently chose not to do so. I have nothing further to add.

1. In an earlier email after the liability hearing, on 13 March 2024, he wrote that he had no means to pay any fines imposed by the Tribunal nor would he be able to pay the legal costs the Commissioner had incurred. He said he is dependent on the aged pension and has no property, real or personal.
2. I record here two other emails sent in September 2024 after the liability decision was published, that are relied on by the Commissioner for a submission discussed later, with which I agree, that Mr O'Brien continues to lack insight, and to show lack of restraint in his communications.
3. In an email dated 4 September 2024, in the context of advising the Commissioner that he had been informed that a former client had died by suicide, Mr O'Brien appeared to blame the Commissioner and the Supreme Court for his client's death:

You and the Supreme Court's ignorance of the impact of your authoritarian conduct may not be of interest to either of you but it is of considerable interest to me and I intend to make it of public interest in the fullness of time.

1. In an email dated 26 September 2024 (to VCAT), after the liability decision was published, he referred to 'malicious prosecution' by the Commissioner, 'publicly sullying' his longstanding reputation for honesty and integrity, and 'financially ruining' him. The email ended:

...accordingly, I will take any action whatsoever within my power to ensure she does not escape being publicly damaged and held accountable for the farce she initiated at public expense. ...

1. As submitted for the Commissioner, this email, and an earlier one dated 4 September 2024, are relevant to the question of insight, which I discuss later.
2. To the extent it needs to be repeated here, the contents and conclusions of the liability decision validate the Commissioner's decision (and statutory responsibility) to act on the complaint received in 2017 from one of M's nephews about Mr O'Brien's conduct in respect of M's will; continue the investigation after the nephew withdrew the complaint (following a threat of retaliation from Mr O'Brien); and bring the matters before the Tribunal.
3. I turn next to the legal framework around determinations.

1. The general principles are well established. The objective of any determination is primarily the protection of the public and the maintenance of professional standards in the eyes of the public (protection of the reputation of the profession). The focus of the Tribunal will be on protection, not punishment.[18]
2. As observed by Warren CJ in Legal Services Board v McGrath,[19] the protective power extends:

...beyond protection of the public to include the legal profession as a group, the courts, the justice system and community confidence in the system.

1. Although protection is the focus, any sanctions will necessarily have a punitive effect. As observed by Maxwell P in Quinn v Law Institute of Victoria:[20]

The objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect.

1. Where there is a choice of sanctions, however, the Tribunal will choose that sanction which maximises the protection of the public.[21]
2. With that protective focus in mind, the Tribunal considers a range of factors in determining penalty including:
   • whether the practitioner pleaded guilty or other evidence of contrition or remorse;
   • whether there is a need for specific deterrence (deterring the particular practitioner from re-offending) or general deterrence (deterring other practitioners from engaging in similar conduct);
   • what the protection of the public may require in the particular case;
   • whether there have been other disciplinary findings before or since the conduct in question;
   • evidence of character;
   • evidence of rehabilitation;
   • any delay from the time the investigation started to the end of the Tribunal hearing; and
   • other mitigating factors such as medical or psychological evidence, family circumstances or financial issues.
3. Some of the above factors will overlap. Specific deterrence, for example, requires consideration of the likelihood of the practitioner re-offending, whether because of:
   • a lack of insight into what occurred;
   • a lack of remorse about what occurred;
   • a history of offending conduct as opposed to a one-off explicable departure from otherwise high standards of conduct; or
   • other matters indicating either that a particular sanction is required to deter the practitioner from re-offending or, conversely, that rehabilitation has taken place.
4. General deterrence requires consideration of whether there is a need to signal to other members of the profession that adverse consequences will follow such conduct, and thereby deter them from the same conduct, in the interests of maintaining professional standards and public confidence in the profession.
5. Penalties imposed in other cases may be a useful guide to proportionality and parity is important, but each case necessarily involves a different combination of factors. Each case is different.[22]
6. In Stirling,[23] the Court of Appeal considered the common elements in criminal sentencing and the determination of penalty in disciplinary proceedings. Those common elements include:
   • the importance of denunciation, specific deterrence and community protection;
   • that the Tribunal in formulating an appropriate penalty takes into account all relevant matters, similar to the synthesis undertaking by a sentencing judge; and
   • consideration of mitigating factors such as mental or psychological impairment issues.
7. A reprimand may be appropriate even where more serious sanctions are imposed. A reprimand is a professional rebuke and signals that the conduct is condemned.
8. Suspension, cancellation or a recommendation that a practitioner be removed from the roll come into consideration when there are concerns a person may not be a fit and proper person to be a legal practitioner.
9. If they are judged to be safe to return to practice after a period out of the profession to address specific or general deterrence, then suspension will usually be appropriate.
10. If their unfitness is judged to be current, then cancellation is likely to be appropriate (or if they no longer hold a practising certificate then prohibition from applying for one for a specified period). If they later wish to return to practice, they have the obligation of persuading the regulator that they are no longer unfit.
11. If they are judged to be likely to remain unfit for an indefinite period, then a recommendation that they be removed from the roll is usually appropriate. That order is sought by the Commissioner in this case.

Removing the name of a practitioner from the roll

1. Under s 302(1)(f) of the Uniform Law, the Tribunal may make an order recommending that the name of the respondent lawyer be removed from the roll kept by the Supreme Court of Victoria.
2. If the Tribunal makes that recommendation, the Commissioner then applies to the Supreme Court.
3. Any recommendation of the Tribunal does not, of course, bind the Court. The Court will determine for itself whether it is necessary that the lawyer's name should be removed from the roll, making its own independent assessment.
4. A recommendation by the Tribunal is likely to be appropriate, however, 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.[24]
5. Removal from the roll occurs when the Supreme Court determines that a practitioner is presently and indefinitely unfit to remain on the roll.
6. The High Court considered the meaning of 'fit and proper' in the decision of Hughes and Vale Pty Ltd v New South Wales (No 2):[25]

The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it". When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.

1. In Sobey v Commercial and Private Agents Board,[26] Walters J observed:

The issue whether an appellant has shown himself to be "a fit and proper person" ... is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.

1. In Legal Services Board v McGrath,[27] Warren CJ explained the rationale for a strike off order:

On occasion, the court's inherent power to discipline members of the legal profession has been mistakenly characterised as simply "protective of the public", an approach which may gain undeserved strength from the comments of McHugh J in Rich v Australian Securities and Investments Commission. While the authorities indicate that the disciplinary power in question is entirely protective, that protection extends beyond protection of the public to include the legal profession as a group, the courts, the justice system and community confidence in that system. It is for this reason that striking off may follow where a practitioner's conduct shows "a defect of character incompatible with membership of a self-respecting profession" or where a conviction carries:

such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails.

However, this protective rationale follows, rather than anticipates, the court's inquiry. A practitioner is deemed unfit to remain on the roll; therefore, they pose a direct risk to the public, to the legal fraternity, to the courts, to the system of professional cooperation and trust on which they both depend, and to the administration of justice, not vice versa. The fundamental issue is whether the practitioner in question is fit and proper, or not.

1. In Legal Services Commissioner v Nguyen,[28] Macauley J ordered the removal of Mr Andrew Nguyen's name from the roll, followings findings made at VCAT including that Mr Nguyen had, in the course of disciplinary proceedings against him, made false statements to Judge Lacava, sitting as a Vice-President in the Legal Practice List, and to the Commissioner.[29]
2. In Nguyen, Macauley J observed:[30]

As is apparent from the statements extracted by Bell J, one of the critical facets of being a fit and proper person is the characteristic of honesty.

1. Much will depend on the facts of the case. As McMillan J observed in Horak:[31]

The Court does not demand perfection of practitioners. Nor is it particularly helpful to attempt to draw a defining line between conduct which demonstrates that a practitioner is not a 'fit and proper person' and conduct which does not - the enquiry is a holistic one which depends on undertaking often a difficult exercise of weighing competence, knowledge, and integrity, amongst other factors. A lack of competence and knowledge may be paired with a great deal of honesty, and vice versa. The disciplinary consequences will naturally differ. As always, the result turns on the facts of the particular case.

