The applicant sought orders preventing the respondent from accepting any appointment to act as a executor or administrator of a deceased estate. The Tribunal considers such orders to be outside its jurisdiction.
The applicant also sought the suspension of the respondent's practising certificate. As the respondent does not hold a practising certificate no such suspension is possible. However, the undertaking given by the respondent not to apply for a practising certificate in the future deals with this aspect.
[2]
The applicant also sought an order that the respondent be referred to the Supreme Court of Victoria pursuant to s 4.4.17(a) of the Legal Profession Act2004 with a recommendation that his name be removed from the local roll. The basis upon which the applicant made a request for such an order is that the respondent is not a fit and proper person because -
He has engaged in a course of conduct over a number of years;
The conduct includes provision of positive false information in each matter, to varying degrees;
The conduct has impacted (and continues to impact) large numbers of beneficiaries to whom he owed strict fiduciary duties, both financially and personally;
The conduct resulted in significant personal financial gain, contrary to basic fiduciary principles;
The respondent has demonstrated no real insight into his wrongdoing; and
The respondent has made no steps towards restitution, or otherwise demonstrated contrition or remorse.
Removal from the Roll of Practitioners occurs when the Supreme Court determines that a practitioner is presently and indefinitely unfit to remain on the Roll.[1] Any recommendation of the Tribunal does not bind the Court which will make its own independent assessment of the question.[2] A recommendation by the Tribunal is likely to be appropriate if the Tribunal considers that there is a reasonable prospect that the Court will make the order and/or the circumstances are such that a removal order appears to be called for and the question ought to be referred to the Court for consideration.
The Tribunal considers that it is appropriate to refer this question to the Supreme Court with a recommendation that the respondent's name be removed from the local roll.
[3]
The respondent having given an undertaking to the Tribunal that he will not at any time in the future apply for a practising certificate enabling him to practise law or otherwise seek to engage in legal practice in any Australian jurisdiction, he is reprimanded in relation to each of the charges of which he has been found guilty.
[4]
By consent the respondent is to make restitution payments as follows:
[5]
To the Cleur estate in the amount of $3,724.63 by no later than 26 September 2015.
2. To the Francis estate in the amount of $$2,319.59 by no later than 26 September 2015.
[6]
To the Barber estate in the amount of $14,890.00 by no later than 31 December 2015.
[7]
To the Games estate in the amount of $38,500.00 by no later than 31 December 2015.
2. To the Farrell estate in the amount of $16,000.00 by no later than 31 December 2015.
3. To the Tomkins estate in the amount of $13,200.00 by no later than 31 December 2015.
4. To the Pearce estate in the amount of $48,748.70 by no later than 29 February 2016.
5. To the Perry estate in the amount of $220,000.00 by no later than 1 June 2016.
[8]
The parties have agreed that the applicant's costs in the sum of $26,766.00 are to be paid by the respondent by no later than 1 June 2016. This is reflected in Order 5.
[9]
[1]Legal Services Board v McGrath (No. 2)[2010] VSC 332, per Warren CJ.