1. Generally, the Tribunal should impose separate penalties for separate charges. However, where the charged behaviour is constituted by a course of conduct where the facts of the case are so inextricably woven as to make it difficult to meet a clear standard of prescription, a global penalty may be appropriate.
2. In my view global penalties are appropriate in each case with separate penalties in J22/2022 and J59/2023, save that the conduct in both is relevant when considering whether a recommendation to the Supreme Court ought to be made.
3. J59/2023 represents a course of conduct between March 2019 and September 2020 relating to particular estate matters that were in the Supreme Court. The allegations relate to communications with the Court and Court staff,[32] failing to comply with court orders; breach of an undertaking given to the Court (on 12 occasions); and subsequent communications with the Commissioner.
4. The conduct in J59/2023, including the communications with the Commissioner, exhibits some of the same features as some of the conduct in J22/2022.
5. In contrast, however, J22/2022 relates to an extended course of conduct from 2017 to 2021 featuring inextricably interwoven facts, and interrelated allegations, which all essentially arise from Mr O'Brien's improper involvement in and interference with the affairs of M and her estate.

Applying the principles: the relevant considerations in these cases

1. The written submissions from the Commissioner set out in extended detail the conduct covered by individual charges in both cases, and the observations I made in the liability decision about that conduct.
2. I refer to without repeating the content of the liability decision.

1. As submitted by the Commissioner, general deterrence has high importance here, because of the nature, gravity and range of Mr O'Brien's conduct, particularly the multiple instances of conduct warranting findings of misconduct at common law.
2. General deterrence requires that the orders made send a sufficiently clear message to other practitioners that the most serious consequences will follow from such conduct; and reassure the public that such conduct is not tolerated.
3. The disgraceful conduct in relation to M and her estate elevates the importance of protecting the public from similar conduct.
4. Lawyers hold a position of trust in relation to the legal needs of those who are vulnerable.
5. In guardianship and administration matters they play an important role in a system which has, as one of its purposes, protecting those at risk of financial exploitation or abuse.
6. The system requires those around the person at risk - legal practitioners, health practitioners, relatives and others, to act with integrity, focus on the best interests of the person, and disregard their own.
7. Lawyers such as Mr O'Brien, who do not recognise their own conflicts of interest, and do not see that their judgment is defective, endanger that protective purpose.
8. I put to one side his vicious and unwarranted attacks, in his correspondence and published writings, on the VCAT member who conducted the guardianship hearing, relating to M. They show a different kind of defective judgment.
9. The importance of honesty, integrity and knowledge of what is right to do is no less in estate matters. The reputation of the profession suffers when others see lawyers behave as Mr O'Brien did in relation to the will and the codicil, and subsequently in relation to the estate.
10. I repeat my observation in the liability decision that concerned nursing staff at Box Hill Hospital were right to call security when Mr O'Brien was pressuring M to sign the codicil. On Mr O'Brien's audio recording of the visit, staff can be heard clearly expressly escalating concern and finally having to call security.
11. The nephew, Robert, who complained to the Commissioner after M died about issues around the will, rightly identified that there were questions about the will that needed to be investigated.
12. Dorothy's daughter and son-in-law were right to be concerned about Mr O'Brien's conduct in drafting a Deed in which he received a 15% share, and to try to protect Dorothy from signing it.[33]
13. The other broad category of misconduct in this case, that of Mr O'Brien's written communication in a range of contexts, also raises the need for general deterrence.
14. The emails to the Supreme Court, the subject of J59/2023 were, as submitted by the Commissioner, 'wildly inappropriate'. They were, as found, discourteous, gratuitous and in some cases offensive. Those descriptions were also a feature of the various communications the subject of multiple charges in J22/2022.
15. Another aspect of those communications, relevant to general deterrence and potentially to professional education, is worth raising.
16. The dreadful emails Mr O'Brien wrote to the Court, the Commissioner, her staff, members of M's family, and the unlucky recipients at State Trustees Limited; and the consequences for Mr O'Brien in this case, illustrate the importance of legal practitioners being alert to the possibility that they have lost the good judgment and professional restraint needed to continue in practice, and to act in time to step back and out.
17. The Tribunal has seen several cases in recent years where practitioners, towards the end of a long and uneventful career (in disciplinary terms), have destroyed their hard-earned reputation by late in career misconduct.
18. Family members and colleagues (and health practitioners) can sometimes play a careful and respectful role in, essentially, protecting a practitioner who should no longer be in practice from themselves.
19. In Mr O'Brien's case, a family member, who is to be commended, convinced Mr O'Brien that he should not keep practising and that he was no longer fit to do so.

1. Mr O'Brien recognised, in hindsight, how inappropriate his correspondence was, and said he was ashamed of that aspect of his conduct. The consequence of not being able to recognise it earlier, however, is that a practitioner with no other disciplinary history in a long career in the law has, at the end of that career, brought professional disgrace to himself.
2. I agree with the submissions of the Commissioner that Mr O'Brien's insight and restraint remain imperfect.
3. The emails in September 2024 have echoes of earlier arrogant and offensive correspondence, including baseless allegations and gratuitous threats.
4. Mr O'Brien's inclusion of the Supreme Court as a target of blame, in the email referring to the death of a former client, somewhat reduces the credit for his admissions in J59/2023 of the conduct directed at the Court, and his stated remorse for that conduct.
5. A threat to 'publicly damage' the Commissioner for a 'malicious prosecution', shared a thread with earlier threats to 'destroy' the VCAT member who in 2017 had rightly questioned his role in M signing an unusual will Mr O'Brien drafted between the guardianship application he made and the hearing.
6. In contrast to his intermittent insight into inappropriate communications, Mr O'Brien unfortunately demonstrates no insight into what was wrong with his conduct in relation to M and her estate, and no remorse. The liability decision provides several examples of this from the hearing, set out in the Commissioner's submissions.[34]
7. They include that Mr O'Brien remained adamant that M had testamentary capacity and that he was the best judge of that. I found that:

If despite the evidence warranting caution and the absence of any instructions, Mr O'Brien genuinely believed that he had a sufficient basis to proceed straight to preparing a will, then his judgment was impaired and not the judgment of a person of ... fit and proper to engage in legal practice.[35]

1. He remained blind to what I found to be an obvious conflict of interest in drafting a will or codicil for M.[36] I also found that:

He did not seem to understand that his evidence that [in 2016, after M told him in 2016 that she wanted him to benefit] he had 'chastised' her after the fact did not solve the problem.[37]

1. As submitted, being able to identify conflicts between one's own interests and one's client's interests is a fundamental aspect of ethical legal practice.
2. Mr O'Brien also did not seem to be able to see that his carefully preserved audio recordings of his hospital visits[38] did not support the conclusion that M had testamentary capacity and that he had behaved appropriately, and in fact supported the opposite conclusion.[39]
3. From his recent emails, Mr O'Brien appears to continue to hold the firm belief that he was upholding his oath in acting as he did:

Notwithstanding the violence of my prosecution by the Legal Services Commissioner and the findings of the Tribunal, I took an oath on 1 May 1973 to demean myself honourably at all times as a legal practitioner and that oath was honoured by me without exception during the forty-eight years that followed. No person knew [M] better than me and she trusted me to carry out her instructions which I did to the best of my ability.

1. Finally, Mr O'Brien appears to remain oblivious to the havoc and the unwarranted cost he had caused to M's estate after her death, by his actions in drafting and pressuring M to sign a highly problematic will and codicil; pursuing probate in respect of the will; and then drafting and pressuring family members to sign a Deed under which he received a share in the estate.
2. Notwithstanding Mr O'Brien's undertaking to the Commissioner in 2021 that he would retire, and Mr O'Brien's current health issues, specific deterrence nevertheless has some importance here.

1. Mr O'Brien's recognition before the liability hearing that his correspondence was well below professional standards, as were the false statements made to the Commissioner, is to his credit, although he lost some of that credit by correspondence sent after the liability hearing, as noted above.
2. The fact that, until the findings in these two cases, he had no prior disciplinary history is also relevant. Unfortunately, it is also the case that the conduct the subject of these two cases covered a period of around four years, with repeated instances of misconduct.
3. His admission of the charges in J59/2023 is to his credit, and is a mitigating factor, as recognised by the Commissioner; as is his recognition, in late 2021 that he should stop practising.
4. It is to his credit that, after indicating he would not attend, he attended the liability hearing and made himself available for cross-examination.

1. Mr O'Brien has referred to his poor health on several occasions during the VCAT proceedings, and in his correspondence with the Commissioner during the investigation.
2. During the liability hearing, I invited him to provide any relevant medical reports and information.
3. The invitation, objected to by the applicant, came from my observations that, although capable of responding robustly to some aspects of the cross-examination, at times Mr O'Brien had slow or slurred speech and demonstrated some confusion and inattention.
4. Because what I observed may or may not have indicated some underlying cognitive impairment or other condition, I had a concern about the reliability of his evidence, if that were the case.
5. Mr O'Brien provided a series of reports and letters, most of which were historical, indicating a history of heart[40] and other medical issues, and psychological conditions including anxiety disorder.
6. The most recent report, dealing with cognitive and other issues, was dated 8 September 2022, by Dr Lawrence Cher, a neurologist.
7. Dr Cher's letter to Mr O'Brien's GP recorded that Mr O'Brien:

presents with unsteadiness and falls with a history of cognitive impairment, dysarthria [slow or slurred speech] and unsteadiness. There was a history of weight loss and some acute progressive dysfunction.

1. I note Dr Cher had performed a Montreal Cognitive Assessment on which Mr O'Brien scored 25/30. After analysing several aspects of the assessment results, however, Dr Cher observed:

[Mr O'Brien] remains with a moderate dysarthria and a little disinhibited.[41]

1. Dr Cher's observations were consistent with the (layperson) observations I had made at the hearing, which had raised the concern.
2. As I indicated to the parties at the time, the 2022 report was not, however, directed to Mr O'Brien's capacity to understand or participate in the VCAT proceedings. Its purpose and content were directed elsewhere, and it was insufficient to conclude that he did not have that capacity, or that his evidence was unreliable.
3. As I also indicated to the parties, on the question of penalty, however, it remained open to Mr O'Brien or any legal representatives on his behalf, to make any appropriate submissions about his health that were supported by relevant medical evidence.
4. In the meantime, from around late 2024, Mr O'Brien's health, including his psychological health, deteriorated.
5. In April 2025, in relation to his request for an adjournment of the penalty hearing because he was in hospital, the Tribunal received statements from his treating physicians that, during the hospital stay, which was related to an acute kidney injury, he had been diagnosed with major depression by the inpatient psychiatry team and was waiting to be transferred to a specialist unit.
6. The statements recorded that it was the psychiatric team's assessment that he was not suitable to attend any form of hearing at that time due to his mental health.
7. The Commissioner opposed the adjournment, giving the following reasons:

The Applicant is concerned about the significant consumer harm which the Respondent has occasioned and considers that time is of the essence for a hearing to occur so orders dealing with that harm can be made. This is especially important given the age of the Respondent and the advanced age of [the two nieces on whose behalf the Commissioner is seeking third party payment orders]. The Applicant seeks an order either that the Tribunal appoint a litigation guardian for the Respondent for April's hearing[42] or, if the Tribunal prefers, that it simply give leave to the Respondent to be represented by a litigation guardian [at the hearing]

1. I granted the adjournment based on the clear and compelling information from Mr O'Brien's treating physicians that he was in no position to take any steps necessary for the hearing to proceed.
2. Mr O'Brien advised in September this year that he had subsequent inpatient stays in the intervening months and had just been discharged from the Melbourne Clinic.
3. On the evidence, I accept that Mr O'Brien is in poor physical and mental health and has been for some time.
4. A separate question is whether poor mental health may have impacted on his conduct.
5. The Commissioner's written submissions on penalty, filed in December 2024, referred to the question of whether Mr O'Brien's health could be considered as a mitigating factor:[43]

The respondent has stated at various times to the applicant that he is, or at least has been, of poor health. However, the applicant notes that the respondent is in his seventies and that health conditions are not uncommon at that stage of life. Should this matter be relied upon in mitigation, the applicant would expect that appropriate medical documents would need to be provided to the Tribunal and a clear connection be articulated by the respondent between his misconduct and health condition(s) he suffered or suffers.

1. The reference to 'a clear connection' between the misconduct and any health conditions appears to be a reference to the principles in R v Verdins[44] ('Verdins').
2. In Victorian Legal Services Commissioner v OAG,[45] I discussed the application of the Verdins principles in disciplinary penalty cases. A summary of the principles is at [42]-[43] of OAG:

The Court in Verdins identified six ways that mental impairment may be relevant to sentencing, the first five of which are relevant here:

• It may reduce an offender's moral culpability and so affect what is considered to be a just punishment and lessen the need for denunciation.
• It may have a bearing on the kind of sentence that is imposed and the conditions under which it should be served.
• General deterrence may be moderated or eliminated as a consideration depending on the nature and severity of the offender's symptoms, and the effect of their impairment at the time of offending, sentence, or both.
• Specific deterrence may be similarly moderated or eliminated in the same circumstances.
• The existence of an impairment at the time of sentencing, or its reasonably foreseeable reoccurrence, may mean that a specific sentence may weigh more heavily on the offender than it would on a person in normal health.

Importantly, for the Verdins principles to apply, a connection must be established between the relevant mental illness and the offending conduct or proposed sanction. Simply pointing to the existence of a mental illness is insufficient:

[T]he question for the Court is whether the evidence establishes ... that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?[46]

1. Mr O'Brien did not make submissions about the extent to which any health or other conditions had impacted on his conduct.
2. Given the references to 'disinhibition' in medical reports, in both 2011 and 2022, and cognitive impairment in 2022, it is of course possible that some cognitive impairment potentially explains Mr O'Brien's highly disinhibited correspondence[47] over the years covered by the charges.
3. In the absence of appropriate expert evidence, however, there is insufficient evidence for me to conclude that any impaired mental functioning on Mr O'Brien's part had the required connection with the offending conduct, for the Verdins principles to apply.
4. This ought not, of course, prevent recognition that Mr O'Brien is suffering from what appears to be serious mental health and other medical conditions, and to take that into account, as appropriate, on the question of penalty.

1. There is a relevant issue of delay in this case, which is a mitigating factor.
2. In Stirling the Court of Appeal discussed the issue of delay[48] raised by the applicant in that case.[49]
3. As observed by Maxwell P in R v Merrett & Ors:[50]

The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes 'a powerful mitigating factor'. In particular it focusses on issues of rehabilitation and fairness.'

1. The Commissioner first received a complaint about Mr O'Brien's conduct in late 2017. Proceedings were initiated in 2022 and 2023. They came to hearing in early 2024, with further submissions received in April 2024. The liability decision was handed down in August 2024, with corrections made in September 2024, and although the Commissioner complied with the subsequent timetable for penalty submissions, Mr O'Brien was unable to do so.
2. I observe here that complexities were added to the hearing and determination of the charges by issues with the format and content of the pleadings, that I referred to in the liability decision.[51]
3. I agree with the Commissioner, however, that for the most part, the regrettable delay between the events constituting the alleged misconduct and the prosecution and hearing of the allegations, resulted from the complex nature of the investigations, the occurrence of other conduct (the subject of J59/2023), and the breadth of the charges. Mr O'Brien's intermittently inappropriate communications would not have helped.
4. Nevertheless, the time it has taken to come to the end of the investigation and these proceedings has, I accept, taken a toll on Mr O'Brien. I take this into account as a mitigating factor.

1. As noted earlier, Mr O'Brien referred to his financial position in an email dated 13 March 2024, stating that he has no means of paying any fines or costs the Tribunal might order him to pay, and is dependent on the aged pension.
2. I have no independent or objective information about Mr O'Brien's current financial situation, and no information about what happened to the sums he received from M's estate under the Deed, or as costs he charged the estate.

1. Mr O'Brien had said that he would call up to 13 character witnesses to give evidence at the penalty hearing, which was one of the reasons why it was listed in April for three days.
2. No character references or statements have been provided by him.
3. On the basis of the above factors in this case, I turn now to the orders to be made.

Recommendation to the Supreme Court of Victoria that Mr O'Brien's name be struck off the roll? Yes

1. I refer to without repeating the content of the liability decision; the summary of the previous findings at the start of these reasons; and the discussion earlier about:
   • the principles that apply in a decision about whether a person is fit and proper to practise, and
   • those that apply when the Court considers whether to remove a person's name from the roll of practitioners.
2. As noted, 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.
3. I am mindful that Mr O'Brien has no past disciplinary history, unlike other practitioners who have been the subject of such a recommendation.[52]
4. This is nevertheless a case where the recommendation is appropriate, in my view, for the following reasons.
5. When the liability decision as a whole is considered, Mr O'Brien by his conduct demonstrated repeated failures in the 'three things' referred to by the High Court in Hughes and Vale: honesty, ability and knowledge (of what he was required to do, and not do); or, using the language of McMillan J in Horak, 'competence, knowledge and integrity'.
6. His conduct demonstrated a fundamental breach of his professional obligations to the Court,[53] the Tribunal,[54] the Commissioner and her staff, his friend M, M's relatives, and to others in the legal system.
7. He demonstrated and expressed a profound contempt and disregard for people and institutions who have a vital role in the administration of justice and the protection of the public, including the vulnerable.
8. If, in his view, they thwarted him or dared to call him into account, his pattern was to attack, denigrate or threaten.
9. It was conduct which, if tolerated, would bring the legal profession into disrepute.
10. And it was conduct of the kind described by Warren CJ in McGrath:

striking off may follow where a practitioner's conduct shows "a defect of character incompatible with membership of a self-respecting profession"

1. On the question of whether Mr O'Brien is currently not fit and proper, and likely to be so indefinitely, in my view his continuing lack of insight discussed earlier, and the repetition of outrageous communications to the Commissioner, and in respect of the Supreme Court, support the necessary conclusion. There is, unfortunately, a defect of character shown, of the kind described by Warren CJ in McGrath.
2. Further, Mr O'Brien himself admitted some time ago that he was no longer fit to carry on practice, and acknowledged it again in cross-examination, stating that his communications to the Commissioner's office 'show he is no longer a fit person, either physically or mentally to practise law'.
3. I make the recommendation. It will be for the Supreme Court to make its own decision as to whether the step I recommend is needed.

Prohibition from applying for a practising certificate? Yes

1. Mr O'Brien is unlikely to ever be capable of practising law again; has not practised since 2021; and has given an undertaking to retire, effective December 2021.
2. Leaving aside the possibility that he will be struck off the roll, which is a decision for the Supreme Court, it might seem unnecessary in those circumstances to make an order in each case prohibiting him from applying for a practising certificate.
3. In my view, however, the orders sought by the Commissioner[55] are warranted, in the interests of general deterrence, and protection of the standards and reputation of the legal profession.
4. They send the message to others that the conduct found here is likely to be disqualifying conduct if engaged in by a member of the profession, even if it is not conduct warranting the practitioner being struck off.
5. That message is particularly important, in my view, for those in the profession who work in the areas of wills and estates, or who interact with the Tribunal and others involved in the protective work of guardianship, administration and other less formal processes to safeguard the wellbeing and financial security of vulnerable adults.
6. The orders also signal to members of the public who encounter lawyers who engage in conduct such as Mr O'Brien's, that this is not conduct tolerated in the legal profession.

1. A reprimand is clearly warranted in both proceedings. It is more than a 'slap on the wrist' and is a serious matter for a legal practitioner to receive. As Hampel J, Vice President, observed in Victorian Legal Services Commissioner v Hyatt:[56]

A reprimand is a powerful statement to the practitioner of how far below the standard of their profession they have fallen by their misconduct.

1. In each case, the Commissioner sought an order under s 302(1)(l) of the Uniform Law, that Mr O'Brien pay a fine.
2. In J22/2022, the Commissioner sought fines totalling $46,000, attributable to:
   • charges 1, 3, 6, 7(a), 7(c), 25 ($10,000); said to be a sum representing a global penalty for his professional misconduct in respect of M;
   • charges 20 and 28 ($10,000); said to be a global penalty for his professional misconduct in respect of dealings concerning M's relatives and associates;
   • charges 21, 23 and 25 ($10,000); a sum said to represent a global penalty for his professional misconduct with respect to M's estate;
   • charges 29 and 31 ($8,000); said to represent a global penalty for his professional misconduct in respect of his dealings with the Commissioner; and
   • charge 35 ($8,000).
3. In J59/2023, the Commissioner sought a fine of $10,000, said to be a sum representing a global penalty for charges 1, 2, 4 and 6 in that case.
4. As I understand it, no fines are sought in relation to findings of unsatisfactory conduct (charges 4, 8, 10, 11, 16, 17, 18, 26).
5. All of the charges referred to had findings of either professional misconduct or misconduct at common law.
6. Specific deterrence does not, necessarily, require fines to be ordered in proceedings where the Tribunal is making a recommendation that Mr O'Brien's name be struck off the roll, and orders prohibiting him from applying for a practising certificate in any event for a long period. Nor does protection of the public, for the same reasons.
7. There may also be little utility in the orders if Mr O'Brien is right and he has neither the money to pay any fine, nor the property to attach and sell in aid of enforcement. Enforcement in those circumstances would be a decision for the Commissioner to make based on any additional information that becomes available.
8. General deterrence, however, is important in these two cases. Orders for fines serve to signal to others that there will be direct financial consequences for such conduct, in addition to the financial and other consequences of being disqualified from legal practice. This in turn serves the protective purposes of sanctions.
9. A fine is certainly punitive in this case, but in the sense observed by Maxwell P in Quinn v Law Institute of Victoria Limited:

The available sanctions are, by their nature, punitive, and the objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect.[57]

1. For the purposes of general deterrence, I have ordered that Mr O'Brien pay a fine in each case. I have reduced the amounts sought by the Board to reflect the mitigating factors discussed earlier, including the regrettable delay.
2. In J22/2022 it is a global penalty of $25,000 for the conduct that constituted misconduct at common law and professional misconduct.
3. In J59/2023, it is a global penalty of $5,000.
4. In J22/2022, I did not regard it as necessary or desirable to divide the amount into sums representing individual groups of charges, principally because all of those charges represented a related course of conduct, and because of the overlap in charges noted in the liability decision.
5. I stress the fines are not imposed in relation to the lesser charges found to be unsatisfactory professional conduct, mindful of the observations of Senior Member Smithers in Legal Services Commissioner v Telehus,[58] referring in turn to the observations of Ross J in Law Institute of Victoria v Brott:

In Law Institute of Victoria v Brott Judge Ross (as he then was) acknowledged that there is a sense of unreality in imposing separate penalties in relation to less serious counts, where the Tribunal is asked to impose a cancellation of a practising certificate for more serious matters brought at the same time. Similarly here, in relation to some of the charges which are not as serious as others, which would ordinarily attract a modest fine, or a requirement for further CPD or mentoring, no such penalty has been specified, as it would in any event be subsumed by the substantial periods of prohibition of practise which are imposed for the most serious matters.

Orders for payment of monies to Margaret and Dorothy? No

1. The order sought by the Commissioner is that Mr O'Brien pay just under $300,000 to two of M's family members, M's nieces, Margaret and Dorothy.
2. As earlier noted, Margaret and Dorothy were not clients of Mr O'Brien, nor were they complainants under the Uniform Law.
3. Neither represent the estate.
4. They were individuals who, along with seven others, signed the Deed that Mr O'Brien drafted, and once all had signed, received the share of the estate specified in the Deed in the distribution of the estate by the administrator.
5. The amount distributed was $1,968,398.59.
6. Under the Deed, Margaret and Dorothy each received 10% of the estate. Barry and Robert (both nephews of M) received 30% and 25% respectively. Mr O'Brien received 15%, and four friends/neighbours of M received 2.5% each.
7. Under an intestacy Margaret and Dorothy would each have received a 25% share of the estate.
8. They did not make any claim for payment themselves before or during this proceeding. It appears the Commissioner unilaterally proposed the order to them, after the liability decision was published.[59]
9. The administrator does not make a claim seeking payment by Mr O'Brien to the estate, and declined an invitation from the Commissioner to be involved in the penalty hearing.
10. In any event, the Commissioner is not making a request that monies be paid to the legal representative for the estate.
11. Further, as the Commissioner freely acknowledges, the order requested does not meet the requirements for a compensation order under the Uniform Law.
12. Instead, the submissions frame it as 'not compensation' but 'a form of restitution', able to be made under s 302(1), under the words that precede a list of specific orders the tribunal may make:

....the designated tribunal may make any orders it thinks fit, including...

1. In summary, the purpose is said to be to prevent Mr O'Brien from profiting by his misconduct, by requiring him to disgorge the 15% 'windfall' he received under the Deed; and by paying it to the two nieces to put them closer to the position they would have been in but for the Deed (assuming distribution under an intestacy).
2. The payment amount requested for each also includes some legal costs Mr O'Brien charged to the estate, divided in two.
3. In my view, it appears to be a well-intentioned, but, respectfully, misconceived application.
4. For several reasons which I come to later, I am not persuaded it is open to me or, if open, appropriate to make the orders.
5. In short:
   • the orders sought are likely to go beyond the proper scope of the discretion in s 302(1) of the Uniform Law, which is broad but not limitless, and beyond the Tribunal's statutory powers in any event.
   • The limits on the Tribunal's power, under Part 5.5 of the Uniform Law, to make orders that compensate third parties are relevant to whether the orders are open to me, and if open, whether and how the discretion should be exercised.
   • Even if they are open to be made, I am not persuaded in the circumstances that the discretion should be exercised to make them.

1. As I understand it from the submissions,[60] the rationale for the order is as follows:
   • Under an intestacy M's two nieces (Margaret and Dorothy) and two nephews (Barry and Robert) would each have been entitled to an equal share of M's estate.
   • But for the Deed, the estate would have been distributed under intestacy principles, with M's two nieces each receiving 25%.
   • Instead, the estate was distributed in accordance with the terms of the Deed.
   • But for the Deed, Mr O'Brien would not have received a 15% share of the estate.
   • The Tribunal found[61] Mr O'Brien engaged in misconduct at common law in engaging in conduct towards the relatives and associates of M, that the Tribunal was satisfied was oppressive and threatening, and by which he attempted to (and did) obtain a financial benefit.
   • In receiving 15% of the estate Mr O'Brien has profited from his misconduct. 15% of the estate constituted a significant sum, being $292,295.79.
   • He should not profit from his misconduct.
   • But for the Deed, Margaret and Dorothy would each have received 25% of the estate. Instead, they received 10%.
   • Mr O'Brien's misconduct 'therefore' resulted in Margaret and Dorothy forgoing receiving from the estate $292,295.79.[62]
   • The payment would be a form of restitution and would put Margaret and Dorothy closer to the position it was submitted they would have been in had Mr O'Brien not engaged in the misconduct.
   • The Commissioner does not seek an order that Mr O'Brien compensate Margaret and Dorothy for the consequences that flowed from Mr O'Brien misconduct. Rather, it is sought that he be required to account for the windfall which he personally and improperly obtained, at the expense of Margaret and Dorothy, by paying Margaret and Dorothy the relevant amounts.[63]

1. I agree that s 302(1) confers a broad discretion.
2. It provides that the Tribunal may make 'any orders that it thinks fit', including:

any of the orders that a local regulatory authority can make under section 299 in relation to a lawyer and any one or more of the following - ;

1. I agree with the submission[64] that the list of specified orders, following the words in question, is inclusive but not necessarily exhaustive.
2. Reference to the explanatory memorandum for the Legal Profession Uniform Law Application Bill 2013 supports that conclusion:

Section 302 provides, in subsection (1), that where a designated tribunal finds a lawyer guilty of unsatisfactory professional conduct or professional misconduct, it may make such orders as it thinks fit. The subsection provides that the orders that may be made include the orders that a local regulatory authority can make under section 299 and other specific orders. Subsection (2) provides that the tribunal may also make ancillary orders. Subsection (3) provides that a person may be found guilty of unsatisfactory professional conduct even though the complaint or charge alleged professional misconduct.

1. This does not, however, mean that the discretion is exercised in a vacuum, without regard to the broader legislative scheme. As observed by then Deputy President Macnamara in Feaks v Cardinia Shire Council,[65]

High authority tells us that even open discretions have to be exercised by reference to matters that seem appropriately related to the subject matter of the discretion and cannot be exercised on whim or for matters that are entirely irrelevant.[66]

1. I am not suggesting that the payment order sought would or should be granted on a whim. I recognise that the concern of the Commissioner is to require, as a penalty for his misconduct, that Mr O'Brien disgorge his share of the estate;[67] and to provide additional payments to two people who were disadvantaged by the Deed and its terms, compared to the outcome under an intestacy.
2. Even if the listed orders are not exhaustive, however, it is appropriate to have regard to the overall scheme of the Act when exercising a broad discretion.
3. The principle is set out in the observations of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[68]

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute confirming the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the Court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.

1. In deciding whether to make an order that is not in an inclusive (but not necessarily exhaustive) list, it is relevant to consider what is already in the list.
2. The existing limits put on the Tribunal's power to make compensation orders, under Part 5.5, relevantly include:
   • Only a complainant may make the request (s 307(1)(b)).
   • A compensation order may only be requested by a complainant in respect of loss suffered by the complainant or another person who is a client of the lawyer, referred to as an 'aggrieved person' (s 307(2)).
   • A request may not be made after proceedings have been commenced in the Tribunal with respect to the complaint, unless the Tribunal gives the complainant leave to make the request (s 307(5)).
     • I note here I regard this as an important requirement, in procedural fairness terms, so the respondent knows at the outset of the tribunal proceeding what the claim is, and also to ensure that any questions of fact relevant to the request for compensation are before the Tribunal before the evidence is heard or facts determined.
   • A compensation order is an order to compensate the aggrieved person for loss suffered because of conduct that is the subject of a complaint and consists of one or more of the orders referred to in s 308(2), (3), or (4) (s 308(1)).
   • Under s 308(2,) a compensation order may include 'an order that the respondent lawyer or law practice pay to the aggrieved person, by way of monetary compensation for the loss, a specified amount'.
   • Where the order is made by the Tribunal, the amount must not exceed $25,000, unless a greater amount is agreed to with the consent of both the complainant and the respondent.

The relevance of the provisions made for compensation to third parties

1. Here, the fact that the statute already provides for orders compensating specified third parties to the proceedings, for loss suffered by them because of the conduct of a lawyer, is a relevant consideration in determining how broad the discretion might be. And what might be an inappropriate exercise of it.
2. In other words, the Parliament has already considered:
   • what might be an appropriate order for payment to a non-party for loss caused by the conduct of a lawyer;
   • who might have the standing to ask for it from the Tribunal;
   • what should be the limits around such an order; and
   • when such an application should be foreshadowed.[69]
3. This operates, in my view, to put a fence around the penalty orders that can properly be made, where the purpose or effect is to provide compensation to a third party. Section 306(2) supports this view:

For the purposes of section 302, the designated tribunal may make a compensation order against a respondent lawyer in accordance with this Part.

1. As an illustration, the fact that s 302(1)(l) provides that the Tribunal may order the lawyer to pay a fine of a specified amount not exceeding $100,000, would put a limit on the amount that may be awarded by way of a fine. Notwithstanding the power to make 'any order the designated tribunal thinks fit', the Tribunal would likely be in error if it ordered a fine of, say $200,000.
2. In my view, the decision already made by Parliament as to when the Tribunal may make an order for payment by a respondent lawyer to a third party to the disciplinary proceeding, is a relevant consideration when determining the scope of the discretion in s 302(1). It supports the conclusion that the requested order is beyond the scope of the discretion.
3. I appreciate that the Commissioner's submission is that that the orders sought are not compensation orders, and so the limits in Part 5.5 do not apply.
4. I turn next to the question of whether, in fact, this is a request for compensation, that fails the requirements of Part 5.5.

1. The Commissioner's submissions seek to distinguish the present application from the order made by Senior Member Smithers in VLSC v Flitner[70]. In that case, among other orders, Mr Flitner was ordered to pay $5,000 to his client for its costs arising out of a default judgment, which occurred through Mr Flitner's failure to advise his client of the date of hearing.
2. Victorian Legal Services Commissioner v Burgess[71] is given as another example of a compensation order. In that case, the solicitor was ordered to pay $8,666.67 in compensation to his client, in relation to loss he caused his client in a proceeding in which he swore and filed a misleading affidavit with the Supreme Court of Victoria.
3. The submission at [145] is:

Here, it is not sought that the respondent compensate Margaret and Dorothy from the consequences that flowed from his misconduct. Rather, it is sought that he be required to account for the windfall which he personally and improperly obtained, at the expense of Margaret and Dorothy, by paying Margaret and Dorothy the relevant amounts. This would have the effect of him no longer having the benefit of the improperly obtained monies, which would be an appropriate means of general deterrence, by demonstrating to members of the profession that should they be minded, in connection with the practice of law, to enrich themselves unjustly at the expense of vulnerable and elderly members of the public, they will be made accountable for that money, and will not be able to enjoy the benefit of that enrichment indefinitely.

The payments would place Margaret and Dorothy closer to the position they would have been in had the respondent not engaged in misconduct.

1. There are two parts to the purpose outlined.
2. The first is to require Mr O'Brien to give up an inappropriately obtained 'windfall', as a penalty that serves general deterrence.
3. The second is to require him to pay the amount of the windfall directly to Margaret and Dorothy. By doing so, the purpose is to:

place Margaret and Dorothy closer to the position they would have been in had the respondent not engaged in misconduct

1. In my view, the second part of the stated purpose is to compensate them because they were worse off under the Deed than they would have been under an intestacy distribution.
2. On that view it is, in intention or effect, an application for an order to compensate Margaret and Dorothy for loss alleged to be suffered because of the conduct of Mr O'Brien.
3. It does not meet the requirements of Part 5.5 and for that reason alone should be refused.
4. A separate issue arises from the fact that, while part of the purpose is said to be that Mr O'Brien give up the 15% share of the estate he obtained, payment to the estate is not sought.

Why payment to Margaret and Dorothy and not the estate?

1. The question of why Mr O'Brien should be ordered to pay the two nieces and not the estate itself, is a heading in the submissions, but not one satisfactorily answered in the paragraphs that follow the heading, in my view.[72]
2. If there were any entitlement to claim against Mr O'Brien for monetary loss (whether in law or equity) arising from his conduct in relation to the estate, it would ordinarily be for the legal representative of the estate to make that claim. And, ordinarily, any amount awarded would be directed to be paid to the estate.[73]
3. In the VCAT cases involving deceased estates referred to in the submissions,[74] which were primarily to do with executor's commission wrongly claimed by a solicitor/executor, the Tribunal ordered that the payment be made to the estate.
4. Here, payment is sought on behalf of two people who did not make any claim themselves, would not appear to have standing to otherwise bring a claim against Mr O'Brien in the Tribunal's general civil jurisdiction, because they were not clients of Mr O'Brien, or otherwise in a sufficiently direct relationship with him; and would not have standing to make a claim for compensation under Part 5.5 of the National Law.
5. As I understand it,[75] the rationale for asking that the money not be paid to the estate is:
   • Mr O'Brien's conduct did not affect Robert's position - he obtained 25%;
   • Barry received 30%, 5% more than he would have received under an intestacy;
   • Four others received a 2.5% share, a benefit they would not have obtained under an intestacy; and
   • Therefore, Mr O'Brien's conduct was solely to the detriment of Margaret and Dorothy.
6. I am not persuaded that the rationale leads to the contended conclusion; and the rationale for not asking for payment to the estate exposes another problem, in my respectful view, with the Commissioner's application.
7. In circumstances where the administrator has declined to seek orders that Mr O'Brien pay monies to the estate, the Commissioner is effectively asking the Tribunal to step in and undertake a de facto partial redistribution of an estate that has already been distributed under a signed Deed, and not by paying monies to the estate.
8. This is not a role the Tribunal in this jurisdiction should play, and in my view is itself a reason to decline to make the orders.
9. Of course, one of the reasons for not asking for payment to the estate may be that the administrator of the estate, Barry, did not wish to make that application or otherwise be involved in these proceedings.
10. It is apparent from the affidavit of Mr Watts, senior lawyer at the Commissioner's office,[76] that Mr Watts wrote to Barry's solicitor,[77] asking that the liability decision be drawn to his client's attention.
11. The letter referred to the possible loss suffered by the estate by Mr O'Brien's conduct, and stated that one possible penalty was that Mr O'Brien be ordered to reimburse the estate for some of the money he received.
12. Mr Watts asked to be informed if Barry as administrator sought that Mr O'Brien reimburse the estate for the payments received by him; and if he wished to provide a witness statement in respect of the penalty to be imposed.
13. The administrator's solicitor in reply, after referring to the health issues of Barry and his wife, replied:

I am instructed my client does not wish to make representations to the Tribunal or be involved in the proceedings. He will accept whatever decision is ultimately made and carry out his duties as Administrator should funds be paid into the estate.

1. Mr Watts wrote again to Barry's solicitor (and subsequently to Barry) advising that the Commissioner now proposed to seek orders that Mr O'Brien reimburse the sum of $299,559.78 by paying $149,779.89 to each of Margaret and Dorothy, and asking whether he had a view. No reply was received.
2. I pause here to say that, despite the problems with the proposed orders, no criticism is made of Mr Watts who, given the orders proposed, has properly advised the administrator (as well as Robert's widow) and sought their views.
3. Nor is any criticism made of any of the relatives who either agreed or declined to give evidence in support of the proposed payment orders. Margaret, and Dorothy's daughter (on her behalf[78]) understandably welcomed the proposed idea of a further payment. Robert's widow found the inquiry stressful and did not want to be involved. Barry's solicitor referred to health issues for Barry and his wife.
4. One further issue arises, relevant to the question of whether the proposed orders may exceed the scope of the discretion in s 302(1). It is not determinative but illustrates a further difficulty with stretching the discretion in s 302(1) to encompass the orders sought.

1. I appreciate that the Commissioner's request is put as a payment order the Tribunal can and should make under the discretion in s 302(1) to make 'any orders the designated tribunal thinks fit'.
2. The nature of the order sought and its purpose in respect of Margaret and Dorothy raise an issue, however, of whether it operates as some form of equitable remedy. The references to restitution and unjust enrichment, suggest it may be so intended. The issue is potentially relevant to the intended scope and limits of the discretion in s 302(1).
3. As referred to above, payment is sought on behalf of two people who could probably not bring a claim against Mr O'Brien in the Tribunal's civil jurisdiction, and could not make a claim for compensation under Part 5.5 of the National Law.
4. Without speculating what any cause of action might be, it is possible that there is an application that could be made to the Supreme Court in its inherent jurisdiction, by someone with standing to do so.
5. Whether the Tribunal could properly make such an order under the Uniform Law, as a decision on penalty, is another question.
6. If what is sought is in the nature of equitable relief, then in determining what might be the proper limits of the discretion in s 302(1), it is a relevant consideration that VCAT has no general equitable jurisdiction. It is a 'creature of statute', although it is always open to Parliament, to the extent seen fit, to 'clothe VCAT' with the power to recognise and apply equitable doctrines and remedies.[79]
7. It is unlikely, in my view, that s 302(1) is enough to give VCAT power to make otherwise unspecified orders, for remedies in the nature of restitution, to non-parties who do not otherwise have standing under Part 5.5.
8. In any event, I return to the problem identified above: if a payment order were available, and assuming causation and standing could be established, why would any payment order not be paid to the estate.
9. As the submissions note, VCAT has made orders that monies be repaid by solicitors to a deceased estate, although neither of the three cases referred to[80] relate to similar conduct. Relevantly, in all three cases, the money was to be paid to the estate.
10. In Maguire and Barlow, the joint executors of a will were ordered by Senior Member Butcher to repay to the estate $120,000 in executor's commission they had no basis to receive. Both cases were brought under the previous legislation.[81] Brief reasons were given, and it is not clear under what provision the orders were made.
11. The reasons given note however that in Maguire[82] the respondent advised the Commissioner that he did not intend to appear at the hearing or oppose the orders sought. In Barlow, the respondent represented himself and did not dispute the alleged facts. (The reasons record that his only defence was 'that he said he believed that [the testator] would have wanted him to have the money'[83]).
12. Rhoden, a decision under the current legislation, concerned executor's commission breaches and related conduct. In Rhoden, as submitted, Senior Member Butcher ordered the solicitor 'to make restitution payments' to eight different estates, totalling $300,000. The submissions omit the information, however, that the payment orders were made with the agreement of the respondent.[84]

1. I am not persuaded that the payment orders sought are open under the discretion given in s 302(1), or appropriate, for the reasons discussed.
2. In summary, if, as I conclude, the order sought is essentially a compensation order, it fails the requirements of Part 5.5.
3. The limits in Part 5.5 are, in any event, relevant to whether it is appropriate to exercise any discretion to make the orders sought, and weigh against making such an order.
4. Even if it is available, I would decline to make the orders for several reasons:
   • It is a problematic claim in legal terms, and apart from referring to restitution, a clear cause of action has not been articulated entitling Margaret and Dorothy to directly claim repayment from Mr O'Brien.
   • While there might be a claim (not articulated) that Margaret or Dorothy could make in a Court, there would not appear to be any claim that could be made at the Tribunal entitling them to recover any loss established.
   • While there might be a claim the estate could make for loss suffered by the estate, the administrator has declined to make such a claim either at the Tribunal or in a court. (There might in any event be issues of causation given that the estate was distributed in accordance with a Deed all signed. Mr O'Brien's argument that he advised all to obtain independent legal advice might in that respect be relevant.)
   • No claim for loss had previously been made or intimated by or on behalf of Margaret or Dorothy (or the estate) before these proceedings commenced, which might have allowed for any loss to be evaluated in the investigation and notice given to Mr O'Brien to enable him to respond, and no request for the payment orders was made until after the hearing on the facts concluded.

1. Section 303(1) of the Uniform Law applies here and provides:

The designated tribunal must make orders requiring a lawyer whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the designated local regulatory authority and the complainant), unless the designated tribunal is satisfied that exceptional circumstances exist.

1. While this was a complex and, in some ways an exceptional case, there are no exceptional circumstances for the purposes of s 303(1) and an order for costs will be made.
2. Under s 303(5):

An order for costs -

(a) may be for a specified amount; or

(b) may be for an unspecified amount but must specify the basis on which the amount is to be determined.

1. The Commissioner has provided 'without prejudice' schedules of costs in both cases.
2. Mr O'Brien has raised concerns about the reasonableness of the costs included, in particular counsel's fees. He has asked that the costs be taxed (now referred to as assessment by the Costs Court).
3. In the liability decision in J22/2022,[85] I raised concerns about the undue complexity in the pleadings and arrangement of materials. This factor may or may not have impacted on the time spent and claimed.
4. In the circumstances, in default of agreement, it is appropriate that an independent assessment be made of the Commissioner's costs. I nevertheless encourage Mr O'Brien to engage someone on his behalf to review the costs claimed and for the parties to explore a negotiated outcome.

Charge 1 - making false statements in a VCAT guardianship application

Professional misconduct within the meaning of section 298(b) of the Legal Profession Uniform Law (Uniform Law) (breach of rule 4.1.2 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (Uniform Rules)).

Charge 3 (alternative to charge 2) - drafting a will in circumstances where the testator might lack testamentary capacity

Misconduct at common law within the inclusive definition of professional misconduct in section 297(1) of the Uniform Law, being conduct occurring in connection with the practice of law and which, taken with regard to any other relevant matters, would justify a finding that the Respondent is not a fit and proper person to engage in legal practice (misconduct at common law).

Charge 4 - failing to comply with a written undertaking in the guardianship application

Unsatisfactory professional conduct within the meaning of section 296 of the Uniform Law.

Charge 6 (alternative to charge 5) - drafting a codicil in circumstances where the testator might lack testamentary capacity

Charge 7 (a) and (c) - drafting the will and codicil where conflict of interest

Professional misconduct within the meaning of section 297(1)(a) of the Uniform Law and within the meaning of section 298(b) of the Uniform Law, ( breach of rule 12 of the Uniform Rules).

Charge 8 - drafting and having the testator sign the will when uncertain as to the will's legal effect and validity

Unsatisfactory professional conduct within the meaning of section 296 of the Uniform Law.

Charge 10 - failing to inform the testator before she signed of his entitlement to claim executor commission, charge legal costs for administration of the estate, and her option of appointing an executor who might not claim commission

Unsatisfactory professional conduct within the meaning of section 296 of the Uniform Law.

Charge 11 - failing to advise the testator of desirability of seeking independent legal advice before signing the will and codicil

Unsatisfactory professional conduct within the meaning of section 296 of the Uniform Law.

Charge 13 (alternative to charge 12) - witnessing the will in the specified circumstances

Charge 15 (alternative to 14) - witnessing the codicil in the specified circumstances

Charge 16 - failing to give an accurate report about the guardianship hearing

Unsatisfactory professional conduct within the meaning of section 296 of the Uniform Law.

Charge 17 - making submissions at the guardianship hearing without instructions to do so

Unsatisfactory professional conduct within the meaning of section 296 of the Uniform Law.

Charge 18 - inappropriate, discourteous, gratuitous and offensive communications with State Trustees Limited

Unsatisfactory professional conduct within the meaning of section 298(b) of the Uniform Law, (breach of rule 4.1.2 of the Uniform Rules).

Charge 20 (alternative to charge 19) - conduct towards the relatives and associates of the deceased

Charge 21 (alternative to 22) - knowingly making a false statement to a bank that the deceased did not leave a will

Professional misconduct within the meaning of section 298(b) of the Uniform Law, (breach of rule 4.1.2 of the Uniform Rules).

Charge 23 (alternative to charge 24) - charging estate costs where no instructions received to act and will unproven and obtaining reimbursement for expenses already reimbursed

Professional misconduct within the meaning of section 297(1)(a) of the Uniform Law.

Charge 25 - directing sale's agent to pay deposit on sale of deceased's home into his trust account without instructions or authority

Professional misconduct within the meaning of section 297(1)(a) of the Uniform Law.

Charge 26 - email in breach of rule 5.1[86]

Unsatisfactory professional conduct within the meaning of section 296 of the Uniform Law, and section 298(b) of the Uniform Law (breach of rule 5.1 of the Uniform Rules).

Charge 28 - (alternative to charge 27) threats made in retaliation for a complaint to the VLSC

Charge 29 - communications with the VLSC justifying finding that not fit and proper to engage in legal practice

Professional misconduct within the meaning of section 297(1)(b).

Charge 31 (alternative to Charge 32) - false statements to regulator

Professional misconduct under s 298(b) (breach of rule 43.1).

Charge 35 - written statements demonstrating disrespect and contempt towards the legal profession, its members, and institutions

Professional misconduct within the meaning of section 297(1)(b).

The Respondent engaged in professional misconduct within the meaning of:

a) section 297(1)(b) of the Legal Profession Uniform Law (Victoria),[87] (Uniform Law) being conduct occurring in connection with the practice of law that would, if established, justify a finding that the Respondent is not a fit and proper person to engage in legal practice; and

b) section 298(b) of the Uniform Law, in that the Respondent contravened:

1. rule 3 of the of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (Rules) by failing to observe his paramount duty to the court and the administration of justice;
2. rule 4.1.2 of the Rules by failing to be courteous in all dealings in the course of legal practice; and
3. rule 5.1 of the Rules by engaging in conduct which demonstrates that the Respondent is not a fit and proper person to practise law, or which was likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice, or bring the profession into disrepute;

by sending emails to the Supreme Court of Victoria (Court) which were inappropriate, discourteous, gratuitous, and/or offensive.

The Respondent engaged in professional misconduct within the meaning of:

a) section 297(1)(b) of the Uniform Law, being conduct occurring in connection with the practice of law that would, if established, justify a finding that the Respondent is not a fit and proper person to engage in legal practice; and

b) section 298(b) of the Uniform Law, in that the Respondent contravened:

1. rule 3 of the of the Rules by failing to observe his paramount duty to the court and the administration of justice; and ·
2. rule 4.1.3 of the Rules by failing to deliver legal services competently, diligently and as promptly as reasonably possible;

by failing to comply in a timely manner, and/or at all, with Court orders, requirements and/or requests.

The Respondent engaged in professional misconduct within the meaning of:

a) section 297(1)(b) of the Uniform Law, being conduct occurring in connection with the practice of law that would, if established, justify a finding that the Respondent is not a fit and proper person to engage in legal practice; and

b) section 298(b) of the Uniform Law, in that the Respondent contravened rule 6.1 of the Rules;

by failing to honour an undertaking that he made to the Court on 18 October 2019 in the course of legal practice.

The Respondent engaged in professional misconduct within the meaning of:

a) section 297(1)(b) of the Uniform Law, being conduct occurring in connection with the practice of law that would, if established, justify a finding that the Respondent is not a fit and proper person to engage in legal practice; and

b) section 298(b) of the Uniform Law, in that the Respondent contravened rule 4.1.2 and/or rule 5.1 of the Rules

by sending emails to the Applicant's office on 19 May 2021 and 4 June 2021 that were inappropriate, discourteous, gratuitous, and/or offensive.

[1] The Legal Profession Uniform Law is set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic) (Application Act). Under section 4 of the Application Act, it is referred to as the Legal Profession Uniform Law (Victoria).

[2] (Corrected) [2024] VCAT 756 ('liability decision'). https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2024/756.html

[3] The decision was made and short reasons given at the start of the hearing in both matters, on 23 January 2024.

[4] Including one charge, charge 7, where I found him guilty of parts (a) and (c) but not (b).

[5] Under either or both of ss 297 and 298 of the Uniform Law.

[6] The chronological background to the charges relating to M and her estate is set out at [17]-[63] of the liability decision. A summary of my findings is at [506]-[528].

[7] And which was ultimately rejected by the Deputy Registrar of Probates, who was not satisfied the deceased had testamentary capacity and considered it unsafe to grant probate.

[8] I found that if, in fact, he believed M had testamentary capacity, his judgement in that (and other matters) was deeply flawed.

[9] As in the liability decision, first names are used to protect the privacy of M's family.

[10] Section 302(1)(k) refers to compensation orders as an order the Tribunal may make. Sections 306 to 309, set out later, describe the limits.

[11] Section 306(5): 'However a request may not be made after proceedings have been initiated in the designated tribunal with respect to the complaint unless the designated tribunal grants the complainant leave to make the request.'

[12] The Tribunal may award a greater amount agreed to with the consent of both the complainant and the respondent lawyer. Section 308(2).

[13] Mr O'Brien had originally signalled an intention to call 13 character witnesses.

[14] In August 2024, Mr O'Brien wrote 'due to ill health, I have not yet read the whole decision, but I do not doubt it is balanced and fair and addresses all the matters I raised in my defence'.

[15] Costs are separately the subject of s 303.

[18] See the observations in Hannebery v Legal Ombudsman [1998] VSCA 142 at [22] (Tadgell JA with Phillips and Chernov JJA agreeing). Also, Stirling v Legal Services Commissioner [2013] VSCA 374 ('Stirling').

[19] [2010] VSC 266 ('McGrath').

[20] [2007] VSCA 122 at [30].

[21] [2007] VSCA 122 at [31].

[22] Victorian Legal Services Commissioner v OAG [2021] VCAT 549, [37].

[24] Legal Services Commissioner v Horak [2014] VCAT 539 [29]-[32].

[25] [1955] HCA 28, 93 CLR 127 ('Hughes and Vale'). Referred to in Victorian Legal Services Commission v Horak [2016] VSC 780 ('Horak'), per McMillan J.

[26] (1979) 22 SASR 70, 76 (citation omitted).

[27] [2010] VSC 332; (2010) 29 VR 325 ('McGrath') 329 [10]-[11].

[28] [2013] VSC 443 ('Nguyen').

[29] Legal Services Commissioner v Nguyen [2013] VCAT 345, SM Smithers.

[30] At [27], referring to the principles (at [25]-[26] collected and summarised by Bell J in Legal Services Board v Rushford [2012] VSC 632.

[32] Including the Assistant Registrar of Probates/Deputy Prothonotary; Judicial Registrar Englefield, a Senior Lawyer and member of staff; the chambers of Justice McMillan;

[33] As indicated in the liability decision, Dorothy was at the time experiencing cognitive issues. Dorothy's daughter and son in law resisted the pressure from Mr O'Brien for her to sign the Deed. The operative pressure ultimately came from family members who wanted the Deed signed and the estate distributed, including a family member who visited Dorothy and obtained her signature.

[38] He paid $3,500 to have the audio enhanced, a charge which, outrageously, he passed on to the estate.

[39] Liability decision at [184] in relation to the May 2017 visit (before drafting the will); at [237]-[242] in relation to the 'will visit' in June 2017; and at [279]-[290] in relation to the 'codicil visit' in August 2017.

[40] I note he referred to 'existing heart problems' in correspondence with the Commissioner in 2019, referred to in the liability decision at [482].

[41] An earlier report, in 2011, from a consultant psychiatrist to his GP, had also referred to 'a little' disinhibition and slurring.

[44] [2007] VSCA 102; (2007) 16 VR 269.

[45] Victorian Legal Services Commissioner v OAG (Corrected) [2021] VCAT 549 ('OAG') at [39]-[43].

[46] Carroll v The Queen [2011] VSCA 150 at [20].

[47] This is a descriptive not a clinical observation.

[48] [2013] VSCA 374 at [127]- [128]. See also the comments of Maxwell P in R v Merrett & Ors [2007] VSCA 1; (2007) 14 VR 392, referred to in Stirling at [121] as having been relied on by the applicant. Maxwell P observed: 'The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes 'a powerful mitigating factor'. In particular it focusses on issues of rehabilitation and fairness.'

[49] See also R v Talia [2009] VSCA 260 at [22] on the relevance of delay as a mitigating factor.

[50] [2007] VSCA 1; (2007) 14 VR 392, referred to in Stirling at [121] as having been relied on by the applicant.

[52] For example, Mr Horak, and Mr Telehus in Legal Services Commissioner v Telehus [2014] VCAT 24.

[53] Referring to the conduct the subject of J59/2023.

[54] In its guardianship and administration jurisdiction.

[55] In J22/2022, 10 years; and in J59/2023, 5 years.

[56] [2018] VCAT 1498 at [28].

[57] [2007] VSCA 122 at [30].

[58] [2014] VCAT 24, citing Law Institute of Victoria v Brott [2008] VCAT 1998 ('LIV v Brott') at [48]-[51]. This is a related case to the one the Commissioner's submissions referred to at [15], the correct citation for which is Legal Services Commissioner v Brott [2008] VCAT 2399.

[59] Based on a) the witness statements of one niece, and of the other niece's daughter who jointly holds her power of attorney. Both statements were made after the deponents were shown documents from the tribunal book and paragraphs of the liability decision were drawn to their attention; and b) the witness statement of Martin Watts and exhibits.

[61] Charge 20 proved. Liability decision [314]-[373].

[62] It is put by the Commissioner's submissions as a 'but for' proposition - had Mr O'Brien not proposed the Deed, Margaret and Dorothy would each have received 15% more of the estate. Strictly, both were in a different position than they would have been under an intestacy as a direct result of both of them, and all the other beneficiaries, signing the Deed.

[65] [2010] VCAT 1436.

[66] I am not suggesting that the payment order sought, would or should be granted on a whim. I recognise that the concern of the Commissioner is to provide payment to two people who were disadvantaged by the Deed and its terms, and to require, as a penalty for his misconduct, that he disgorge.

[67] I return later to the question of why payment would not be made to the estate.

[68] [1985-1986] 162 CLR 24 at 40, paragraph (b) per Mason J.

[69] Here, no claim for loss had previously been made or intimated by or on behalf of Margaret, Dorothy, or the estate before these proceedings commenced, which might have allowed for any loss to be evaluated in the investigation (and notice given to Mr O'Brien to enable him to respond), and no claim was made until after the hearing concluded including the hearing of evidence as to any relevant facts.

[70] [2021] VCAT 143.

[71] [2019] VCAT 76.

[73] This is not to suggest that a compensation order would necessarily have been available to the estate under Part 5.5. The estate was not a complainant, and made no request to the Commissioner before the VCAT proceedings commenced.

[74] and discussed in more detail later.

[76] Affidavit of Martin Watts 6 December 2024, [5]-[9].

[78] Dorothy has dementia and is living in aged care.

[79] Tucci v Victorian Civil and Administrative Tribunal & Anor [2010] VSC 425 at [41].

[80] Legal Services Commissioner v Maguire [2014] VCAT 974 ('Maguire'); Legal Services Commissioner v Barlow [2014] VCAT 973 ('Barlow'); Victorian Legal Services Commissioner v Rhoden [2015] VCAT 1546 ('Rhoden').

[81] Legal Profession Act 2004 (Vic).

[84] At [210]. No fine was ordered, however the matter was referred to the Supreme Court of Victoria with a recommendation that the respondent be removed from the roll of practitioners. Cited in Victorian Legal Services Commissioner v Zaitman (Corrected) [2019] VCAT 1100.

[85] At [73]-[89]; and [450]-[487] in the context of charges 33/34 which were not proved.

[86] Likely to be prejudicial to, or diminish public confidence in, the administration of justice, or to bring the profession into disrepute.

[87] Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic).

[88] Charges 3 and 5 were struck out on the basis that the emails the subject of these charges are included in the emails the subject of Charge 1 and the broader findings in relation to them.